DIVISION OF OCCUPATIONAL SAFETY AND HEALTH
POLICY AND PROCEDURES MANUAL
CORPORATE CRIMINAL LIABILITY ACT
Issue Date: 1/1/91
AUTHORITY: California Penal Code §387.
POLICY: It is the policy of the Division of Occupational Safety and Health to implement the California Corporate Criminal Liability Act (Penal Code §387) by receiving notifications of serious concealed dangers, by maintaining appropriate records concerning any such notifications, by making a referral if the serious concealed danger falls within the jurisdiction of another governmental agency and by investigating any serious concealed danger which falls within the jurisdiction of the Division, as appropriate.
A. REQUIRED DIVISION NOTIFICATION
The Corporate Criminal Liability Act requires that any corporation or person who is a manager inform the Division of Occupational Safety and Health in writing of any serious concealed danger within 15 days after acquiring actual knowledge of the danger.
Serious concealed danger, used with respect to a product or business practice, means that the normal or reasonable foreseeable use of, or the exposure of an individual to, the product or business practice creates a substantial probability of death, great bodily harm, or serious exposure to an individual and the danger is not readily apparent to an individual who is likely to be exposed.
Manager means a person having both (1) management authority in or as a business entity and (2) significant responsibility for any aspect of a business which includes actual authority for the safety of a product or business practice or for the conduct of research or testing in connection with a product or business practice.
Actual knowledge means has information that would convince a reasonable person in the circumstances in which the manager is situated that the serious concealed danger exists.
If there is an imminent risk of great bodily harm or death, the corporation or manager is required to immediately notify the Division and the Division shall take steps to address the imminent hazard. See Section C.1.c.
B. REQUIRED EMPLOYEE WARNING
The Corporate Criminal Liability Act requires that any corporation or person who is a manager is required to warn its affected employees in writing of a serious concealed danger within fifteen (15) days of acquiring actual knowledge of the danger.
NOTE: The phrase "warn its affected employees" means give sufficient description of the serious concealed danger to all individuals working for or in the business entity who are likely to be subject to the serious concealed danger in the course of that work to make those individuals aware of that danger.C. DIVISION RESPONSE TO REPORT OF SERIOUS CONCEALED DANGER
If a written notification of a serious concealed danger is received by the District Office, the District Manager shall fax the document immediately to the Legal Unit Office at Division Headquarters with a copy to the Regional Manager and advise the Legal Unit by telephone that the document has been faxed.
If the District Office believes that the information contained in the notification constitutes an imminent hazard and the workplace which contains the hazard is under the jurisdiction of the Division, the District shall immediately inspect the workplace containing the imminent hazard.
NOTE: An imminent hazard is any condition or practice which poses a hazard to employees which could reasonably be expected to cause death or serious physical harm immediately or before the imminence of such hazard can be eliminated through normal enforcement procedures.
For non-imminent hazards under the jurisdiction of the Division, the District Office shall not initiate an inspection or investigation of the serious concealed danger until after notifying the Legal Unit. See Section C.2.b.(1)(a) and (b).
The Legal Unit shall maintain a permanent record of each notification of a serious concealed danger made to the Division.
If the serious concealed danger falls within the jurisdiction of another governmental agency, the Division's Legal Unit shall report the serious concealed danger telephonically within 24 hours to the appropriate governmental agency followed by transmittal of a formal written referral letter together with a copy of the notification received and a copy of the Serious Concealed Danger Intake Form.
NOTE: Appropriate governmental agency means agencies which have regulatory authority with respect to the product or business practice and serious concealed dangers of the sort discovered and include: (a) Division of Occupational Safety and Health; (b) California Department of Health Services; (c) Department of Agriculture; (d) County departments of health; (e) U.S. Food and Drug Administration; (f) U.S. Environmental Protection Agency; (g) National Highway Traffic Safety Administration; (h) Federal OSHA; (i) Nuclear Regulatory Commission; (j) the Consumer Product Safety Commission; (k) the Federal Aviation Administration; and (l) the Federal Mine Safety and Health Review Commission.
A -- Cal/OSHA 42A
B -- Cal/OSHA 42B
C -- California Penal Code §387 [EXAMPLE NOT AVAILABLE]