"The only issue before the Board, hence the only issue decided by the Board, was whether the Division had the burden to prove lack of reasonable diligence by Overaa as an essential element of the Division's prima facie case in order to establish a general violation of Cal/OSHA [sic]."

With Overaa Construction's challenge to the Appeals Board thus characterized as a "burden of proof " case, the Court of Appeals, in a decision handed down on January 31, 2007, had an easy job finding that the Board's decision was correct: The Division does not have to prove lack of "due diligence" to show a general violation of a safety order.

But we all knew that.

The larger, more thorny issues faced by Overaa and other employers - not just "controlling" employers -- were left for another day. For example:

• Is the exercise of due or reasonable diligence an affirmative defense to the existence of a general violation?
• If not, what's the point of the Labor Code's repeated references to an employer's duty to take "reasonably adequate" steps toward workplace safety and to do everything "reasonably necessary" to protect worker safety and health?

For the full text of the Court's opinion, click on this link: http://www.courtinfo.ca.gov/opinions/ and scroll down to the Overaa decision.