A Guide to Workers' Health & Safety Rights & Filing a Cal/OSHA Complaint

This guide was written for Worksafe, a California COSH group, and is available in hard copy. Contact fschreiberg@kazanlaw.com or call (510) 302-1071. Have you completed all the preliminary steps to resolve your occupational safety and health problem? If so, you may want to skip to the section on how to file a Cal/OSHA complaint. But remember there is helpful information in the earlier parts of this GUIDE that will make your complaint more effective. Click here to skip to instructions on filing a complaint.

By clicking on a listing in the table of contents you will linked to that section.

Click here for a PDF version of the GUIDE.

 

Table of Contents

  1. HOW DO I GET SOME Health and Safety ACTION?
    1. Workers Have a Right to a Safe Place to Work
    2. Who is Responsible for Safety on the Job?
    3. Who is Responsible on Multi-Employer Worksites? (AB 1127)
    4. How Do I Get Information to Help Solve OSH Problems?
    5. Actions Related to Safety & Health
    6. What Do I Do When Something Goes Wrong?
      1. Complain to the Correct Government Agency(s)
      2. Who Else Will Help?
      3. Can a Citizen Be a Toxic Cop?
      4. Summary
      5. Private Remedies
      6. The Labor Code Private Attorneys General Act of 2004
    7. HOW TO SELECT AN ATTORNEY?
      1. What Do Lawyers Do?
      2. What Role Should You Play?
      3. Tips for Picking an Attorney
      4. Attorney Fees
      5. Shop to Protect Your Rights
      6. Once You've Got Your Attorney...
  2. WHAT IS MY ROLE IN THIS SYSTEM OF LAWS?
    1. An Overview of the Legal Structure Relating to OSH
    2. The Legislative Branch Makes Laws
    3. Regulations or Standards
    4. Variances
    5. The Executive Branch Enforces Laws
    6. The Judicial Branch Interprets Laws
  3. OVERVIEW OF THE FEDERAL LAW
  4. OVERVIEW OF THE STATE LAW
    1. Cal/OSHA Enforces the Employer's Duty To Provide a Safe Place to Work?
      • Administrative Enforcement
      • Workers Can Start the Process with a Complaint
      • Abatement is the End of the Process
    2. Organization Chart
      • Where Does Cal/OSHA fit in?
      • Where Does the OSH Standards Board fit in?
      • Where Does the OSH Appeals Board fit in?
      • Where Does the Consultation Service fit in?
      • DIR Organization CHART (pdf)
      • Cal/OSHA Organization CHART (pdf)
  5. THE CAL/OSHA INSPECTION, CITATION and APPEAL PROCESS
    1. Cal/OSHA Inspects in Response to:
      1. Complaints
      2. Accidents
      3. Follow-ups
      4. High Hazard List
      5. Permits
      6. Special Inspection Programs
    2. HOW DO YOU FILE A COMPLAINT?
      1. Where to file
        Worksafe Model Complaint Form (pdf)
        Example of a detailed complaint (pdf)
      2. When and How to File
      3. Who may File
      4. What if Cal/OSHA refuses to act?
      5. What if I Suffer Retaliation for OSH Activity?
    3. SUBSTANCE OF COMPLAINT
      1. What are the Elements of a Complaint
        1. Describing an Event
        2. Describe an Ongoing Condition
      2. Sample questions:
        1. Nature of job:
        2. Who is/are the responsible employer(s):
        3. What knowledge does the employer have re unsafe condition:
        4. Who else is aware of this unsafe or unhealthy condition:
        5. General hazards involved:
        6. Toxic hazards involved:
        7. Mechanical hazards involved:
        8. Does employer have a written injury and illness program?
        9. Obtaining records from employer re safety and health
          (2) OSHA or other government agency inspections
          (12) Log of injuries and illnesses (OSHA Log 300)
          (13) Information about Toxic Substances
      3. But I don't know enough law...
        1. Hearsay
        2. Sufficiency of the Evidence
      4. But I don't know enough about safety or industrial hygiene
      5. Do I need a COVER LETTER to accompany the complaint?
    4. What Happens after the Complaint Is Filed?
      Copy of Table of Contents from Cal/OSHA Policy & Procedures (P&P) Manual (html)
    5. What Happens During the Inspection?
      • Opening Conference
      • Walk Around
      • Exit Conference
      • Closing Conference
      • Citation
      • Imminent Hazard (Yellow Tag)
      • Special Order
      • Penalty
      • Criminal Penalties
      • Advice re Criminal Prosecution
    6. What Happens after the Inspection?
      • Follow-Up Inspection
      • Appeal of Citation by Employee
      • Appeal of Abatement Date by Workers
      • Workers and Unions may obtain Party Status in Employer's Appeal
      • Petition for Reconsideration
      • Petition for Writ of Mandamus

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APPENDIXES

APPENDIX I: Materials for Workers

APPENDIX II: Worker & Union Rights to Information

APPENDIX III: Fact Sheets for Employers

APPENDIX IV: Fact Sheets for Labor-Management Committees

APPENDIX V: Cal/OSHA General Information

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I. HOW DO I GET SOME HEALTH AND SAFETY ACTION?

A. Workers have a right to a safe place to work

Cal/OSHA has information on workers' rights on their Workers' web page.
See specifically: http://www.dir.ca.gov/DOSH/WorkersRights.htm

Workers also have responsibilities.
See specifically: http://www.dir.ca.gov/DOSH/workersrResponsibilities.htm

Worksafe has Fact Sheets you can distribute to workers on their right to a safe and healthful workplace.
See Fact Sheets - You Have a Right to a Safe Place to Work: there is a general version and an ergonomics version of this Fact Sheet.

Undocumented workers face special issues, and the Department of Industrial Relations statement on Undocumented Worker Rights is available in

Workers have a right to have safety equipment that is paid for by their employer. See Bendix Forest Products Corp v. Division of Occupational Safety and Health (1979) 25 Cal.3d 465. See also Oakland Police Officers Assoc. v. City of Oakland (1973) 30 Cal.App. 3rd 96, 99.

Workers also have a right to have employers pay for the time that employees spend walking to their production area after donning required work gear and the time waiting to doff protective work gear. See IBP, Inc v Alvarez 126 S.Ct. 514.

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B. Who is responsible for safety on the job?

Everyone is responsible: the employer, the worker and government. But the law places the primary duty on the employer to provide a safe place to work. See Labor Code § 6400, 6401, 6402, 6403, 6404, 6405, 6406. See also Labor Code § 6407 which states that "every employer and every employee shall comply with occupational safety and health standards . . . which are applicable to his own actions and conduct."

Cal/OSHA has information on Employer Responsibilities on their Workers' web page. See specifically http://www.dir.ca.gov/DOSH/EmployerResponsibilities.htm.

Among other things, employers are required to establish, implement and maintain an INJURY & ILLNESS PREVENTION PROGRAM and update it periodically to keep workers safe. See Labor Code Section 6401.7 and 8 CCR 3203. Also see Fact Sheet - Injury and Illness Prevention Program for more information.

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C. Who is responsible on multi-employer worksites?

Employers are not only responsible for the safety of their own employees, but also are responsible for other workers on a multi-employer worksite. Employers may not act negligently towards workers just because those workers are not their own employees!

AB 1127 codified (created a statute or law) employer responsibility on multi-employer worksites. AB 1127 by Assemblymember Darrell Steinberg was sponsored by the California Labor Federation and Worksafe. The legislation was signed into law by Governor Gray Davis in 1999 and made significant improvements to occupational safety and health laws. A critical improvement changed Labor Code § 6400 requiring every employer to provide a safe place to work for every employee.

