The 12 days of California Labor & Employment Series – Day 12: Employers Beware: More Power for Cal/OSHA

In the spirit of the season, we are using our annual "12 days of the holidays" blog series to address new California laws and their impact on California employers. On this twelfth day of the holidays, my labor and employment attorney gave to me: twelve drummers drumming and SB 606.

Employers certainly did not want increased Cal/OSHA power and additional citation categories. However, as of January 1, 2022, that is exactly what employers will receive. Under current law, Cal/OSHA can cite employers and impose penalties of certain maximum amounts depending on whether the violation is serious, uncorrected, or willful or repeated. They may also seek an injunction restraining certain uses or operations of employment that constitute a serious menace to the lives or safety of persons. Current law also establishes requirements for a prima facie showing by the division to warrant, at the discretion of the court, the granting of a temporary restraining order.

SB 606 implements two major changes. First, there is now a rebuttable presumption that a violation committed by an employer with multiple California worksites is enterprise-wide: either if the employer has a written policy or procedure that violates these provisions, or the division has evidence of a pattern or practice of the same violation committed by that employer involving more than one of the employer's worksites. An enterprise-wide violation is a new category of violation. Unless the employer is able to rebut the presumption, Cal/OSHA will issue a citation requiring abatement of the alleged violation for all of the worksites. One way to potentially rebut the enterprise-wide violation is if different worksites have different written policies and procedures. If an employer appeals a violation, the appeal will stay abatement. However, if the employer loses the appeal, abatement will be required across all of the employer's California worksites.

An enterprise-wide violation is subject to the same penalty provisions as "willful" or "repeat" violations, which in 2021 was $136,532 per violation. An enterprise-wide violation is thus extremely costly.

SB 606 also created another new violation, specifically an egregious violation. An egregious violation occurs when an employer has allegedly willfully and egregiously violated a Cal/OSHA rule. SB 606 specifies that an egregious violation can include any of the following:

• The employer, intentionally, through conscious, voluntary action or inaction, made no reasonable effort to eliminate the known violation.
• The violation resulted in worker fatalities, a worksite catastrophe, or large number of injuries or illnesses.
• The violations resulted in persistently high rates of worker injuries or illnesses.
• The employer has an extensive history of prior violations of this part.
• The employer has intentionally disregarded their health and safety responsibilities.
• The employer's conduct, taken as a whole, amounts to clear bad faith in the performance of their duties under this part.
• The employer has committed a large number of violations so as to undermine significantly the effectiveness of any safety and health program that may be in place.

Each instance of an employee exposed to an egregious violation shall be considered a separate violation for calculation of fines and penalties. In order to be found liable of an egregious violation, the conduct must have occurred within the five years preceding the citation. If an employer is found to have committed an egregious violation, this determination remains in effect for five years. After this, additional evidence is required to support any subsequent egregious violation citation.

SB 606 authorizes Cal/OSHA to issue a subpoena during their investigation of the policies and practices of an employer if the employer or the related employer entity fails to properly provide the requested information within a reasonable amount of time. They also have the power to enforce the subpoena. Moreover, SB 606 also provides that Cal/OSHA may seek an injunction restraining certain uses or operations of employment if it has grounds to issue a citation. This may negatively affect an employer if they are in the process of appealing a violation and the injunction is granted.

SB 606 does not do employers any favors. Multiple penalties for the same violation are a possibility. The penalties are steep. Employers with multiple worksites are likely to be significantly impacted by this new law. This category includes many retailers, manufacturers, warehouse/fulfillment centers and construction companies, just to name a few.

Employers with multiple locations should evaluate their written policies and procedures to ensure they are appropriate for each location. While it may be simpler to have the same policies and procedures, that may not be the wisest decision following the enactment of SB 606. It may be helpful for employers who do not have an OSHA compliance position to hire one or train a current employee to ensure proper Cal/OSHA compliance. Further, if an employer is subject to a Cal/OSHA inspection, it is strongly recommended to speak with your employment/OSHA counsel.