Flash Report: Governor Signs Bill Reforming “Serious Violation” Definition

By: Bess Shapiro

In a major victory for advocates of reform of the way serious violations are adjudicated by the Cal/OSH Appeals Board, Governor Arnold Schwarzenegger has signed AB 2774, perhaps the most significant occupational safety and health bill to come out of Sacramento in several years.  AB 2774, authored by Sandre Swanson (D-Oakland) takes several bold steps in redefining what is a serious violation and enhancing communication between employers and the Division of Occupational Safety and Health (DOSH). (See linked story.)

AB 2774 rewrites California Labor Code 6432, replacing current language with a rebuttable presumption that a serious violation exists if DOSH demonstrates that there is a “reasonable possibility” that death or serious physical harm could result from the hazard.

 Current language states that a serious violation exists if DOSH shows there is a substantial probability that death or serious physical harm could result from a violation. This requirement has made it difficult for DOSH to win before Cal/OSH Appeals Board, which interprets the requirement to mean that the division has to prove a 51% likelihood of death or serious injury. Administrative law judges routinely dismiss citations for serious violations or reclassify them to “general,” even in fatality cases, based on this requirement.

One of the most important aspects for employers and labor groups in AB 2774 is the requirement that inspectors attempt to get specific information from employers before issuing a citation. The intent is to give employers a better idea of what they would be cited for and give them the opportunity to abate the alleged hazard or rebut the alleged violation.

The bill also adds a provision that would require the Appeals Board to accept testimony by DOSH inspectors on serious violations if they demonstrate their Cal/OSHA-mandated training is current. The board has in the past disqualified inspector testimony for failing to have “specific familiarity” about a hazard.

AB 2774 is the culmination of several months of negotiation between employer groups, labor advocates and the Division to craft a piece of legislation that all sides could live with and advance the cause of health and safety. Legislative staffers and stakeholders say the direct involvement of the Department of Industrial Relations and the editorials from Cal-OSHA Reporter also helped drive the consensus.

The California Chamber of Commerce and a coalition of employer groups removed its opposition in August, increasing the odds that the governor would sign it.

Click here to see Cal-OSHA Reporter’s editorial on the subject.