Chapter 3.3. Occupational Safety and Health Appeals Board
Article 1.5. Service of Documents and Duty to Notify Others of Appeal and Hearing

§ 361.3. Issues on Appeal.

The issues on appeal shall be limited to those arising out of the facts set forth in the Division action, and the grounds set forth in the appeal.

(a) When appealing a citation or citations, the employer shall specify the inspection number listed on the citation(s) and shall specify the individual citation(s) being appealed through reference to both the citation number and item number. For each appealed citation number and item number, the employer shall also specify which of the following components of the Division citation it is challenging in its appeal, as well as any affirmative defenses as described in subsection (b):

(1) The existence of the violation alleged in the underlying citation;

(2) The classification of the violation;

(3) The abatement period;

(4) The reasonableness of the changes required by the Division to abate the violation;

(5) The reasonableness of the proposed penalty.

(b) Affirmative defenses.

(1) An affirmative defense is a justification or excuse that, if proved by appellant, relieves the cited employer of all or some of the responsibility for the alleged violation. An affirmative defense must be timely raised by appellant. Examples of affirmative defenses that may be raised by the appellant include, but are not limited to:

(A) Independent employee action caused the violation.

(B) A different safety order applied to the work activity that is the subject of the citation, and appellant was in compliance with that other safety order. The different safety order should be identified.

(C) An exception exists in the California Code of Regulations, Title 8, which allows for the action that is the subject of the citation. The specific safety order containing the exception should be identified.

(D) The inspection that gave rise to the citation was invalid because the Division employee who inspected appellant's worksite failed to comply with laws governing administrative searches.

(E) Another affirmative defense. Other affirmative defenses may exist and can be asserted by the employer.

(2) If the appellant contends one or more affirmative defense(s) exist(s), the appellant may, but is not required to, provide a short, plain statement in writing setting forth the facts or circumstances which, if true, would prove the affirmative defense.

(c) If the appeal contests only the reasonableness of the proposed penalty, the issues on appeal shall be limited to the classification of the violation and the reasonableness of the proposed penalty.

(d) Amendments to the citation and the appeal may be made by parties in accordance with Section 371.2.

(e) If a citation is classified as a repeat violation pursuant to Section 334, subsection (d), the earlier citation established by failure to appeal or the entry of a final disposition by the Appeals Board shall not be in issue and shall not be a docketed appeal.

(f) If an employer files a timely appeal from a notification of failure to abate but did not file an appeal from the underlying citation, the existence of the alleged violation shall be an issue in the same hearing if the employer files a motion, in accordance with Section 371, demonstrating good cause for having not appealed the underlying citation.

(g) If the Division amends a citation for the sole purpose of granting or revoking an abatement credit, the employer may appeal the grant or revocation within 15 working days from receipt of the amended citation. The amendment shall not give the Appeals Board jurisdiction over any other issue.

Note: Authority cited: Section 148.7, Labor Code. Reference: Sections 148.7, 6317, 6319.5, 6601 and 6603, Labor Code.

HISTORY

1. Renumbering and amendment of former section 359.2 to section 361.3 filed 10-30-92; operative 11-30-92 (Register 92, No. 44).

2. Amendment of first paragraph, repealer of subsection (a) and new subsections (a)(1)-(5) filed 8-16-99; operative 9-15-99 (Register 99, No. 34).

3. Amendment of section and Note filed 8-2-2016; operative 10-1-2016 (Register 2016, No. 32).

4. Amendment of subsections (a) and (a)(5) filed 7-22-2020; operative 10-1-2020 (Register 2020, No. 30).