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Archive of: Abatement

  • Will Repeats Become The New Normal

    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.”

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  • Abatement: Will This Conundrum Ever End?

    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. 






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  • Abatement 2016: Abatement Law Becomes a Growth Industry

    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. 



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  • Abatement 2016: How We Got To The Expedited Proceeding Process

    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.

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  • Abatement 2016: Multiple Traps for Unwary Employers

    The new abatement rules forced on us first by the Cal/OSHA Appeals Board in the adoption of Title 8 California Code of Regulations, section 373 and then the Legislature by the passage of Assembly Bill 1634, when taken together, are very difficult to understand, much less implement.  So much so, that they have thrown a lot of people into a tizzy, including Cal/OSHA’s inspectors and district managers, and the Board’s own judges. 





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