AB 1127 changed the law and brought common sense to responsibility on a multi-employer worksite.

AB 1127 requires all employers to be responsible for safety and health on a multi-employer work site. Amendments to Labor Code § 6400 expanded the definition of employer for the purposes of providing a safe place to work. In a multi-employer setting, an employer, by law, now includes any employer whose workers are exposed to a hazard (exposing employer), any employer who creates a hazard (creating employer), any employer who is responsible by contract or through actual practice for safety and health on the job (controlling employer), and any employer who is responsible for fixing a hazard (correcting employer).

In essence, employers owe a duty of care to people - to other workers - not just to their own employees - who may be exposed to hazards about which those employers know or should know. This means employers may not act negligently, and such is a reasonable requirement to improve protection for workers who of necessity work at many dangerous jobs.

For specific details on multi-employer worksite responsibilities, please see the Cal/OSHA Policy & Procedure C-1C on Multi-Employer Worksite Inspections taken from the Ca/OSHA Policy and Procedure Manual Volume II regarding Cal/OSHA compliance.

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D. How do I get information to help solve OSH problems?

Employers must provide certain INFORMATION to WORKERS. See Labor Code Section 6408. See the fact sheet on Worker & Union Rights to Information for more information.

Employers must have a HAZARD COMMUNICATION PROGRAM. See Labor Code Sections 6360 et. seq. and 8 CCR 5194. See the fact sheet on Worker & Union Rights to Information for more information and a worker handout. You can also see Fact Sheet - Summary of Employer Duties Regarding Hazard Communication for more information and an employer handout.

Employers (and others) must also REPORT INJURIES and KEEP certain RECORDS. Doctors and employers are required to report to the Division of Labor Statistics and Research about occupational injuries or illnesses. See Labor Code §§ 6409 and 6409.1(a) & (b). Re reports to and from other agencies, see Labor Code §§ 6409.2 and 6409.5. For prisoners, see Labor Code §§ 6413 and 6413.2.

INJURIES requiring a REPORT. Per Labor Code § 6409, reports shall be made for illnesses as defined in § 6409 (b) or for injuries which result in lost time beyond the date of the injury or illness or which require medical treatment beyond first aid. Per Labor Code § 6409.3 all pesticide treatments are considered beyond first aid.

DOCTOR's FIRST REPORT. Per Labor Code § 6409, doctors must file a report with the Division of Labor Statistics & Research (DLSR).

EMPLOYER's FIRST REPORT. Per Labor Code § 6409.1 (a), the employer must file a report with the Division of Labor Statistics & Research (DLSR). IF the employer is insured, this form is filed by the employer with the insurer and the insurer then files with DLSR.

CAN YOU GET A COPY? Per Labor Code § 6412, these reports are NOT open to the public. The Employer's report is NOT admissible as evidence in any workers' compensation matter. However, the Doctor's report is (except for the portion filled out by the worker); but it is not admissible to bar proceedings for workers' compensation. SO, you can NOT get these from Cal/OSHA but only by subpoena or legal request with a release form from the employer or doctor.

EMPLOYER's DUTY to REPORT to Cal/OSHA. Per Labor Code § 6409.1 (b), in addition to the report required by subdivision (a), the employer must file a report immediately by telephone (see 8 CCR 342 for detail) with Cal/OSHA for a serious injury or illness or death. Serious means it involved hospitalization for more than 24 hours for something other than medical observation or it involved the loss of any piece of the body (not a finger tip) or any serious degree of permanent disfigurement.

Per 8 CCR 342, employers must report the name and location of the injured person, nature of the injury or illness, a description of the accident including its time and date, the employer's name, address and telephone number and other relevant information to the nearest Cal/OSHA office by phone or fax within 8 hours. See http://www.dir.ca.gov/dosh/DistrictOffices.htm for the list of offices.

CAN YOU GET A COPY? After the Cal/OSHA case is closed, you can get this report from Cal/OSHA utilizing the California Public Records Act. See the Sample Letter to Cal/OSHA Requesting Copies of Files.

The law was recently strengthened regarding the employer's reporting requirements. AB 2837, effective January 1, 2003, substantially increased penalties for employers who failed to report. Employers who fail to report a fatal or serious injury or illness now face a minimum penalty of $5,000. See Labor Code § 6314(b) and related regulation 8 CCR 342. AB 2837 also provides that an employer, officer, management official or supervisor who knowingly fails to report a death to Cal/OSHA or knowingly induces another to do so is guilty of a misdemeanor and will face a penalty of up to one year in jail, a fine of up to $15,000 or both. If the violator is a corporation or limited liability company, the fine could be up to $150,000. (But see Labor Code § 6413.5 for minimal penalties for violations of others or by employers for other aspects of failure to report.)

LOG 300 and Form 301. Per Labor Code § 6410, Labor Code § 6410 et. seq. the employer must follow specific recordkeeping requirements. The employer is required to fill out an Injury and Illness Incident Report within 7 calendar days of receiving information that a recordable work-related injury or illness has occurred (Form 301). The employer is also required to keep a Log of Work-Related Injuries and Illnesses (Log 300).

See Log 300 & 301 and Instructions in the Appendix for Cal/OSHA Forms for Recording Work-Related Injuries and Illnesses. These documents are available on legal size paper and in an excel spreadsheet from the Cal/OSHA Publications list under Recordkeeping. See http://www.dir.ca.gov/dosh/dosh_publications/RecKeepOverview.pdf.

Click on the following links:

Fact Sheet - You Have a Right to a Safe Place to Work - General Focus

Fact Sheet - You Have a Right to a Safe Place to Work - Ergo Focus

Fact Sheet - Form Frees You from your Company Doctor

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E. Actions Related to Safety & Health

There are many ways to address health and safety concerns. Below is only a brief list of ways to address an occupational safety and health problem. 

As well, one of the hazards that workers face when they get involved in trying to make their workplace safer is RETALIATION:

Fact Sheet - What Can You Do? A Union Activist's Role (pdf)

Fact Sheet by Cal/OSHA - If Your Employer Refuses to Correct . . . (pdf)

Training Material - What are your RIGHTS if you suffer DISCRIMINATION or DISCHARGE for Safety & Health Activity? (pdf - 2000) 

Occupational Safety and Health and the Environment -- they are related. You need to know about occupational safety and health laws and also about other laws related to occupational safety and health issues. Anytime you have a complaint regarding occupational safety and health, check to see if the hazard has spilled out of the workplace and into the community. If it has, then you might also file a complaint with other appropriate agencies.

What Government Agencies Handle Occupational Safety and Health and related Environmental Issues? Are they federal, state or local agencies? You need to know not only about the types of laws to use to make your work place and environment safer, but also about which government agency to contact. You must also be sure you identify ALL the agencies to contact and determine whether you should be working with federal, state and/or local government agencies.

Will Government help Solve this Problem or is this the Type of Problem that requires an Individual to bring a Legal Action? Finally, complaints to government agencies are often aimed at solving a collective problem. If an individual has an injury, then you might need to bring some other kind of action, and you may need an attorney to help you do that.

POSSIBLE ACTIONS:

  1. Filing a Cal/OSHA Complaint. See this Guide to Workers' Health & Safety Rights and Filing A Cal/OSHA Complaint for details about how to navigate the administrative law system.

  2. Filing Complaints with Other Government Agencies.

  3. Union Remedies through Grievance. A collective bargaining agreement may contain language that will permit a grievance to be filed concerning occupational safety and health matters. Be sure to check your contract.

