DOSH Gets Egregious in its Enforcement Against California Employers
The Severe Violator Enforcement Program (SVEP) is now in effect. The Division introduced the program internally with a Policy and Procedure update (P&PC-200). The program is not based upon an amendment of the California Labor Code or Title 8 Regulation and, apparently, required no public notice.
The policy, issued on November 29, 2023, is similar to a Fed/OSHA policy and is intended to meet the Fed/OSHA requirement that Cal/OSHA be as least as effective as Fed/OSHA. The designation as a severe violator earns an employer membership to the program. Membership may be achieved if Cal/OSHA issues the employer:
One or more citations classified as serious, high gravity and either willful, repeat or a failure to abate as the result of a fatality or catastrophe (three or more hospitalizations) inspection.
Two or more citations classified as serious, high gravity and either willful, repeat or a failure to abate as the result of a non-fatality or catastrophe inspection.
Any citation classified as egregious (more on this below).
Once an employer becomes a member of the SVEP, the Division is required to conduct one or more follow-up inspections, or refer the employer for inspection, within one year and no longer than two years after the previous citation becomes final. The inspection will assess the status of abatement of the previous allegations and inspect sites for similar or related hazards.
Membership may also result in a corporate level review of the employer and being the subject of a news release identifying the employer as a severe violator. Agreements to resolve appeals with the Division may require the severe violator to hire consultants, provide the Division with future job site information, and submit Log 300 information on a quarterly basis.
The Egregious Violator is a concept pending for Cal/OSHA. It was introduced by SB 606 and subsequent amendment of the California Labor Code in 2021. The amendment created a new classification of citation - the egregious citation. We heard little of this until just last month when the Division proposed amendment of Title 8 California Code of Regulations (CCR) to include the egregious classification.
Title 8 regulations currently define a willful citation as a violation where evidence shows that the employer committed an intentional and knowing violation of the law or was aware of an unsafe condition and made no reasonable effort to eliminate the condition. The Division’s proposal adds the new egregious violation that “is a willful violation” where other criteria are met.
It is unclear if the egregious violation must meet the definition of a willful violation with “enhancement” that moves it into the egregious classification or if the egregious classification is independent of the willful designation. Either way, the number of opportunities the employer has to become an egregious violator, and the subjective nature of the analysis, is alarming. The egregious classification may be based upon any of the following:
The employer has a history of one or more serious, repeat, or willful violations per 100 employees. Small employers beware.
The employer intentionally disregarded its responsibilities by failing to maintain an effective and operative Injury and Illness Prevention Program (the most cited regulation for many years) and other applicable regulations, ignoring hazards, or refusing to comply with the Act.
The employers conduct amounts to clear bad faith in the performance of its duty to comply with regulations.
Within the five years before the alleged egregious violation, the employer has ‘committed’ more than five violations (any classification) that have become final.
The egregious violator is subject to egregious penalties. Under the terms of the proposed amendment, an egregious violation will be issued for each instance of an employee exposed to the alleged hazard. Each citation will carry a penalty of between $11,337 and $158,727.
The enterprise-wide violation was also the subject of SB 606 and is part of the proposed amendment to Title 8. The proposal creates a rebuttable presumption that a violation is enterprise-wide if the employer has multiple worksites and the employer has a non-compliant written policy or procedure OR the Division has evidence of a pattern or practice of the same violation(s) on more than one site.
he enterprise-wide violation will require the employer to verify abatement at all sites covered by the citation. The classification also carries significant penalties including a proposed penalty multiplied by the number of sites covered by the citation at the time of inspection (not to exceed $158,727) and the potential penalties of up to $15,000 per day for failure to timely abate the alleged violative condition at any worksite.
These new programs and proposals raise a lot of questions. Not the least of which is how will the Division, in a time of desperately low resources, train inspectors to objectively apply the very subjective standards introduced by these amendments.
The Division has set an advisory meeting on August 19, 2024, to address the enterprise-wide and egregious violation proposals. www.dir.ca.gov/dosh/doshreg/Egregious-Violations/ . We hope that event will result in some information that will help employers navigate this new terrain.