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Archive of: Cal/OSHA Appeals Board

  • The Nine Rules of Cal/OSHA Inspections

    It’s no surprise, and we are not offended, that we have never been invited to sit in on any of Cal/OSHA’s training sessions. But over the combined four decades that we have been reviewing inspection files and representing employers at hearings we have been able to identify some of the main points that inspectors must be taking away from their classes on how to perform inspections, to conduct interviews and to write citations.
     

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  • Now Everybody's HIPP to It!

    The definition of "outdoor place of employment" in California's heat illness regulation [https://www.dir.ca.gov/title8/3395.html] (known as HIPP to those hip to it) was, depending on your viewpoint, affirmed last week by the California Court of Appeals First Circuit to protect workers reasonably expected to be exposed to outdoor heat, or expanded exponentially to reach employers who would never otherwise consider themselves to have outdoor work places.
     

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  • CA Supreme Court OK's Civil Penalties for Employers Beyond Cal/OSHA Penalties

    The California Supreme Court has found that the federal Occupational Safety and Health Act does not prevent the state from seeking civil penalties against employers for safety violations in addition to any penalties which Cal/OSHA may assess.
     

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  • Repeat Classifications: Fed/OSHA Can "Look Back" in Anger

    In an ideal world - or even a less imperfect one - employers could rely on a federal agency’s stated policies. But we now have more proof that employers who do so are bound to be disappointed.

    The Second Circuit of the federal Court of Appeals recently held that Fed/OSHA is not obligated to follow its own guidance to its inspectors in its Field Operations Manual (FOM, for you acronym phreaks). Specifically, Fed/OSHA was not bound by the guidelines for calculating the “look back” period for classifying a violation as repeat.

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  • Cal/OSHA's New Penalty Schedule: The Other Shoe Has Dropped

    Cal/OSHA's New Penalty Schedule, New Penalty Scheme

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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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  • When is a Roof Just a Roof?

    It was not a matter of harmless semantics when Cal/OSHA threatened to shut a job down in Oakland during October, 2012. That job was a 12-story hospital near completion. The point of contention was access to and egress from the roof of the building.

     

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  • Cal/OSHA Confined by New Confined Space Rules

    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.

     

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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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