Employment Law Commentary - Volume 25, No. 6 - June 2011

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Effective January 1, 2011, new Labor Code §6432 (AB 2774) revises the definition of a “serious” violation for the purposes of a Cal/OSHA citation and makes it much easier for the California Division of Occupational Safety and Health (DOSH) to prove a serious violation with its significantly higher fines than citations classified as either general or regulatory. The amendment was negotiated among the various Cal/OSHA stakeholders but was instigated because labor, health, and safety advocates, DOSH itself, and the federal government, which oversees the Cal/ OSHA program, believe that the number of serious citations sustained by the Cal/OSHA Appeals Board is lower than in other states because of the narrow interpretations of the Board— interpretations which the federal government does not believe are consistent with federal guidelines. Indeed, as recently appointed Cal/OSHA Division Chief Ellen Widess was recently quoted saying, AB 2774 “gives us the tools to cite more serious violations.”

With citations issued for serious violations potentially exceeding $100,000 (see www.dir.ca.gov/DOSH/citation.html), Cal/OSHA citations will need to be taken more seriously than perhaps they have been in the past. Indeed, in the past serious citations were appealed as a matter of course and often either reduced on appeal based on evidentiary issues, or negotiated based on a belief that the serious citation would be reduced to a general or regulatory citation or vacated by the Board. Such results will no longer be as likely under the new definition of serious. For these reasons employers would be wise to review their safety plans to make sure they are up to date and address all the various hazards that exist in the particular workplace.

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