  4. Other Contract Actions.

  5. Civil/Criminal Prosecutions. Whether or not Cal/OSHA acts, there may be criminal or civil laws that relate to occupational safety and health that may be enforced by a City Attorney, District Attorney, Attorney General or United States Attorney. You can participate in that process to some extent.

  6. Injured Workers Actions. If there is an injury, a worker can get some relief in the Workers' Compensation system. This no-fault system provides limited temporary and permanent disability payments, a small amount for vocational rehabilitation, and provides medical care. The worker may also be able to file a civil lawsuit (tort) for damages or other relief against a "third party" who is normally someone other than the employer (although in rare cases these civil lawsuits may be filed against the employer). Click here to visit our Workers' Compensation page.

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F. What Do I Do when Something Goes Wrong?

1. COMPLAIN TO THE CORRECT GOVERNMENT AGENCY(S)

WHOSE LAW IS IT ANYWAY? There are federal laws, state laws and local ordinances. Federal law takes precedence in all situations. If the federal government permits the states also to legislate and/or enforce, these lesser governments may do so. State law takes precedence over local ordinances. If the state government permits localities to legislate and/or enforce, these lesser governments may then do so. FIGURE OUT if there are any laws and agencies at the federal, state or local level that can help you. TALK TO ALL OF THEM.

USE ALL LEGAL AVENUES AVAILABLE TO WORKERS.

OSHA: There is a federal law to protect workers (Occupational Safety and Health Act). Congress permits States also to protect workers if the state program is as effective as the federal program. California has a state program administered by the Division of Occupational Safety and Health (we often call it the Division or Cal/OSHA). Almost all work places in California are covered by the Cal/OSHA program. However, the California Department of Pesticide Regulation protects workers in agriculture.

ENVIRONMENT: Federal laws protect the environment through federal agencies such as the Environmental Protection Agency (there is also a state EPA). States are also allowed to protect the environment. In California several different agencies do this: Department of Toxic Substances Control addresses various toxics as does the Office of Environmental Health Hazard Assessment; the Air Resources Board and their Air Quality Management Districts address air pollution; the State Water Quality Control Board and their Regional Water Quality Boards enforce water quality; the Department of Fish and Game protects other resources; etc. This list is by no means complete, but just gives you an idea.

HAZARDOUS MATERIALS: Federal laws govern the transportation of hazardous and radioactive materials (Department of Transportation). Cal Trans is also involved in this. In California the California Highway Patrol, the State Fire Marshall and the California Emergency Management Agency (previously the Office of Emergency Services) are responsible for many of these activities. This list, also, is by no means complete with respect to hazardous materials.

2. WHO ELSE WILL HELP?

  1. City Attorneys, District Attorneys, Attorneys General -- WHICH ONE? City Attorneys in some counties have authority to bring criminal cases. If so, call them. Otherwise go to the District Attorney. Generally, the District Attorney will seek the help of the Attorney General if the problem is one of statewide concern. There are few instances where a private citizen goes directly to the Attorney General. However, if the Attorney General wants to get involved in a local issue of concern, then s/he can do so. It depends on the Attorney General.

  2. Criminal or Civil Prosecution?

    1) Criminal enforcement is available to local prosecutors using provisions in the Penal, Labor, Health and Safety, Fish and Game, Food and Ag, Government, Vehicle, and Water Codes, among others. Each prosecutor will establish his/her own criteria for what should be criminally prosecuted.

    If there is a serious injury or death or a serious exposure has occurred which in the future may lead to serious injury or death -- then a prosecutor is likely to be more interested. See Labor Code §§ 6326, 6423, 6425, 6426, Penal Code § 387, among other provisions. We now have more flexible laws giving prosecutors the ability to charge either a felony or misdemeanor with a significant monetary penalty against a business entity. See the penalties discussion in this document.

    2) Civil enforcement is also available to prosecutors under the unfair competition provisions of the Business and Professions Code § 17200 et.seq. Again, each prosecutor will establish his/her own criteria assuming there is a unit to prosecute these cases.

    Generally, prosecutors are most interested in filing a B&P § 17200 complaint when the potential defendant has repeatedly violated the law (and you have good documentation of this including warnings to the violator), when the violation is a continuing one, when the violation is likely to cause death or serious injury and has some "sex appeal" (it involves a chemical or issue which is "hot" like asbestos or lead), and when the potential defendant is not on the verge of bankruptcy (these cases punish by going for the pocketbook; if the potential defendant has no money, there is not much punishment).

3. CAN A CITIZEN BE A TOXIC COP?

When should I call a City Attorney, District Attorney or the Attorney General? Generally, an administrative agency contacts these law enforcers when the administrative system has failed. Unfortunately, more often than not, the administrative agency doesn't bother to bring in "bigger guns" and just lets the matter work its way through the administrative system even if the results are unsatisfactory.

Occasionally, however, private citizens are frustrated with the administrative agency and go directly to these law enforcers. This is NOT easy to do, however. Law enforcement agencies aren't used to citizens complaining about workers being killed or maimed in the course of business or environmental crimes. You may not get a good response.

Also, although local, state or federal prosecutors can prosecute based upon occupational or environmental matters using criminal or civil laws, such prosecutions usually occur only if the county, state or federal jurisdiction has allocated resources to establish some kind of special unit to handle occupational safety or health or environmental matters. More and more of these units are coming into existance in City and District Attorney offices.

Cal/OSHA currently is working with the California District Attorneys Association (see http://www.cdaa.org/) to prosecute criminal mat6ters in designated counties (mostly rural). The Worker Safety Circuit Prosecutor program began in April, 2001 and was modeled after the Environmental Circuit Prosecutor Project (see http://www.cdaa.org/enviro/envirodesc.htm). Prosecutors and investigators serve rural county district attorneys who request assistance in serious worker safety cases.

4. SUMMARY

When you have a complaint, make it to the correct government agency. Don't call a business association and expect enforcement. Complain in writing ALWAYS (you may phone in a complaint that needs IMMEDIATE ATTENTION but ALWAYS follow up in writing). Keep records of your complaints. Keep records of your phone calls initiating a complaint or following up on that complaint. Be sure to get the name of any person to whom you speak. BE PERSISTENT and FOLLOW UP.

Yes, you can be a Toxic Cop. And you can be a good one. But do your homework. And call your union for help as well.

5. PRIVATE REMEDIES

INDIVIDUALS often must enforce their own rights because the administrative agency only addresses or seeks a remedy for a problem at the work place or in the community. District Attorneys (or other prosecutors) usually punish a wrongdoer by bringing criminal cases; sometimes they bring civil cases to address or remedy the problem in the work place or in the community seeking an injunction (to stop a bad practice) or an order from the court to require the employer to make the work place safe. 

The administrative agencies and the prosecutors do NOT however get money for a person who has been injured or for property that has been damaged. 

If you or your property has been damaged, you will have to find an attorney to represent you and seek "remedies" for your injuries by bringing a lawsuit against the person or corporation or entity that caused the injury or damage. 

You may have "common law" rights (in other words rights that have been established over time and which are NOT linked to a statute or law passed by the legislature) or you may have "statutory" rights if you have been injured or your property damaged.

There are basically two broad "common law" rights that an individual or group of individuals ("class") use if they or their property has been injured or damaged. These are called "tort actions" or "contract actions". 

There are also remedies created by statutes such as workers' compensation or lawsuits under the American's With Disabilities Act, etc.

