Chapter 3.2. California Occupational Safety and Health Regulations (CAL/OSHA)
Subchapter 1. Regulations of the Director of Industrial Relations

Article 4. Proposed Penalty Procedure

§335. Factors Considered in Assessing Civil Penalties.

In the assessment of civil penalties, the following factors shall be considered:

(a) The Gravity of the Violation--the Division establishes the degree of gravity of General and Serious violations from its findings and evidence obtained during the inspection/investigation, from its files and records, and other records of governmental agencies pertaining to occupational injury, illness or disease. The degree of gravity of General and Serious violations is determined by assessing and evaluating the following criteria:

(1) Severity.

(A) General Violation.

i. When the safety order violated pertains to employee illness or disease, Severity shall be based upon the degree of discomfort, temporary disability and time loss from normal activity (including work) which an employee is likely to suffer as a result of occupational illness or disease which could result from the violation. Depending on the foregoing, Severity shall be rated as follows:

LOW-- No time loss from work or normal activity; or minimum discomfort.

MEDIUM-- Loss of part or all of a day from work or normal activity including time for medical attention; or moderate temporary discomfort.

HIGH-- Loss of more than one day from regular work or normal activity including time for medical attention; or considerable temporary discomfort.

ii. When the safety order violated does not pertain to employee illness or disease, Severity shall be based upon the type and amount of medical treatment likely to be required or which would be appropriate for the type of injury that would most likely result from the violation. Depending on such treatment, Severity shall be rated as follows:

LOW-- Requiring first-aid only.

MEDIUM-- Requiring medical attention but not more than 24-hour hospitalization.

HIGH-- Requiring more than 24-hour hospitalization.

(B) Serious Violation.

The Severity of a Serious violation is considered to be HIGH.

(2) Extent.

i. When the safety order violated pertains to employee illness or disease, Extent shall be based upon the number of employees exposed:

LOW-- 1 to 5 employees.

MEDIUM-- 6 to 25 employees.

HIGH-- 26 or more employees.

ii. When the safety order violated does not pertain to employee illness or disease, Extent shall be based upon the degree to which a safety order is violated. It is related to the ratio of the number of violations of a certain order to the number of possibilities for a violation on the premises or site. It is an indication of how widespread the violation is. Depending on the foregoing, Extent is rated as:

LOW-- When an isolated violation of the standard occurs, or less than 15% of the units are in violation.

MEDIUM-- When occasional violation of the standard occurs or 15-50% of the units are in violation.

HIGH-- When numerous violations of the standard occur, or more than 50% of the units are in violation.

(3) Likelihood.

Likelihood is the probability that injury, illness or disease will occur as a result of the violation. Thus, Likelihood is based on (i) the number of employees exposed to the hazard created by the violation, and (ii) the extent to which the violation has in the past resulted in injury, illness or disease to the employees of the firm and/or industry in general, as shown by experience, available statistics or records. Depending on the above two criteria, Likelihood is rated as:

LOW, MODERATE OR HIGH

(b) The Size of the Business of the Employer--is based upon the number of individuals employed at the time of the inspection/investigation. Size of the Business is evaluated based upon the following classifications of the number of persons employed:

10 or fewer employees.

11 to 25 employees.

26 to 60 employees.

61 to 100 employees.

More than 100 employees.

(c) The Good Faith of the Employer--is based upon the quality and extent of the safety program the employer has in effect and operating. It includes the employer's awareness of CAL/OSHA, and any indications of the employer's desire to comply with the Act, by specific displays of accomplishments. Depending on such safety programs and the efforts of the employer to comply with the Act, Good Faith is rated as:

GOOD-- Effective safety program.

FAIR-- Average safety program.

POOR-- No effective safety program.

(d) The History of Previous Violations--is the employer's history of compliance, determined by examining and evaluating the employer's records in the Division's files. Depending on such records, the History of Previous Violations is rated as:

GOOD-- Within the last three years, no Serious, Repeat, or Willful violations and less than one General or Regulatory violation per 100 employees at the establishment.

FAIR-- Within the last three years, no Serious, Repeat, or Willful violations and less than 20 General or Regulatory violations per 100 employees at the establishment.

POOR-- Within the last three years, a Serious, Repeat, or Willful violation or more than 20 General or Regulatory violations per 100 employees at the establishment.

For the purpose of this subsection, establishment and the three-year computation, shall have the same meaning as in Section 334(d) of this Article.

HISTORY

1. Amendment of subsections (a) and (b) filed 6-29-77; effective thirtieth day thereafter (Register 77, No. 27). For prior history, see Register 77, No. 18.