State Increases Cal OSHA Penalties

A new law in California gives increased strength to worker safety penalties and enforcement unlike that seen anywhere in the country.

The California Manufacturers Association contends that A.B. 1127, sponsored by Assemblyman Darrell Steinberg and signed into law by Gov. Gray Davis, criminalizes liability of workplace injuries and deaths more than in any other state.

This bill, which takes effect Jan. 1, 2000, will:

  • Allow prosecutors to charge a misdemeanor for serious violations, repeat violations or failure to comply; increase penalties from six months to a year in jail; and increase the fine from $5,000 to $200,000;
  • Allow prosecutors to charge a misdemeanor (a year in jail and a fine up to $100,000) or a felony (up to three years in state prison and a fine up to $250,000) for willful violations of safety or health provisions that cause death or permanent or prolonged impairment;
  • Prohibit the Department of Industrial Relation's Division of Occupational Safety and Health (Cal OSHA) from lowering penalties based on good faith or a good history;
  • Make the host employer responsible for the safety and health of contract employees; and
  • Extend from 30 days to a year the period of time within which a complaint may be filed with the state Labor Commission.

While there is little disagreement of whether the changes are significant, opinions vary greatly on the law's effect on the workplace.

"It makes necessary changes to the Cal OSHA program that will provide better protections to workers," said Maggie Robbins, a health and safety specialist with the California Labor Federation. "Many egregious types of behaviors were prosecuted as misdemeanors. This gives prosecutors more options to decide how to more appropriately prosecute bad-actor employers. It penalizes criminal behavior as a criminal act."

Giving more prosecutorial power to district attorneys is a step that is no needed because existing Cal OSHA penalties are a deterrent, said Willie Washington, legislative advocate for the California Manufacturers Association.

"No other state has such a law where it has three levels of felonies for workplace injury, impairment and death," Washington said. "We see no justification whatsoever for this bill to be signed. It has nothing to do with safety."

Instead, Washington said, the bill places too much burden on employers, who already face liability when an accident or death occurs and are considered guilty until proven innocent. Adding criminal statutes to worker safety is a cumulative effect that can overtake employers.

"By the time a case gets to the district attorney, several things have already happened to the employer," he said.

Robbins contends that the existing workplace penalty and enforcement system is not a deterrent. She noted that the average Cal OSHA penalty is $1,200. For those who believe the new law is too strict for employers, Robbins posed a couple of questions.

"When an employer allows working conditions to kill people, do you think it should be treated with a penalty of a couple thousand dollars or should be treated more severely?" she asked. "Do you think an employer who allows workers to be killed on the job should be treated like it's a traffic ticket or treated like it's a crime?"

The new law likely will not dramatically change the number of workplace injury or death cases that are prosecuted, said Jim Provenza, special assistant in the Los Angeles County District Attorney's Office.

The LA County office sends out an investigator when notified of a workplace death. From 10 percent to 20 percent of the cases result in criminal charges, Provenza said. Most other counties only are involved in a case if referred by OSHA after it investigates.

"We hope this will enable prosecutors to more effectively address the more serious cases and provide incentive for those who aren't complying with the law to begin complying," he said.

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