There are also civil statutes that allow a person to use the administrative regulations and related statutes as a basis for getting relief such as prohibiting unsafe acts and compelling an employer to provide a safe and healthy place to work. See Business & Professions Code Section 17200 et. seq. Recently, however, the ability of an individual or group of individuals ("class") to use this statute was curbed. See Prop 64 which was passed by California voters November, 2004. Information about Prop 64 can be found at the League of Women Voters website on Prop 64 and at http://igs.berkeley.edu/library/research/quickhelp/elections/2004general/htProp64UnfairBusiness.html and at http://www.electionwatchdog.org/. 

However, for violations of the Labor Code, including violations of statutes and regulations relating to occupational safety and health, there is still a private right of action that unions and workers may use to try to achieve safety and health in the work place when the administrative agency fails. See Labor Code Section 2698 et. seq. which was authored by California State Senator Joe Dunn and signed by then Governor Gray Davis on October 12, 2003. This bill was known as SB 796 and sometimes the law is referred to by that bill number. The law was amended with a bill known as SB 1809 even before many lawsuits were filed so as to restrict how it was used, but it is still a valuable tool.  The law is valuable although it does not provide for significant individual damages.

TORT: A tort (not a tart) is a private or civil wrong or injury. It is a violation (breach) of a duty imposed by some law or by what is reasonable. The person who has done something wrong must be shown to "owe" a duty to the other person. The other person must be harmed (injured) as a result of the breach of duty. And the action or inaction of the wrongdoer must have caused the harm. The damages are what comes from the harm and may include lost wages and benefits, medical care, a certain position at work, etc. There are a wide variety of damages depending on the wrong. A tort claim may be pursued independently from a contract violation. To bring a tort case (cause of action), there must be a legal duty owed by the defendant (person being sued) to the plaintiff (person bringing the suit), a breach of the duty, and damage as a proximate result of the breach.

CONTRACT: A contract is an agreement between 2 or more competent people to create, modify or destroy a legal relation. The agreement is reached after an offer by one, an acceptance by the other and some legal consideration (often money). The minds of the parties must meet and concur (agree) as to the meaning of the terms or obligations (requirements) in the contract.

WORKERS' COMPENSATION: This is a right created by various state legislatures. It is a no-fault system which allows workers to receive some compensation (by no means full - or even reasonable - compensation) for injuries on the job without having to prove that the employer did something negligent or wrong. In California you can find out more by contacting the Division of Workers' Compensation.

For EXCELLENT materials on Workers' Compensation, go to http://www.lohp.org/projects/workerscomp.html. Fact sheets can be viewed on-line and printed out. There is also a video. You can purchase a book of the material. And you can contact them for training and technical assistance. These materials developed by the University of California at Berkeley Labor Occupational Health Program can be adapted by union representatives as handouts for injured workers.

FINAL WORDS: Whether a worker, home owner, contractor, tradesman or mogul, you are a consumer of law. If you go to an attorney for help, be a savvy consumer. If you go to a government agency for help, nag nag nag!

6. The Labor Code Private Attorneys General Act of 2004
Review Labor Code Sections 2698 et seq. to see whether you can pursue a private right of action to enforce occupational safety and health. You are required to file with Cal/OSHA in order to pursue this approach and give them time to act. But if you file and Cal/OSHA does not act, you may want to use this law to pursue a safety or health complaint. Be sure to follow all the timelines. http://www.privateattorneygeneral.com/

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G. HOW TO SELECT AN ATTORNEY

DISCLOSURE: The author of this section is a lawyer. I'm sitting here writing about when and how to select an attorney. So you need to know my perspective. I don't think lawsuits are a particularly effective way to solve problems, particularly occupational safety and health problems. I think that strong action at the worksite by a group of organized workers produces the best result. That's because it is quicker and it generally works. But you have to be knowledgeable and organized. That's why I believe in unions. But even without a union at your workplace, if you get together with other workers and take action, you will have a decent chance of succeeding.

Are there risks in action? ALWAYS. One is that you will be fired. A bigger risk is if you do not stand up for safety on the job, you or a friend will be killed or maimed. Those risks are minimized when you have a union. If you don't have a union, at least involve as many of the workers at the jobsite as is possible. BUT even then some risk remains.

Do you need a lawyer to file a complaint with a government agency -- to protect your collective rights? Not necessarily. Will a lawyer do a better job? S/he might - but ONLY if s/he has experience filing complaints with government agencies. Unfortunately, few attorneys have experience filing occupational safety and health complaints. And most workers understand better what is going on at their workplace and can file an effective complaint. The workers just need to get together and take the time to do it well. Need help filing a complaint? Take a look at THE CAL/OSHA INSPECTION, CITATION and APPEAL PROCESS. The process described there should help you file a complaint with any government agency. And call your union before you act.

Do you need a lawyer to pursue individual rights? Depends (sounds like a lawyer huh?). It's pretty difficult to pursue a legal action in a court without an attorney. It's pretty difficult to fix an electrical problem without an electrician. It's a bit easier for a worker to pursue a legal action in an administrative setting (workers' compensation or an initial complaint with the Department of Fair Employment and Housing or the Division of Labor Standards Enforcement, etc.) But there too the issues might get complicated and you might need to do something more than just change a light bulb.

1. WHAT DO LAWYERS DO?

LAWYERS GIVE ADVICE. They are trained to argue both sides of any issue, although most lawyers have a point of view and the best of the bunch usually stick with one side or the other (you'll figure out who is always on your side).

Arguments are based on law and facts. Generally, there is no absolute right and wrong because both the law and the facts are often not black or white.

The law is not an absolute. It is often a matter of interpretation. The law is determined by looking first, at the words written by a legislature or at regulations issued by an administrative agency, and second, interpreting those words. Additionally, one must look at cases decided by courts and/or administrative judicial bodies interpreting those words. Facts too are generally not an absolute. They are often a matter of interpretation. Different people see the same things in different ways. Since the resolution of a legal case is determined by applying the law and the facts, the facts must be thoroughly investigated. A lawyer must not only know your understanding of the facts, but also must know your opponent's version of the facts. Most important to remember is that arguments are based on the actual facts of a given situation. Thus no lawyer can or should give you an opinion without knowing both the law and the facts.

2. WHAT ROLE SHOULD YOU PLAY?

CONSUMERS OF LEGAL OPINIONS MAKE DECISIONS ABOUT HOW TO PROCEED. The first decision the consumer must make is whether to get a lawyer. The next is whether to get a different lawyer. If the lawyer cannot speak to you in English or the language you understand, as opposed to "legalese," get another lawyer. You also should make other critical decisions in the development of your case. A lawyer must be able to explain the categories of law and the particular laws that apply to you, your responsibilities, rights and remedies (what you can get) under the law. Good lawyers make recommendations, but you make the final decisions. They explain issues and present arguments on both sides of the issue. Then they ask you to make decisions. Ask a lawyer in an initial consultation to identify your decision making points so that you know what you will have to decide.

Remember, you are the consumer, the attorney is not doing you a favor by taking your case. On the other hand, the attorney is a professional and if you hire a lawyer, you should be prepared to consider his/her advice.

3. TIPS FOR PICKING AN ATTORNEY. Be a good consumer. If you are going to work with a lawyer, find a good one. Make sure the law firm has malpractice insurance. Interview more than one attorney.

Remember, lawyers have political perspectives just like any other person. When individuals or unions seek a lawyer, they should be aware of the political perspective of that lawyer because it may well influence the type of legal arguments, the amount of energy the lawyer will invest, the fee, etc. There are some lawyers who might represent both individual workers/unions and employers; if you choose one of these lawyers be sure that the representation the firm provides to employers is something that doesn’t conflict with workers’ individual or collective rights.

