OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
NOTICE OF LEGISLATIVE CHANGES EFFECTIVE 1/1/00
Legislation enacted in the 1999 legislative session and signed into law by Governor Gray Davis (Assembly Bill 1127) amended the Labor Code in several ways. Your attention is directed here to two of those changes.
One change is to the definition of a "serious violation." Prior to January 1, 2000, Labor Code Section 6432 provided:
6432. (a) As used in this part, a "serious violation" shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a serious exposure exceeding an established permissible exposure limit or a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in the place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.
(b) As used in this section, "substantial probability" refers not to the probability that an accident or exposure will occur as a result of the violation, but rather to the probability that death or serious physical harm will result assuming an accident or exposure occurs as a result of the violation.
Assembly Bill 1127 CHANGES THE DEFINITION TO READ:
6432. (a) As used in this part, a "serious violation" shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a violation, including, but not limited to, circumstances where there is a substantial probability that either of the following could result in death or great bodily injury:
(1) A serious exposure exceeding an established permissible exposure limit.
(2) The existence of one or more practices, means, methods, operations, or processes which have been adopted or are in use, in the place of employment.
(b) Notwithstanding subdivision (a), a serious violation shall not be deemed to exist if the employer can demonstrate that it did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.
(c) As used in this section, "substantial probability" refers not to the probability that an accident or exposure will occur as a result of the violation, but rather to the probability that death or serious physical harm will result assuming an accident or exposure occurs as a result of the violation. (Emphasis added.)
The practical significance of this change is that under the law before it was changed by Assembly Bill 1127, the Division of Occupational Safety and Health (the Division) had the burden of proving that the employer knew or could have know with the exercise of reasonable diligence of the presence of the violation before it could establish that the employer had committed a serious violation. The new legislation, which is effective on January 1, 2000, does not require the Division to prove such knowledge by the employer before it can establish that the employer committed a serious violation—in essence making it easier for the Division to prove that a serious violation was committed. Under the new law, it is up to the employer to raise the issue of whether it knew or could have known, with the exercise of reasonable diligence, of the violation. The employer has the burden of proving its lack of such knowledge if it wishes to raise this issue as a defense to what otherwise is a serious violation.
With an effective date of January 1, 2000, the new law applies to those citations issued by the Division on or after January 1, 2000. Appeals of citations issued before January 1, 2000 will be governed by the former law.
Employers should prepare their appeals of citations for serious violations that were issued by the Division on or after January 1, 2000, with this change in mind and prepare their defenses accordingly.
Another change, which we note here, also pertains to serious violations. Assembly Bill 1127 changed the maximum penalty for a serious violation from $7,000 to $25,000. As a consequence of this legislative change, a corresponding regulatory change has been made to what constitutes an initial base penalty for a serious violation, increasing it from $5,000 to $18,000. (See § 336(c)(1) of Title 8 of the California Code of Regulations.) This change to the penalties for serious violations also is effective on January 1, 2000, and applies to citations issued by the Division on or after January 1, 2000, but not to citations issued before then.
Other changes in the law effected by the enactment of Assembly Bill 1127 may be important to you, and you may find it advisable to read the entire law as enacted.