SACRAMENTO – Wednesday, an important workplace safety bill by Assemblymember Sandré R. Swanson (D-Oakland) cleared the California State Assembly.  The measure, Assembly Bill 1988, will improve the operation of the California OSHA Appeals Board in order to ensure that it is upholding its charge to protect California workers.  AB 1988 passed the Assembly floor by a 46-30 vote.

Assembly Bill 1988 is jointly sponsored by the California Labor Federation, AFL-CIO, the California State Building and Construction Trades Council, AFL-CIO, and Worksafe.

"The mission of the OSHA Appeals Board to uphold the purpose of California's workplace safety laws in a fair and prompt manner," said Swanson.  "Unfortunately, in recent years, it appears that the Board has instead served to find ways to let employers off the hook for violations of the law, even on very technical grounds.  This bill is designed to change that and get the Board back to its true purpose."

The OSHA Appeals Board adjudicates employer appeals of workplace safety and health violations cited by the Division of Occupational Safety and Health (DOSH).  The Federal government establishes a benchmark of 10 months for claims to be resolved following an appeal.  However, in recent years, the Board has fallen well short of that mark and has suffered a significant backlog of claims.  In some years, the Board has had as many as 8,000 appeals at a given time. The system is generally capable of handling only half that amount.  By some reports, cases are now averaging 17 months to be resolved (with some taking much longer).  This situation is likely to be exacerbated in light of the fact that the Governor's proposed budget contains a $222,000 reduction to the Board's funding, which the budget documents acknowledge will "limit appeal hearings."

Some reports suggest that the Board also greatly reduces the amount of penalties levied against employers for violations, with no clear standard as to how these penalties are reduced.  By some estimates, penalties are reduced by the Board down to thirty cents on the dollar, compared to the penalty proposed by DOSH. 

Unfortunately, unscrupulous employers may be "gaming" the system by filing frivolous appeals, because they know that it will take years to resolve their appeals, and penalties are likely to be greatly reduced.  This is made worse by the fact that an employer has no obligation to abate or correct a violation while an appeal is pending.  Therefore, an employer who is cited for an unsafe workplace is under no obligation to fix the hazard, while their appeal takes years to be resolved.

Therefore, AB 1988 will make a number of important changes to the Board process to bring it back to its stated mission.

Most importantly, the bill will require employers to abate a violation pending an appeal to the Board unless the employer makes a specific request and is granted a stay of abatement by the Board.  In essence, this would require the employer to ask for and prove they deserve to postpone fixing the violation, rather than the current practice where filing an appeal automatically frees the employer from fixing the violation while a hearing is pending.

Second, the bill requires employers to pay a filing fee when filing an appeal, similar to other contexts in which parties are required to pay a fee for an appeal.  This will further dissuade employers from filing frivolous appeals merely as a delaying tactic.  The filing fee would be recoverable by the employer if the citation is ultimately dismissed.

Third, the bill would authorize DOSH to prohibit a workplace practice that they deem to constitute an imminent hazard.  Current law only allows them to prohibit the use of dangerous machines or equipment.

“Under the current law, employers are not required to abate a workplace hazard until after exhausting their right to appeal the citation,” said Art Pulaski, executive secretary-treasurer of the California Labor Federation (the sponsor of the measure). “With literally thousands of employer appeals pending before the Cal/OSHA Appeals Board, bad employers shouldn't be able to take advantage of the lengthy appeals process in order to dodge their responsibility to maintain a safe and healthy workplace.”

“It is unconscionable that an employer that has been cited for a dangerous workplace hazard has absolutely no obligation to do anything during the years it takes their appeal to be resolved,” Assemblymember Swanson noted.  "We should err on the side of protecting workers from harm, which is the entire reason we have California's OSHA laws in the first place."

AB 1988 now heads to the State Senate.