Does the lawyer or firm specialize and do you need a specialist? Attorneys specialize as the law covers many subjects - although some are generalists. You can utilize information about which attorneys are certified as specialists in Worker's Compensation, Criminal, Taxation and Family Law (check with your state bar association to find out which areas have specializations). Although you do not need to select the attorney certified as a specialist in the area of law applicable to your situation, it may be prudent to do so. Whoever you chose, however, it is important to try to find an attorney who is familiar with, and has some experience in, handling your type of problem.

Plumbers generally don't do electrical work and electricians generally don't do plumbing.

Don't just surf the net and pick the attorney with the most glitzy website. Study the content of the firm’s website.

Does the website tell you something about the firm, give you information about the firm's perspective (which side are they on), commitment to issues you think are important, etc.?

Does it provide substantive information about the law, about issues that relate to your situation?

Does it list the attorneys in the firm and provide their biographies? Do those biographies let you know how much experience the attorneys have doing the kind of work you need them to do (are they trial attorneys and do you need a trial attorney, do they have experience doing the kind of law you need done)? Do those biographies tell you where they worked in the past and what they have accomplished in their legal lives? Do they tell you where they went to school? Do they tell you what else they do in their lives that might give you a clue about their commitment to workers’ rights? Consider doing a quick website search to see whether the firm or any of their senior attorneys has ever made the news (and whether it was good news).

Determine the differences among the attorneys and firms you are considering: fee structure, how the firm thinks your case might be handled, how you will be involved. Is the size and experience of the firm right? Determine the experience of the individual lawyers in the firm and case load of the firm and the individual lawyers. Will you be dealing with a small firm or just one attorney who might not be able to allocate the resources necessary to sustain a fight? Will you be dealing with a large firm or so many attorneys that you won't have any personal attention?

Ask around. If you have a friend who is a lawyer, ask him or her for a recommendation. Most local attorney associations or the state bar association maintain lawyer referral services which can be a start. See if you can get some free legal advice from a reputable source such as a progressive bar association, a legal services program, etc. Some unions have group legal service plans that will give you some free advice. Sometimes there are injured worker groups in your area that have had collective experiences regarding attorneys. Ask friends and relatives who have been in similar situations (but be sure they had a clue about what they were doing).

How do you feel about the attorney and the firm. Do you like the people with whom you are dealing (intake, investigators, paralegals, attorneys)? Are they sympathetic with your situation? Does the attorney speak to you in English as opposed to "legalese"? Will you be able to make the critical decisions in the case? You need to feel comfortable with the attorney representing you.

Pay for a consultation in some situations. You can often pay an hourly fee of a couple hundred for an honest consultation as to whether your case is viable. When determining whether you have a case worth pursuing – particularly if you have to pay an hourly and cover expenses for that case – paying for a consult with another attorney is worthwhile.

Don't just call the guy with the flashiest website, the nearest billboard, or the biggest ad in the union newsletter. Shop, shop, shop!

4. FEES

Since fees are a pretty important issue to consider, let me note there are a couple types of fee structures.

First, some fees are governed by law. For example, in cases in the California Workers Compensation system, the injured worker's attorney is limited to a certain percentage of the total cash settlement (usually from 12 - 15%) fn [1]. Of course the insurance company or employer's attorneys get paid a lot more, but what did you expect?

Second, some fees are hourly. Lots of legal work is done on time and material at hourly rates. So you'll need to comparison shop not only the actual hourly fee, but find out how long the matter might take and then figure out whether the estimate is reasonable. This is where a specialist should come in handy. He or she might charge more, but if they are truly a specialist (either by virtue of experience and/or experience plus a certification that is available through the State Bar), they might cost a bit more per hour, but be able to do the job quicker (and thus cheaper).

Third, some fees are contingent. That means the lawyer takes a percentage of your settlement (as in workers' compensation), however, often the percentage isn't controlled by law. Most personal injury lawsuits (not workers' compensation which is a no-fault claim ONLY against your employer) are handled as contingency fee cases. It also usually means that if the case is not successful, you get nothing and the lawyer not only gets nothing, but also has taken a loss both on their time and on the expenses.

So what do you need to think about when comparing contingency fees. Obviously the percentage is an issue. And be sure to find out exactly when the percentage increases. Many firms charge 33 1/3% up to a certain point and then perhaps 40% after that (usually when the case reaches some point where it is being worked up for trial and thus the lawyer anticipates they will have put in a lot more work). READ the retainer fee language carefully.

With contingency fees one sub-issue is expenses. Some retainer agreements take costs out of the client's share. A better way is to take the expenses from the entire settlement, off the top, and then the firm and the client take their respective shares. This keeps the attorney from wasting the client's money on unnecessary and exorbitant expenses, perhaps charged by enterprises owned wholly or in part by the attorney or some other folks who are working closely with the attorney.

With contingency fees another sub-issue is what constitutes expenses. Some retainer agreements charge for things most reputable tort law firms would never charge for: postage, in-house copying, in-house phone and faxes, in-house word and data processing, in-house investigator fees, etc. Sometimes a firm will even assign a number -- say $1,500 or more -- to these general non-case specific expenses and state in the retainer they intend to take this out of the first funds received. In contrast, reputable firms charge costs in a personal injury suit for direct expenses on behalf of the client, such as expert witnesses, deposition transcripts from independent firms, court fees, actual expenses incurred when the attorney or investigator travels to some forsaken spot to track down and interview a witness specific to your case, etc., as opposed to office overhead type expenses.

Hybrid arrangements. Some attorneys may suggest a hybrid arrangement. You might have to come up with a promise to pay the expenses (and perhaps even the attorney's hours at a reduced rate) whether the attorney wins or loses your case. You may have to pay just the direct expenses or maybe even pay the overhead type of expenses. These arrangements sometimes occur if the attorney or firm simply is not big enough to afford the expenses should you lose, but generally that concept is coupled with the fact that the attorney or firm may think that the case you have is a bit too risky.

So if you have been shopping around and find the more traditional and specialized tort law firms aren't interested in your case, you need to get a reading on why. Usually their letter to you will simply say they don't have the time, but you need to get some information (which will never be in writing because it would hurt you if it was) as to whether they think your case is too small for them (the damages aren't solid enough because you haven't been sufficiently injured, there is no defendant who has money, etc.), or too risky (the question of liability isn't solid enough because the law is weak, your facts are weak, etc.) Liability in a tort case has to do with whether you were owed by duty by someone, whether that duty was breached, and whether the breach of duty caused you harm. Damages in a tort case involve loss of time from work, medical costs, loss of enjoyment of life, etc.

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5. Shop to protect your rights!

Comparison shop among law firms; look at their retainer agreements and anything else they may have in print or on the web. Don't sign anything until you've had a chance to take it home and look it over. Always make decisions in a less stressful, less rushed environment. Then you'll be able to make your own informed decision on how to proceed.

6. ONCE YOU'VE GOT YOUR ATTORNEY, however, your job isn't over.

You might want to believe that the attorney will take care of everything and hopefully they will take care of most things, but you must stay on top of things no matter what. That means you must understand generally the time line for your case and check in to assure your case is on track. You need regular communication. You must carefully read everything your lawyer sends you and not sign things in blank. You must respond timely to your lawyers requests for information and assistance. Etc.

One problem arises if a worker or his/her attorney doesn't factor in what may happen in the future with respect to medical care. In workers' compensation, a settlement is based upon amounts assigned to cover permanent disability, vocational rehabilitation, future medical care, etc. These are each separate numbers which together comprise the settlement offer. When a workers' compensation case is settled, not everything needs to be settled. However, if certain parts of the case are "left open" - such as future medical care - the settlement offer is often much less than if the future medical claims are settled. If the worker SETTLES OUT future medical care, this means the worker will be PROHIBITED from going back to the workers' compensation carrier for future medical care.

