Chapter 3.3. Occupational Safety and Health Appeals Board
Article 4. Hearing

§376. Time and Place of Hearing.

(a) Appeals shall be heard promptly.

(b) Appeals relating to a special order, order to take special action, the reasonableness of the abatement period and an expedited proceeding shall be given priority over other proceedings.

(c) When the Appeals Board is notified that a case is being reviewed by the Bureau of Investigations or any prosecuting authority, the Appeals Board shall delay the hearing until notified that review is concluded or for a period not exceeding three years, whichever occurs earlier. If the Appeals Board is notified that criminal charges have been filed, the Appeals Board shall subsequently extend the delay until completion of the criminal case, which shall be deemed to occur on the date of a verdict of not guilty, a dismissal of the case by a court, or the date of sentencing after a verdict or plea of guilty or no contest. The Appeals Board may also delay the case beyond three years from the date of the incident on the written request of a party or prosecuting authority if necessary to allow the Bureau of Investigations or any prosecuting authority to conclude its review or criminal prosecution of the case.

(d) A hearing may be conducted by videoconference as provided in Government Code Section 11440.30 of the Administrative Procedure Act, if each participant in the hearing has an opportunity to participate in and to hear the entire proceeding while it is taking place, to observe the exhibits, and to observe the hearing participants to the extent feasible.

(e) For each hearing, other than expedited proceedings set pursuant to section 373, the Appeals Board shall determine, and include in any notice of hearing, the following information: the date(s), time(s), and length for the hearing; the format for conducting the hearing, whether in-person or by videoconference or a combination thereof; and the physical location of the hearing if the hearing includes an in-person format. If a videoconference hearing is selected, the notice of the hearing shall provide instruction on how to participate in the videoconference, identify the necessary technological equipment, and indicate what to do if technical problems arise.

(1) Factors and criteria relevant to these determinations, which may be addressed or discussed at prehearing or status conferences, include, but are not limited to, the following:

(A) Evidentiary presentation and case management issues;

(B) Whether multiple hearings can be set before an Administrative Law Judge on the same day without necessitating a continuance;

(C) The parties' and Administrative Law Judge's projection of the length of time needed for the hearing;

(D) The place of employment where the violation is alleged to have occurred;

(E) The location and suitability of Appeals Board hearing venues;

(F) The availability of Administrative Law Judges, witnesses, and parties;

(G) The location of the parties and the witnesses;

(H) Transportation barriers or travel distance required for attendance at a hearing, for any party or witness;

(I) Hardship caused by time away from current employment or other responsibilities that would be required of a party or witness in order to attend a hearing;

(J) Inability of a party or witness to secure care for children, other family members, or dependents that would unduly hinder travel to a hearing;

(K) The health and safety of parties, witnesses, representatives, and Appeals Board staff;

(L) Any factors requiring a more expeditious hearing date;

(M) Stipulations of the parties;

(N) Other hardships or impediments raised by a party or witness;

(O) Any other fact deemed relevant by the Administrative Law Judge or Presiding Administrative Law Judge.

(2) For hearings set for the videoconference format under subdivision (e) or (g), in whole or in part, the Appeals Board may issue orders requiring prehearing lodging of proposed exhibits via OASIS. Prehearing lodging of exhibits shall not be required more than three working days prior to the hearing. The Appeals Board will not review or consider any lodged documents for substance until introduced by a party or representative at hearing.

(A) Notwithstanding the existence of an order requiring prehearing lodging of exhibits, the Appeals Board may grant parties the opportunity to utilize additional exhibits during the hearing not previously lodged, upon a showing that good cause exists, that no prejudice would occur, or such other showing deemed sufficient by the Appeals Board in its discretion.

(3) If the Appeals Board orders that the hearing occur by videoconference under subdivision (e) or (g), in whole or in part, and a witness, subpoenaed person, party, or representative contends, in a reasonable amount of time prior to the hearing, that they do not have access to the technological equipment necessary to attend, comply, and/or conduct the hearing by videoconference, the Appeals Board will make facilities available where they can access necessary equipment. The Appeals Board may require evidence regarding such claims before making facilities available.

(f) During any prehearing or status conference, each party and party representative shall be prepared to discuss whether to set the matter for a hearing in person, by videoconference, or combination thereof, and be prepared to discuss any relevant criteria set forth in subdivision (e)(1). The Appeals Board may require evidence supporting the application of these criteria to the specific case.

(g) The Appeals Board shall set the date(s) for hearings for expedited matters pursuant to section 373. An expedited hearing shall be set for the videoconference format. The Appeals Board may, in its discretion, modify the expedited hearing format after it is initially set. If a party believes that the videoconference format would be inappropriate for the expedited hearing, it may request, either at the status conference or pursuant to the procedures set forth in subdivision (h), that the Appeals Board modify the hearing format to an in-person hearing, with reference, without limitation, to the relevant criteria set forth in subdivision (e). The Appeals Board may require evidence supporting the application of these criteria to the specific case.

(h) Government Code section 11440.30, subdivision (b)(2), permits a party to object to the selection of the videoconference hearing format and requires the Appeals Board to consider the objection. Where a party objects to the Appeals Board's selection of the hearing format, except where otherwise directed by Administrative Law Judge, the objection shall be in the form of a written motion in compliance with section 371, identifying the requested change in the hearing. If the facts supporting the objection first become known after the hearing commences, the objecting party shall file the motion as soon as the facts supporting the motion become known. Factors relevant to the Appeals Board's exercise of discretion on objections include, but are not limited to, whether the objecting party has demonstrated that it will be prejudiced or its due process rights will be compromised if it conducts the hearing in the selected format, with reference to the criteria set forth in subdivision (e), without limitation. The motion must be accompanied by evidence in the form of either declarations (pursuant to section 347, subdivision (i)) or specific references to witness testimony and citation to the record. The Appeals Board may also reconsider the hearing format on its own motion at any time.

(i) For purposes of the Appeals Board's rules set forth in Chapter 3.3, when a hearing is ordered to occur by videoconference, the videoconference format of the hearing will constitute the place of hearing and hearing room. To the extent the rules set forth in Chapter 3.3 provide a right to appear in person or personally, that right is satisfied by the videoconference appearance. Further, subpoenas may be issued pursuant to section 372.2, either subdivision (a) or (c), requiring attendance of a person at the videoconference place of hearing, provided the subpoena includes sufficient instruction and information on how to participate in the videoconference, identifies the technological equipment necessary, and indicates what to do if technical problems arise. The Appeals Board shall furnish optional subpoena forms upon request for attorneys' use.

Credits

Note: Authority cited: Section 148.7, Labor Code. Reference: Sections 11410.20, 11415.10, 11410.40 and 11440.30, Government Code; and Sections 148.7, 149.5 and 6308(c), Labor Code.

History

1. Amendment of subsection (a) filed 8-14-85; effective thirtieth day thereafter (Register 85, No. 33).

2. Amendment filed 10-30-92; operative 11-30-92 (Register 92, No. 44).

3. Repealer and new subsection (c) filed 8-16-99; operative 9-15-99 (Register 99, No. 34).

4. Amendment of subsections (c) and (d) and new subsections (e)-(e)(5) filed 2-8-2012; operative 3-9-2012 (Register 2012, No. 6).

5. Amendment of section and Note filed 4-27-2023; operative 7-1-2023 (Register 2023, No. 17).