Any employers interested in starting a business in California should stick in their ear buds, put the Eagles’ “Hotel California” on continuous loop and settle in to read Senate Bill 829. As last year’s Assembly Bill 2774 was a game-changer for employers and Cal/OSHA, this bill turns the Appeals Board’s world upside down. The bill was written by labor and employee advocates (specifically the Building and Trades Council and Worksafe!), without input from – much less a head’s up to – Cal/OSHA, the Appeals Board or employers. Here’s a summary of some, but not all, of the changes the bill would make to the Appeals Board:
- The Appeals Board would no longer be an autonomous, impartial court. It would become an arm of Cal/OSHA, directed to “liberally construe” rules and regulations “to carry out justly the letter and spirit” of the law, and obligated to follow procedures adopted for it by Cal/OSHA.
- The circle of persons and entities who may become parties to an appeal would be enlarged to include any union with a collective bargaining agreement with the employer (not just an affected employee’s union), a deceased worker’s successors in interest and their attorneys, and “any other person or entity…in the interests of justice.”
- The Board must “ensure that all parties participate fully in any hearing…and in settlement.” Any party may object to a settlement reached between Cal/OSHA and the employer.
- Filing an appeal will no longer automatically stay abatement of an alleged hazard. Instead, the employer would have to advise the Board by verifying in its appeal that it contests abatement. If a party objects to staying abatement, the employer may pay $250.00 for the right to request an expedited hearing on the necessity of abatement.
- In addition to appeal and hearing notice requirements, the employer will also be required to serve copies of notices on “each union, if any, with which it has a collective bargaining agreement.”
- The Board “shall” allow Cal/OSHA to add, delete or amend any of its citations at any time before the appeal hearing is closed. Employers may be granted amendments upon proof justifying the amendment.
- The Board may award Cal/OSHA fees and costs up to $5,000 if the employer withdraws its appeal or loses after hearing, and the Board finds that the appeal was filed in “bad faith” or that the employer had no factual basis for filing the appeal in the first place.
- “Any person affected” by a decision may file a writ in Superior Court challenging the decision. “Any person affected” is defined as a party (see above) and “any person seeking to enforce the public’s right to safe and healthful working conditions…regardless of whether that person has a beneficial interest in the order or decision at issue.”
As we said, these are just the highlights of the bill. So far 33 entities, including the District Council of Iron Workers, have signed a letter to the author, Senator Mark DeSaulnier (D – Walnut Creek), opposing it. We will be commenting further on the bill’s provisions as it moves through the Legislature. Still interested in doing business in California? You can express your feelings about SB 829 to Senator DeSaulnier here: email@example.com