The total amount of cash offered to the worker will never really cover what the worker will need in the future to offset the disability, to pay for vocational rehabilitation, to cover future medical care, etc., but the case must either be settled or go to trial. Some injured workers may want to settle their case for more money and waive future medical care. Some attorneys may advise them to do so. Workers may need the money now. The worker may believe there will be fewer medical problems related to the work-related injury in the future or that some other insurance may cover the medical care. On the other hand, the worker may think the future will hold problems, not be willing to take the chance, be willing to take a smaller cash settlement and refuse to settle the future medical care component of their workers' compensation case.

Some see a conflict here should an attorney advise a worker to settle out future medical care. Since that will provide a bigger pot of settlement money which provides both the worker and the lawyer more in their respective shares, some may think the lawyer is urging such a settlement just to have a bigger share in attorney fees. Does that mean that you and your workers' comp attorney have a conflict about fees? Not necessarily. Remember there are other reasons to settle out future medical care. For example, you might be unable to get the medical care you want through the system it may just be too big a hassle and you might decide to take the money and get out.

A second problem arises in how the worker and the attorney view the temporary disability period. The temporary disability period may be flexible. It depends on the medical evaluator and other factors.

Again the workers' compensation case will not cover what the worker will need in the future. Some injured workers may want to return to work as quickly as possible after the medical provider is sure that this is safe. Some workers may hesitate despite medical advice that it is safe to go back to work. Some attorneys may advise them to hesitate.

If one believes it is best for a worker to return to work as soon as it is medically appropriate and not rely on an inadequate workers' compensation system, one may see a conflict should an attorney advise a worker to extend time on temporary disability. By staying longer on temporary disability, there is a larger pot of money that may ultimately go to the worker in the case; that larger pot is also the basis for a larger attorney fee. Staying off work longer can lead to problems. Going back to work to soon may also lead to problems. The solution here is that the attorney and worker should thoroughly discuss all options.

The key here is for the injured worker to make a reasoned decision. Know what you are facing. Consider the reality of the future. Listen to the advice of your attorney and then make your own decision.

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II. WHAT IS MY ROLE IN THIS SYSTEM OF LAWS?

A. An Overview of the Legal Structure Relating to Occupational Safety and Health

Legislative, Executive, Judicial Branches 

Active participation in all aspects of the system is necessary to make sure it works best for you! Government is generally divided into 3 parts: the legislature, the courts and the executive branch. You can participate in all parts of government.

Occupational safety and health is handled by administrative agencies. The structure parallels government generally. The legislature passes laws. The OSH Standards Board passes standards or regulations). The Executive Branch carries out the law. Cal/OSHA enforces OSH laws. The Judicial Branch hears cases and interprets laws. The OSH Appeals Board hears cases related to OSH enforcement actions (administrative judicial proceedings) and decides whether citations are proper.

B. The Legislative Branch Makes Laws

If you don't like the laws, make your own by both electing your own candidates to the Legislature and getting together with your union and community groups to do GRASSROOTS lobbying. You can keep track of legislation in California on-line at http://www.leginfo.gov.

C. Regulations or Standards

Sometimes legislatures delegate (give the right to make laws) to administrative agencies in the executive branch of government to promulgate (develop and issue) laws (called orders, rules, regulations or standards when issued by an admin agency). The legislature usually directs the agency to do this for a particular subject such as occupational safety and health or the environment. Since you do not elect these civil servants, when they make these laws, extra protection is required. Generally, rulemaking requires some kind of notice and opportunity to be heard (a hearing) where you can testify or bring in evidence. Some agencies have lists and will provide notice of their rule making proceedings. You can get on the list! Some administrative agencies utilize advisory committees made up of interested persons. See Labor Code § 140 et seq..

You can and should participate in the standard setting process. You can be a member of an advisory committee. And you can participate at hearings on standards in front of the Occupational Safety and Health Standards Board. Click here to keep track of regulatory hearings in California http://www.dir.ca.gov/oshsb/oshsb.html.

Advisory committees are established sometimes by the Standards Board or by the Division of Occupational Safety and Health, depending on who is preparing the proposed standard. Ask both to place you on a list for the issues in which you are interested. To keep track of regulatory advisory committees convened by the Divison, go to http://www.dir.ca.gov/DOSH/DoshReg/advisory_committee.html.

Standards Board hearings are held regularly, usually the 3rd Thursday of the month. The meetings rotate around the state. Ask the Standards Board to place you on their regular mailing list. See The Rulemaking Process to see how the process works in general. See The Rulemaking Process Flowchart for the OSH Standards Board for more specific information.

Click on the following links:
Handout - Participate in Standards Advisory Committee
Handout - How Occupational Health Standards Are Developed
Handout - The Rulemaking Process
Handout - The Rulemaking Process Flowchart OSH Standards Board

D. Variances

Related to the standard setting process is the variance process. Sometimes an employer asks to be excused from complying with a regulation or standard. When it does, the Standards Board will provide notice (in its monthly notice of actions, usually on colored paper toward the back of the packet). An employer may receive a variance -- permission to comply with a regulation in a way different than what the regulation actually states -- if it demonstrates to the Standards Board that it can provide the same safety as the regulation provides. See Labor Code §§ 143, 6450-6457. Go to http://www.dir.ca.gov/oshsb/permanent_variance.html. For regulations regarding how occupational safety and health variances are handled, see Rules of Procedure for Permanent Variances and Appeals from Temporary Variances.

You can and should take part in that process when it affects your work place.

Contact the OSH Standards Board for more information about the standard setting or variance process.

Occupational Safety and Health Standards Board
2520 Venture Oaks Way Suite 350
Sacramento, CA 95833

Phone: (916) 274-5721 | Fax: (916) 274-5743 | Email: oshsb@dir.ca.gov

E. Executive Branch Enforces Laws

It administers/enforces laws on behalf of the People of the State of California or of the United States1 (although sometimes it makes and interprets laws through the administrative agencies delegated those specific duties by the legislature ? see above). Criminal or civil laws are enforced by a City Attorney, District Attorney or Attorney General. Administrative laws are enforced by administrative agencies. Administrative laws concerning occupational safety and health are enforced by Cal/OSHA or Federal OSHA as well as other agencies.

You can and should participate in that process by alerting the government agency of a violation of law (filing a complaint with Cal/OSHA for California or with Federal OSHA in a state which does not have their own state plan), and by providing evidence or in some other way assisting in the investigation.

F. The Judicial Branch Interprets Laws

Usually courts do not make laws, they just interpret them and apply the facts presented. But from time to time judicial decisions do make law!

You can and should participate in occupational safety and health cases administrative hearings and appeals. You, a union representative, and/or an attorney can appear at the OSH Appeals Board if you have some legal interest in the case (standing). In Cal/OSHA cases, a party can present facts, argue the law, and protect rights during settlement. In some cases, even if you are not a party, you may be able to present arguments if the court permits you to do so as a "friend" of the court (amicus).

YOU MUST PARTICIPATE IN ALL ASPECTS OF THE SYSTEM
TO MAKE SURE IT WORKS BEST FOR YOU!

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III. OVERVIEW OF THE FEDERAL LAW

Available through the AFL-CIO Lawyers Coordinating Committee, Room 804, AFL-CIO, 815 16th Street NW, Washington, DC 20006, is a series of articles published in Labor Law Exchange in the fall of 1985. Because Cal/OSHA has been reinstated, and these materials primarily address FEDERAL OSHA issues, they are not reproduced in full here.

