EXECUTIVE SUMMARY

OCCUPATIONAL SAFETY AND HEALTH
APPEALS BOARD

Field Sanitation Standard
and the $750 Minimum Civil Penalty
in Labor Code section 6712(d)(1)


On June 25, 1998, the Occupational Safety and Health Appeals Board issued six decisions interpreting California’s field sanitation standard and Labor Code section 6712(d)(1). The lead case is Emerald Produce Co., Inc., OSHAB 96-R1D2-2679 which sets forth the preliminary considerations in interpreting the applicable statutory and regulatory provisions. The holding from Emerald is applied to the unique fact patterns in the other five cases: Quang Trinh, OSHAB 93-R3D2-1697; Smith Brothers, A Partnership, OSHAB 96-R2D5-1188; Rangel’s Labor Contracting, OSHAB 96-R2D5-2288; Philip Giba Farms, OSHAB 96-R2D5-2543; and Manual M. Rodriguez, OSHAB 96-R2D5-2789.

The Board took the extraordinary step of inviting the filing of amicus briefs by the public, to make certain it had the fullest understanding of the competing legal interests. The invitations for amicus briefs included a posting on the Board’s internet website. Amicus briefs were filed by the California Labor Federation, AFL-CIO; the Farm Bureau; the Western Growers Association and the California Farm Labor Contractors Association jointly; and the Agricultural Council of California. The California Rural Legal Assistance Foundation, granted intervenor status, also filed an amicus brief.

History of the Field Sanitation Standard

In 1989 the federal government issued a new field sanitation standard which obligated California to promulgate its own occupational safety and health regulations in the field sanitation area which were at least as effective as the federal government’s. To effectuate that mandate, the California Legislature passed Labor Code section 6712 and the Occupational Safety and Health Standards Board promulgated specific field sanitation regulations to ensure that employees who work in California’s fields are not deprived of basic and essential sanitation facilities.

Labor Code section 6712 contains provisions intended to ensure that the new field sanitation standard is effective. These provisions include Labor Code section 6712(d)(1), which provides that "in no case shall the penalty [for a violation] be less than $750" for "any employer who fails to provide the facilities required by the field sanitation standard."

Role of the Occupational Safety and Health Appeals Board

From 1992, when the field sanitation standard became effective, through September, 1997, approximately 500 appeals have been filed with the Appeals Board for field sanitation citations covering approximately 30 separately stated requirements. The decisions issued by the administrative law judges on these appeals, while not-precedentially-binding, have given varying interpretations to the field sanitation standard and the minimum $750 penalty set forth in Labor Code section 6712(d)(1). None of these appeals came before the Appeals Board in a posture that allowed the Board to issue a precedentially binding decision after reconsideration which would give guidance in interpreting the field sanitation standard.

The Board therefore issued orders of reconsideration on its own motion in six cases in order to provide a comprehensive interpretation of the applicability of the $750 minimum civil penalty provided in Labor Code section 6712(d)(1) to failures to provide facilities required by the field sanitation standard.

Categories of Violations

In analyzing the varying failures to meet the field sanitation standard the Board classified the violations into three categories: (1) an employer fails to provide a facility such as a toilet, handwashing facility, or drinking water at all; (2) an employer provides a facility, but an integral component of the facility is missing for a substantial period of time; (3) the facility is provided but a part of the facility, usually one that can be characterized as a "supply" such as single-use cups or toilet paper rather than a core element, is absent for only a brief time.

The Board sought to distinguish between employers who neglect completely, or for substantial periods of time, to make efforts to ensure that all required facilities are available to employees from those who take all the steps that should result in complete facilities being available, but at the time of the inspection are found to be lacking some supply that they normally make available. Assessing the same substantial minimum civil penalty for both a total "failure to provide" and a brief, non-pervasive "failure to maintain" might have the unintended effect of discouraging employers who are endeavoring to meet their field sanitation responsibilities.

In order for the Board to find that an employer failed to maintain supplies, rather than failed to provide a required facility, the employer must show that it had an inspection system in place to detect the absence of supplies and an available quantity of supplies to ensure that that any absence is both infrequent and for a relatively brief period of time. This failure to maintain supplies is still a violation of the field sanitation standard, but not one that automatically subjects an employer to the $750 minimum civil penalty. Employers who cannot show such consistent efforts will be found to have failed to provide the facilities, and will be subject to the $750 minimum civil penalty.

Rebuttable Presumption

Categories (1) and (2) trigger the $750 minimum penalty. Where a supply is found to be missing, it will be presumed to be a violation of category (2) unless employer rebuts the presumption and brings itself into the third category—failure to maintain. The employer must show that (1) it had a system for periodically checking to detect the absence of required supplies; (2) the absence was infrequent and brief; and (3) it had taken steps to have supplies available. If all three elements are shown, the $750 minimum penalty will not automatically apply, and a civil penalty will be computed in accordance with the normal penalty setting provisions of the Act and the Director’s regulations (Title 8, California Code of Regulations, 335-336).

Summary of Cases

EMERALD PRODUCE, CO., 96-R1D2-2679

Does the mandatory $750 minimum civil penalty apply because employer failed to provide single-use drinking cups, or is the absence of such cups a failure to maintain the drinking water facility–not automatically triggering the $750 minimum penalty.

