49 COR 40-8571 [¶23,189R]

EMPLOYER DEFENSES – DUE DILIGENCE Due diligence is an affirmative defense to which the employer has the burden of proof. Vague allegations of supervision, bereft of relevant detail, do not meet that burden.

EMPLOYER DEFENSES – ELEMENTS OF DUE DILIGENCE McCarthy Building Companies, Inc., Cal/OSHA App. 11-1706, DAR (Jan. 11, 2016) [Digest 22,555R], Harris Construction Company, Inc., Cal/OSHA App. 03-3914, DAR (Feb. 26, 2015) [Digest 22,450R] – Factors to be considered in evaluating the due diligence defense include: (a) whether the controlling employer exercised adequate supervision and oversight, and conducted periodic inspections of appropriate frequency; (b) whether the controlling employer implemented an effective system for promptly correcting hazards; (c) whether the controlling employer enforced the subcontractor’s compliance with safety and health requirements with an effective, graduated system of enforcement and follow-up inspections; (d) whether the controlling employer engaged in ongoing efforts to provide safety training to employees; (e) whether the hazard was latent and unforeseeable; and (f) whether the controlling employer researched the safety history of the subcontractor.

ASSESSMENT of CIVIL PENALTIES Cal. Code Regs, tit. 8, § 3395(f)(2)(C) (2022) – The violation was  classified as General and a penalty of $485 was assessed by the ALJ. Employer did not contest the classification or penalty. The Board affirmed.

Digest of COSHAB’s Decision After Reconsideration dated August, 19 2022, Inspection No. 1155042.


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