For your information the articles include:
1) O'Brien and Leifer: Union Intervention in OSHA Proceedings (6 pages)
2) Collins: Employee and Union Rights of Access in Exposure and Medical Records (6 pages)
3) Leifer: Right of Employees to Refuse Hazardous Work (5 pages)
4) Cohen: Union Liability Under State Tort Law for Workplace Injuries or Illnesses (5 pages)
5) Sasso: Employer Tort Liability (3 pages)
6) Fradkin: Reproductive Health Hazards in the Workplace (7 pages)
7) Rock: Sources of Occupational Safety and Health Information (3 pages)
8) Health and Safety Resources Bibliography (3 pages)
9) Lawyers Coordinating Committee Document Service (5 pages)

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IV. OVERVIEW OF THE STATE LAW

A. The Division of Occupational Safety & Health (Cal/OSHA)

This is the government entity in CALIFORNIA responsible for enforcing the employer's duty to provide a safe and healthful place to work.

Cal/OSHA (sometimes referred to as DOSH) is the administrative agency responsible for enforcing and administering the laws and regulations concerning occupational safety and health. See http://www.dir.ca.gov/DOSH/dosh1.html.

The laws are in the Labor Code beginning at Section 6300.

The regulations are in Title 8 of the California Code of Regulations. See http://www.dir.ca.gov/Samples/search/query.htm.

Cal/OSHA's efforts to enforce regulations is referred to as administrative enforcement. Detailed information regarding administrative enforcement is found in Section V. See also the Cal/OSHA Policy & Procedures at http://www.dir.ca.gov/samples/search/querypnp.htm. Regulations can also be enforced through civil actions and criminal and civil prosecutions with or without administrative enforcement. See the section called "What Do I Do When Something Goes Wrong."

The process may start with a complaint by a worker, worker representative, or any other person - even another employer.

When a worker or his or her representative files a complaint, it is a formal complaint. A formal complaint simply means that Cal/OSHA gives it a higher priority. Cal/OSHA is required to investigate a formal complaint within a certain time (3 working days if the formal complaint is serious, 14 calendar days if it is nonserious, 24 hours if it is serious and comes from a prosecutor).

Workers can have others help them file complaints. Amendments to Labor Code § 6309 - as a result of AB 1127 - provide specific examples of who is a worker representative for the purposes of filing a formal complaint with Cal/OSHA. In addition to the worker, the worker's representative is defined to include, but is not limited to an attorney, health or safety professional, or union representative. Others now added to the old list of those with priority status include any government agency representative and any state or local prosecutor.

A complaint can result in citations and penalties and corrections (abatement). The employer may appeal.

ABATEMENT. After an inspection, if citations or orders are issued and not appealed (or if the citations are ultimately upheld), the employer is required to correct the unsafe or unhealthful condition.

Abatement of the unsafe or unhealthful condition is of primary concern. Although the worker does NOT have the right to appeal a citation, he or she does have the right to appeal the amount of time given to the employer to correct the unsafe or unhealthful conditions. See Appeal of Abatement Date by Workers.

Corrections must be made according to a set of rules. The employer must use engineering controls in the first instance, and if such does not make the situation safe, then work practices may be employed. Finally, if neither engineering controls nor work practices are successful, the employer may require the use of personal protective equipment.

Employers are required to pay for their employee's safety equipment. See Bendix Forest Products Corp v. Division of Occupational Safety and Health (1979) 25 Cal.3d 465. See also Oakland Police Officers Assoc. v. City of Oakland (1973) 30 Cal.App. 3rd 96, 99.

B. ORGANIZATION CHART

Where Does Cal/OSHA fit in the California State Government Executive Branch Chart? The Division of Occupational Safety and Health (Cal/OSHA or DOSH) is part of the Department of Industrial Relations (DIR) which is part of the Labor Agency in California. See http://www.dir.ca.gov. See also the Organization Chart for the DIR and the Cal/OSHA organization chart.

DIR also houses the Division of Labor Statistics and Research (DLSR) which analyzes the rates of work-related injuries and illnesses for various industries, among other things. It contains the Division of Labor Standards Enforcement (DLSE) which handles complaints when workers are discriminated against for safety and health activities or for refusing to do unsafe work, among other things. It also houses the Division of Apprenticeship Standards (DAS), Division of Workers' Compensation, and Industrial Welfare Commission.

Occupational Safety and Health Standards Board. DIR also is the government agency that has responsibility for the OSH Standards Board. While the Legislature is responsible for passing the laws, it has delegated responsibility for issuing regulations to administrative agencies. Cal/OSHA regulations are authorized by the Labor Code § 142.3, and issued by the Occupational Safety and Health Standards Board. See http://www.dir.ca.gov/DIR/OS&H/OSHSB/oshsb.html

Occupational Safety and Health Appeals Board. DIR also has responsibility for the OSH Appeals Board. This is the administrative agency responsible for appeals from Cal/OSHA citations.
See http://www.dir.ca.gov/OSHAB/oshab.html

There is also a separate Consultation Service within the Division of Occupational Safety and Health. It provides a valuable and free service to employers who request assistance in identifying and controlling workplace hazards. The Consultation Service reports are confidential. However, if it observes a serious hazard which is not abated during the consultation period, then it will refer the matter to Cal/OSHA for possible citations.

The Division and Consultation have publications that will help you. Go to your nearest District Office and/or their list of publications on the web. See http://www.dir.ca.gov/dosh/puborder.asp and see Cal/OSHA Poster - Safety and Health Protection on the Job. Click here for the list of District Offices and click here for the office locator (if you know the zip code of the location to be inspected).

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V. THE CAL/OSHA INSPECTION, CITATION and APPEAL PROCESS

A. CAL/OSHA INSPECTS IN RESPONSE TO:

1. Complaints. Labor Code § 6309.

2. Accidents. Labor Code § 6313.

3. Follow-ups. A need to follow up a previous inspection when a serious citation was issued. Labor Code § 6320.

4. High Hazard List. A need to regularly inspect or target places of employment that appear on a High Hazard List (a system has been developed by the Director of DIR which identifies the 100 highest hazard industries in California, it is revised every two years; the Division then must establish and maintain regional plans for allocating its resources for enforcement activities focusing on industries selected from the High Hazard list). Labor Code § 6314.1 (SB 198).

See a 2002 Cal/OSHA Report which, among other things, contains information about the High Hazard Enforcement Program:
Full Report: http://www.dir.ca.gov/dosh/dosh_publications/2002REPORT.pdf
Executive Summary: http://www.dir.ca.gov/dosh/dosh_publications/legrpt.html

5. Permits (which are issued for particularly hazardous work such as trenching/excavating, scaffolding over 36 feet, demolition, etc.). Labor Code § 6500 et seq.

6. Special Inspection Programs.

Each year Cal/OSHA develops an Annual Performance Plan outlining its performance goals for the upcoming year. Click here for the 2008 Annual Performance Plan for Cal/OSHA Enforcement. In previous plans, Cal/OSHA developed a number of special inspection programs. Among these are the Agricultural Safety and Health Inspection Project (the ASHIP Protocol is no longer available on-line, but you can reference P&P C-46 Field Sanitation and Agricultural Safety & Health for some additional information) , the Construction Safety and Health Inspection Project (CSHIP Protocol) , and the Bloodborne Pathogens Safety and Health Inspection Project (BSHIP Protocol) . Check out the Cal/OSHA Enforcement web page for more up to date information (http://www.dir.ca.gov/DOSH/EnforcementPage.htm).

 

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B. HOW DO YOU FILE A COMPLAINT?

