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13 January 2017
While it’s nice to know we got our predictions of who Trump might appoint as Secretary of Labor partially right ( see our November 19, 2016 blog "Trump Won. So What?), we’re still on tenterhooks awaiting word on his appointee to the post of Asst. Sec’y Labor for OSHA.
12 December 2016
Starting New Year’s Day, changes to the definition and scope of Cal/OSHA’s Repeat classification will change dramatically. But there will be some lag time between adoption and implementation. Time which should be spent bullet-proofing your safety program.
Effective January 1, 2017 a citation can be classified as “Repeat” when the employer has “abated or indicated abatement of” an earlier violation for which a citation was issued, but the Division finds during a later inspection occurring within five years following the date that the earlier violation became final that the employer has committed a violation of ”a substantially similar” regulation anywhere in the state. The subsequent violation must be found to involve “essentially similar conditions or hazards.”
28 November 2016
Cal/OSHA has issued its revisions to the list of High Hazard industries for fiscal year 2016-2017 and it contains some big surprises. For example, the 2015-2016 list included 20 industries. The new list includes a breath-taking 42, an increase of over 100%. Twelve industries were dropped from the list but 35 were added.
This means a huge increase in the number of California employers vulnerable to inspection by Cal/OSHA’s two High Hazard Unit offices. Even if you have a good safety program and your company’s workers’ compensation claim experience modification rate (called “ex-mod” for short) is below the mean for your industry (that is, less than 1.0), you will still be considered a High Hazard employer if your industry is on the list.
18 November 2016
The early money on who will be the new Secretary of Labor under President Trump is going to three people: Victoria Lipnic, a Republican appointed by President Obama to the EEOC and Asst. Secretary of Labor under George W. Bush; Andrew Puzder, CEO of CKE Restaurants (Carl’s Jr. and Hardee’s); and Wisconsin Governor Scott Walker.
02 June 2016
Earlier posts on California OSHA’s new abatement rules focused on the old wise rule and the changed dynamic and conflict brought about by the new draconian one.
In case you couldn’t tell how we really feel about the new rules, let’s look at some “real world” issues California employers have had and the quandaries they’ve faced.
11 May 2016
02 May 2016
Fed/OSHA is in a rush to accomplish all it can before the curtain closes on the Obama Administration. Among their last-minute adoptions are new mandatory rules for permit-required confined spaces (PRCS) on construction sites. And Cal/OSHA was only too eager to assist by swallowing them whole with little thought to how they would work in conjunction with the pre-existing PRCS rules found in the General Industry Safety Orders (GISO), the Telecommunication Orders, and the Electrical Orders.
The new construction rules are complex and have been in effect since December 30, 2015, They almost wholly address confined spaces on multi-employer work sites. Funny thing is, the GISO confined space regulations also proscribe procedures to be followed on multi-employer work sites.
22 April 2016
Ron Medeiros died too young last week, at the home he loved so much. I knew him first as an attorney with the Division, then as a friend, and then as Of Counsel to the Robert D. Peterson Law Corporation.
Ron was the opposing Cal/OSHA attorney in my first hearing. Then, as always, he was courteous and professional. In those early cases he never sought to take advantage of a greenhorn. It wasn’t until I was reasonable seasoned that he took the gloves off and showed me how good he was at his practice.
05 April 2016
In our last blog we discussed how the Appeals Board was led by labor and workers’ advocacy groups to amend 8 CCR section 373 to provide an expedited hearing process for appeals of citations where the hazard was un-abated at the time the citation was issued.
No sooner had employers and Cal/OSHA begun to adjust to the “rocket docket” rules for expedited hearings than the same advocacy groups which had pressed the Board so hard decided that the amendments to 373 were insufficient.
The Board’s new program only addressed cases where abatement remained outstanding. (See our second blog on abatement) It left the rules for the calculation of penalties intact because those rules, including the automatic 50% abatement credit, were mandated by the Labor Code. Only the Legislature could change that.
21 March 2016
We know the song says, “It’s not where you start; It’s where you finish.” But to understand where we are and discern a way forward, we need to know where we were and where we are before we can know where we’re going. So, here is a brief history of abatement in California:
That Was Then: Back in 1972 when the then-new federal OSH Act came into existence, California already had an industrial safety program which was about 50 years old. Under that program, which continued when California was provisionally approved by Fed/OSHA as a “state-plan state,” penalties for violations were automatically reduced 50% on the expectation that employers would do the right thing and fix the cited hazards. Employers found to have falsely declared to have abated a hazard were - and still are - subject to further penalties of up to $15,000 per day as well as jail time.
California's law also provided that when an employer appealed a citation the obligation to abate would be suspended until the appeal was over. If the citation was dismissed, no abatement was required. If it was upheld, the clock on the employer's obligation to abate started ticking again. The logic for this was clear, at least to us in the employer community: If there really was no violation to support the citation, it follows that there was no hazard to be abated.
These rules applied to all penalty calculations and appeals, regardless of their classification.