Legislative Update: Broadening of Cal/OSHA Citation Authority (SB 606)

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October 13, 2021

Governor Newsom recently signed Senate Bill 606 [SB 606], strengthening the authority of Cal/OSHA, an entity familiar to most employers.

As background, after the creation of federal OSHA in 1971, California followed suit two years later giving parallel investigatory authority to its own agency, Cal/OSHA. Broadly, Cal/OSHA’s statutory duty is to put in place workplace safety standards that employers in California must adhere to. Cal/OSHA is also tasked with responding to worker complaints and investigating worksites where there is evidence that standards are not being met and, if necessary, penalizing employers who fail to meet standards and put their workers in unnecessary danger.

In 1990, federal OSHA promulgated an instruction that laid out the basis of the “egregious or violation-by-violation penalty procedure.” The instruction specifically laid out the rationale for the agency’s penalty procedure:

Over the past several years, in a limited number of cases OSHA has alleged a separate violation and proposed a separate penalty for each instance of noncompliance with OSHA recordkeeping regulations, with the safety and health standards, and with the General Duty Clause [Section 5(a)(1) of the Occupational Safety and Health Act (the Act)]. The resulting large aggregate penalties are part of a compliance strategy which improves the efficiency and effectiveness of the agency and conserves its limited resources… The large proposed penalties that accompany violation-by-violation citations are not, therefore, primarily punitive nor exclusively directed at individual sites or workplaces; they serve a public policy purpose; namely, to increase the impact of OSHA's limited enforcement resources. …

In this vein, SB 606 attempts to mirror the federal instruction. Here are the specifics:

1) SB 606 establishes a rebuttable presumption that an employer who has multiple worksites has committed an enterprise-wide violation if either of the following are true:

• The employer has a written policy or procedure that violates certain statutes and regulations.
• Cal/OSHA has evidence of a pattern or practice of the same violation or violations involving more than one of the employer’s worksites.

 
2) It prohibits Cal/OSHA from issuing a notice instead of a citation if either of the following are true:

• The employer’s violations are serious, willful, or arise from a failure to abate.
• The number of first instance violations found in the inspection, other than serious, willful or repeated violations, is 10 or more violations.

3) Requires Cal/OSHA to issue a citation to an egregious employer who Cal/OSHA believes to have willfully violated an occupational safety or health standard.

4) Defines “egregious violation” to mean a willful violation, where one or more of the following is true about the employer:

• The employer, intentionally through voluntary action or inaction, made no reasonable effort to eliminate the known violation.
• The violations resulted in worker fatalities, a worksite catastrophe, or a large number of injuries or illnesses.
• The violations resulted in persistently high rates of worker injuries or illnesses.
• The employer has an extensive history of prior violations of this section of Labor Code.
• The employer has intentionally disregarded their health and safety responsibilities.
• The employer’s conduct, taken as a whole, amounts to clear bad faith in performance of their duties to provide occupational safety to their employees.
• The employer has committed a large number of violations so as to undermine the effectiveness of any safety and health program that might be in place.
• The conduct underlying an egregious violation must have occurred within the five years preceding the citation. Once a violation is determined to be egregious, that determination remains in effect for five years.

5) Requires the Cal/OSHA appeals board to issue an enterprise-wide order of abatement to an employer if it found by Cal/OSHA that the employer committed an enterprise-wide violation.

6) Requires that any employer who commits an enterprise-wide violation may be assessed a civil penalty of not more than $123,709.

Thus, SB 606 attempts to codify the federal egregious violation standard at the state level and give Cal/OSHA the ability to stack penalties -- counting each employee affected by the violation as a separate violation for determining fines and penalties where the maximum penalty is per violation, per employee -- in cases where an employer has willfully and negligently refused to keep up safety standards.  If you have questions about the new rules or need help with a Cal/OSHA inspection or citation, contact McKague Rosasco LLP.