The Unfortunate Consequences of a Short-Sighted Cal/OSHA Audit
We hope this finds you safe and well. We thought some recent developments at Cal/OSHA call for your consideration.
Generally speaking, the Division’s approach to settlement discussions has taken a rather non-negotiable turn. This new approach is ostensibly based on a recent audit that was performed at the behest of the California legislature. The resulting report found that Cal/OSHA’s staffing issues have caused the Division to under-inspect in cases of complaints, serious injuries and fatalities. While we may certainly agree that the staffing crisis at Cal/OSHA is problematic, the audit, and the ensuing news articles, miss the context (e.g., https://www.pressdemocrat.com/article/news/california-osha-inspectors-dont-visit-worksites-even-when-workers-are-inju/).
For example, the audit questioned Cal/OSHA’s practice of negotiating penalties and classifications in order to settle cases. Settling cases with employers is an important part of the appeal process. Settlement avoids the time and cost of hearing, and generally yields a reasonable outcome for both sides. However, California legislators and auditors failed to take into consideration that each case has its own set of facts and evidence. Not all cases, or citations, are created equal, nor are they always based on evidence that will actually prove the alleged violation. Questioning this practice, across the board, has had serious consequences.
n unfortunate outcome of this one-sided audit is that Cal/OSHA has seemingly stopped such practices of negotiation where a Serious Accident-Related citation has been issued. Briefly, a Serious Accident-Related citation is one in which the Division has alleged a serious violation, which directly caused a serious injury, illness or death. In other words, the Accident-Related characterization is added to a serious citation where an injury, illness or death has occurred. It comes with a significantly increased penalty that can only be adjusted for the size (number of employees) of the employer.
Regardless, treating all cases with Serious Accident-Related citations as being the same ignores the facts, the Employer’s safety programs, implementation of those programs, abatement, and other factors. In short, this new policy disregards all the factors that the Division is required to consider under California Labor Code Section 6432. In its rush to respond to this audit, the Division has lost sight of this requirement. Even when presented with evidence of no violation, the Division seems determined to maintain the citation, in order to satisfy the legislature. Now, if an employee has sustained a serious injury, the citation must be classified as Serious, and Accident-Related, without consideration of the employer’s due diligence. This ignores the fact that all cases are not created equal.
Unfortunately, the Division’s unwillingness to work with Employers on resolving appeals will only lead to more and more cases going to hearing. It will not solve the staffing issue, nor will it allow the Division to conduct more inspections. Notably, the staffing shortage at Cal/OSHA affects more than just the enforcement branch, it also affects the legal unit. Simply put, the case load at the legal unit cannot be sustained. In fact, we have already seen the influence, with further backlog of cases at the Appeals Board, and significantly more hearings on calendar that will not settle. This will undoubtedly affect small Employers. The time and cost of a hearing is significant, and small Employers will be forced to accept citations that may be legally questionable in order to avoid the cost of a hearing.
The message from the Division these days appears to be: you may have a great program, you may have tried to do the right thing, there may be mitigating factors, but it doesn’t matter.
Folks, it may be time to contact your legislators, the governor, or anyone else who will listen. The system here is broken, and the Division appears to no longer be committed to its mission of assisting Employers to be better and safer. The Division is now in the business of collecting penalties and satisfying certain legislators who don’t understand how this system works. This is an unsustainable practice, and Employers will quite literally pay for it.
As always, stay safe, and reach out with any questions. Thank you.
Regards,
Lisa Baiocchi Senior Associate