Here, employer had an adequate supply of drinking water in a 15-gallon water jug–not fitted with a fountain. The inspector did not see any cups; the foreman had none; and the supervisor who had the cups was absent from the site. The presumption is that this absence of cups constitutes a failure to provide and the $750 minimum applies. Employer did not rebut that presumption, as it did not show that the absence of cups was brief and that it had a system in place to inspect for and replenish missing supplies.

Holding: A civil penalty of $750 is assessed. 

MANUEL M. RODRIGUEZ, 96-R2D5-2789

Does the mandatory $750 minimum civil penalty apply because employer failed to provide toilet paper?

The inspector observed no toilet paper in the dispenser of four toilets. Employer claimed extra supplies were in the superintendent’s truck—and neither the superintendent nor his truck were present.

This absence of toilet paper presumptively establishes a failure to provide a required facility and triggers the minimum $750 penalty. Employer, however, rebutted that presumption by establishing that the absence of toilet paper was a failure to maintain—not a failure to provide by showing the following: 1) it had a system of regular inspections and an available inventory of required supplies; 2) it cleaned and restocked each morning; 3) it conducted regular inspections and restocked during the work day; and 4) the absence was just coincidental with the inspector’s visit.

Holding: A civil penalty of $150 is assessed. The Board stressed that, "[T]he importance of Employers being consistently diligent in maintaining toilet facilities, including an adequate supply of toilet paper, cannot be overstated. As a matter of basic sanitation and human dignity, nobody, including those who work in California’s fields, should be deprived of something so basic and essential."

PHILIP GIBA FARMS, 96-R2D5-2543

Does the mandatory minimum $750 penalty apply to the failure to supply single-use drinking cups?

The inspector found that employer had supplied the employees with an adequate amount of potable drinking water from a container not fitted with a fountain. There were no single-use cups—only one common plastic cup.

This absence of single-use cups preemptively establishes a failure to provide a required facility. Employer did not present sufficient evidence to rebut this presumption. In fact, employer consciously decided to provide one common cup because it was the preference of the employees. This was a failure to provide, not a failure to maintain.

Holding: A civil penalty of $750 is assessed.

SMITH BROTHERS, A PARTNERSHIP, 96-R2D5-1188

Does the mandatory minimum $750 penalty apply to the failure to supply single-use drinking cups?

The inspector found that employer had supplied the employees with an adequate amount of drinking water from coolers, but the coolers were not fitted with a fountain, nor were there any single-use cups available on or around the coolers.

This absence of single-use cups presumptively establishes a failure to provide a required facility. Employer presented sufficient evidence to rebut this presumption by establishing that 1) it had a regular system of inspection of the facilities in place; 2) the facilities were checked for supplies throughout the workday; 3) the employees were only without cups for an hour—not long enough for employer to have detected the violation and replenished the cup supply.

Holding: A civil penalty of $275 is assessed for the failure to maintain.

RANGEL’S LABOR CONTRACTING, 96-R2D5-2288 AND 2289

Does the mandatory minimum $750 penalty apply to the failure to supply single-use drinking cups?

The inspector found that employer provided drinking water—but there were no single-use cups available and the jug did not have a fountain. This absence of cups presumptively establishes a failure to provide a facility. Employer did not present sufficient evidence to establish that the absence of cups was a failure to maintain. While employer did show that it had supplies available in reasonable proximity to the work site, it did not show that it had any system for inspecting the facility at the start of the work day or periodically during the work day.

Holding: A civil penalty of $750 is assessed.

Did employer’s reliance on another employer’s toilet facilities satisfy its obligation to provide a toilet facility?

The inspector found that the closest toilet facilities [two toilets] were 1/4 mile from the site, but they did not belong to employer, nor were they adequately equipped with required toilet paper and handwashing facilities. Employer had his own toilet facilities at another site and did transport them to the work site—about an hour and 1/2 after work commenced. This absence of toilet facilities presumptively establishes that employer failed to provide the required facilities. While employer claimed that he had been told there were toilets at the site, he presented no evidence that he had a practice of inspecting the field sanitation facilities before work started or while employees were working. The inspector did not cite employer for the inadequate toilet facilities that belonged to another farm labor contractor [the facilities 1/4 mile away], but instead cited employer for a failure to provide its own toilet facilities.

Employer failed to establish that it had provided toilet facilities—either by evidence that it had contracted with a source that did provide such required facilities, or that it had assumed any responsibility for ensuring that the facilities were in compliance with the field sanitation standard.

Holding: A civil penalty of $750 is assessed.

QUANG TRINH, 93-R3D2-1697 AND 1698

Does the mandatory minimum $750 penalty apply to the failure to provide potable drinking water?

The inspector found no drinking water or single-use cups at the work site. The only evidence provided by employer was that it had a hose nearby from which employees could obtain water. The absence of a drinking water facility establishes that employer failed to provide a required facility. Employer’s evidence was insufficient to rebut this presumption.

Holding: A civil penalty of $750 is assessed.

Does the mandatory minimum $750 penalty apply to the failure to provide a toilet with a handwashing facility?

The inspector found no handwashing facility at the toilet. This constitutes a failure to provide a facility required by the field sanitation standard. Employer presented no evidence to rebut this.

Holding: A civil penalty of $750 is assessed.