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Legal experts who help defend employers with workplace safety violations say the recent uptick in fines and citations issued by the California Division of Occupational Safety and Health have less to do with employers being more careless and more to do with the way Cal/OSHA is operating.
According to a California Labor Enforcement Task Force report to the state legislature, in 2014 Cal/OSHA’s labor enforcement task force inspected 794 businesses and found 86% of them out of compliance, issuing 2,779 violations, 30% of them serious, totaling $1.3 million in fines. Two years later, Cal/OSHA inspected 813 businesses, finding 93% of them out of compliance, issuing 2,736 citations, 15% of them serious, all totaling $2.5 million in fines — nearly double the amount for the same number of citations from two years earlier.
“These numbers are quite staggering,” Megan Shaked, a San Francisco-based associate in the Cal/OSHA employment practice with Conn Maciel Carey L.L.C., said in a webinar on Tuesday that aimed to educate employers on Cal/OSHA enforcement.
“The takeaway here is… that these numbers may be more of a reflection of how Cal/OSHA is doing business,” she said, adding that it’s likely not due to any widespread increase in employer negligence.
Under new guidelines highlighted in the presentation, penalties have increased, spurred by changes at the U.S. Occupational Safety and Health Administration. Federal spikes in 2016 that, like Cal/OSHA did in 2017, nearly doubled maximum penalties for “other than serious,” or general, violations from $7,000 to $12,675. Fines for willful and repeat violations also leaped for Cal/OSHA, from a maximum $70,000 to $127,254 in 2016. Federal OSHA increased the same fines from $70,000 to $129,336.
Greater fervor in spotting violations is also an issue in California, where “… (Inspectors) are not going to leave until they find (a violation),” Ms. Shaked said in the webinar.
A spokeswoman for Cal/OSHA in an email Friday called this assertion “not true.”
“Cal/OSHA inspectors only issue citations when they find evidence of workplace safety and health violations. If employers believe the citation was issued in error, they have the right to appeal,” she wrote.
Andrew J. Sommer, a San Francisco-based partner in the Cal/OSHA and employment practice with Conn Maciel Carey, pointed to another shift in the rules in California affecting enforcement practices: employers cited for violations who have other sites statewide with similar violations.
“If you have multiple facilities… any time you evaluate a (Cal/OSHA citation), you have to look at other facilities,” said Mr. Sommer, adding that all facilities must be aware of any Cal/OSHA activity at sister facilities and should work to correct similar issues identified as problematic.
The California Occupational Safety and Health Administration said Wednesday it has cited Alhambra Foundry Co. Ltd. for workplace safety and health violations following a confined space accident that resulted in the amputation of an employee’s legs, with $283,390 in proposed fines.