The IIPP Existential Crisis Part 2: The Repercussions of an IIPP Citation

This is the second of several posts on the IIPP “existential crisis” happening in California. To read the first post in this series, please go to our website: https://lisaprincelaw.com/the-prince-firm-blog/the-iipp-existential-crisis-part-1-why-is-this-regulation-so-common.  After you’ve reviewed that, you are ready to read this:

So, you have an IIPP citation from Cal/OSHA. Now what? Many times, an IIPP citation is issued with a negligible proposed penalty of less than $1,000.00. As such, it is easy for an Employer to look at this citation and decide to just pay the penalty and move on. In fact, Cal/OSHA will often encourage an Employer to just accept the citation. The Division views a General IIPP citation as “no big deal”, almost like a gift to the Employer. After all, why would you want to spend significantly more than the penalty amount to defend the citation? From a cost perspective, this makes sense. However, blankly accepting the citation as issued is problematic for a number of reasons. 

An accepted IIPP citation will remain on an Employer’s “OSHA record” for five years after the date that citation becomes final. (Title 8 CCR Section 334(d).) That means, should the Division inspect an Employer’s worksite again within those five years, and decide there is another IIPP violation, a citation classified as Repeat can be issued. Recall that Section 3203 is one of the most cited regulations by Cal/OSHA. As such, the likelihood of a IIPP Repeat citation is much greater than for just about any other citable regulation. 

The penalties associated with a Repeat violation can be significant. (T8 336(g).) And, what many Employers don’t realize is that any citation classification can be the subject of a Repeat. Even if you successfully negotiate a Serious IIPP citation to a General, or a General citation to a Notice in Lieu of Citation, any version of that IIPP citation can be used for a Repeat. In other words, it does not matter what the classification of the original citation was, it can be the basis for a Repeat.

Defending an IIPP citation can be challenging, as Cal/OSHA is resistant to acknowledging an employer’s compliance, regardless of the evidence or case law. Defending a Repeat citation is much more difficult. Not only do you need to prove compliance with the IIPP standard, but you also need to demonstrate that the new alleged violation is not a situation substantially similar to the original violation. With the overly general nature of the IIPP citing language, demonstrating that the two situations are not substantially similar is challenging. With a Repeat IIPP citation, the Division is not likely to withdraw, regardless of your defense. And, even if you achieve a settlement in which the Repeat designation is withdrawn, you will still have an IIPP citation remaining. Now you have two IIPP citations on your record, which means more opportunities for a Repeat, and even higher penalties in the future.

So, what to do when you receive an IIPP citation (even one classified as General with a $500 penalty)? Appeal it. Do everything you can to get that citation withdrawn. And, if you can’t get it withdrawn, narrow the scope of the factual allegation as much as possible, in order to narrow the potential scope of a Repeat citation. 

Stay tuned for our next installment in this series. We will address how the IIPP violation affects the Employers’ ability to present other defenses and what might be done to end this IIPP existential crisis. In the meantime, stay safe and reach out to our office with any questions.

 Regards,

 Lisa Baiocchi

theprincefirm