1. WHERE TO FILE

If you believe hazardous, unsafe or unhealthy conditions exist at your workplace, and you cannot resolve the problem cooperatively with your employer. This will initiate an inspection by a Cal/OSHA compliance safety engineer (CSE) or an industrial hygienist (IH) from Cal/OSHA. To read Cal/OSHA's information on Filing a Complaint, use links from their Workers' Page(http://www.dir.ca.gov/DOSH/WorkersPage.htm).

File with the closest Cal/OSHA office (For a list of Cal/OSHA offices visit http://www.dir.ca.gov/dosh/DistrictOffices.htm.) To locate the Cal/OSHA Enforcement Unit district office nearest your workplace by using your zip code use the Cal/OSHA Enforcement district office locator: http://www.dir.ca.gov/asp/DoshZipSearch.html.

Cal/OSHA does NOT have an on-line complaint system at this time, but on their enforcement webpage, you will find a copy of their complaint form which you can fax to them. See http://www.dir.ca.gov/DOSH/WebComplaintForm.pdf . However, you do NOT have to use the Cal/OSHA complaint form, and Worksafe has a complaint form that may be more useful as it focuses on the elements you need to assure that Cal/OSHA treats your complaint seriously and responds in a more timely fashion. See the following material in this document.

You can also file an on-line complaint with Federal OSHA (http://www.dir.ca.gov/dosh/DistrictOffices.htm), and it will - eventually - get to Cal/OSHA. But don't rely on how quickly that will occur.

You may also file a "complaint" with Cal/OSHA when an accident occurs. Although this is NOT normally done, if you file a complaint about the accident and ask to participate in and obtain the results of the inspection and any investigation done by the Bureau of Investigations, you might have a chance to help with that inspection or investigation. Cal/OSHA conducts accident inspections on its own initiative - assuming it is aware that an accident has occurred. The employer is supposed to report, but often does not. Other folks are also supposed to report, but they may not know about the accident. So, it never hurts for you to file a "complaint" or simply to request an inspection if you are aware that an accident occurred. See the information on Fact Sheet - Form Frees You from your Company Doctor for reporting requirements for employers, physicians.

Please click here for the Model Complaint Form from Worksafe. (pdf)

Click here to see an example of a thorough complaint which, if Cal/OSHA had not responded, would have provided a reasonable basis for filing a lawsuit pursuant to Labor Code 2698 et seq.

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2. WHEN AND HOW TO FILE

You may file by phone, mail or in person at a Cal/OSHA office.

Any serious matter should be telephoned to the nearest Cal/OSHA office. Serious is defined in Labor Code § 6432 requires a substantial probability that death or serious physical harm could result from the violation. This includes, but isn't limited to, circumstances where there is a substantial probability that death or great bodily injury could come from:

(1) a serious exposure exceeding an established permissible exposure limit, or
(2) from an unsafe or unhealthy condition in the workplace.

Substantial probability doesn't mean the probability that an accident or exposure will occur due to a violation, but rather the probability that death or serious physical harm would come about assuming an accident or exposure occurs as a result of the violation. Due to changes made by AB 1127 effective 1/1/2000, it is now the employer's responsibility to prove in any legal hearing on the issue that it did not or could not have known of the presence of the violation.

If you file by phone, it is important to follow up with a detailed written complaint. Your call may be received by a secretary or an inspector fielding many such calls in one day. S/he may not have time to ask for all the details necessary for a complete complaint. And even though you tried to give all the details, everything may not have been written down. Thus, it is very important to follow up in writing. ADDITIONALLY, it is important to prepare your oral and written complaint in ORDER of SERIOUSNESS. Start with the worst things and then work back.

After an initial phone call and a written follow-up, you should call Cal/OSHA again in the next day or so. You can learn if the written report was received and to whom the matter was assigned. Often you will want to speak with the inspector to explain the matter further before s/he conducts the inspection. This will be your opportunity.

Cal/OSHA is not permitted to give anyone advance notice of an inspection (without special permission), and so the inspector will not call you before s/he inspects. Labor Code § 6321 and 8 CCR 331 et seq. You, however, can call Cal/OSHA.

Cal/OSHA is required by Labor Code § 6309 to inspect a job within 3 working days to a FORMAL complaint, that is one made by a worker or a worker representative (arguably a family member can be considered a worker rep under changes made by AB 1127), including, but not limited to, an attorney, health and safety professional, or union representative, and also including any governmental agency, AND the complaint is serious as defined in Labor Code § 6432. If the complaint comes from a state or local prosecutor, Cal/OSHA must respond within 24 hours. If a non-serious FORMAL complaint is made, Cal/OSHA must respond no later than 14 calendar days.

ALSO, Cal/OSHA now must try to determine the period of time in the future that the complainant thinks the unsafe condition may continue to exist and then allocate inspection resources so as to respond first to those serious situations in which time is of the essence.

IF a complaint is not from one of the above categories of persons, there is NO set time limit in which Cal/OSHA must respond. They can simply take their time. But when a SERIOUS complaint is made, even if it is NOT A FORMAL COMPLAINT, you can push Cal/OSHA for a quick response IF you provide detailed information about the serious hazards AND let them know the job may shortly be over or the circumstances may be different (tell them when).

BUT REALIZE that if you call Cal/OSHA with CREDIBLE INFORMATION of a serious or life threatening condition, even if you are not a WORKER REPRENSATIVE or in one of the categories that requires a more prompt response, it would be IMPRUDENT of Cal/OSHA to ignore your complaint or not respond in a timely fashion. IF, HOWEVER, you fail to put your complaint in writing, fail to state clearly WHY the situation is danger, or fail to state that the condition is fleeting, it may be that Cal/OSHA can ignore your complaint with impugnity.

3. WHO MAY FILE?

Anyone may file. Furthermore, complaints are confidential. You may remind the person at Cal/OSHA to keep your name confidential. Labor Code § 6309 - second to last paragraph. Do give your name, however, and a way to reach you because Cal/OSHA may need to contact you at a future time, and Cal/OSHA responds differently to complaints from workers who give their names than to anonymous complaints.

4. WHAT IF Cal/OSHA REFUSES TO ACT?

You may file a legal action against the Chief of the Division if the Division refuses to act to prevent unsafe work conditions leading to death or serious physical harm of a worker? Labor Code § 6327.5. This, however, is extremely time consuming, expensive, and often won't produce effective results. It is best to figure out how to get Cal/OSHA to conduct the inspection by giving them a complete and compelling complaint, and by having established your credibility with Cal/OSHA.

You also have a right to file a CASPA, a complaint against the state plan operation. This is filed with Federal OSHA Region 9. Their address is 71 Stevenson Street, Suite 420, San Francisco, CA 94105, 415-975-4310. See Fed OSH standards here: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=STANDARDS&p_id=11205&p_text_version=FALSE

5. WHAT IF I SUFFER RETALIATION?

If there is any discrimination against a complainant, such should be pursued with the Division of Labor Standards Enforcement. Labor Code §§ 6310-6312. You must file within 6 months after you believe the discrimination occurred (the law was changed by AB 1127 eff. 1/1/00). 

What are Your Rights if You Suffer Retaliation for OSH Activity? (pdf)

A training outline concerning OSH Retaliation is in the Appendix at page 65. See also the DLSE web material on filing Retaliation matters. See http://www.dir.ca.gov/dlse/HowToFileDiscriminationComplaint.htm.

 

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C. SUBSTANCE OF COMPLAINT

1. What are the Elements of a Complaint - Be COMPLETE

You have a right to work in a safe and healthful work place. Labor Code § 6400 - 6405. If it is not safe, file a complaint. The complaint should be as complete as possible. Document whatever you can: submit written proof or pictures if you have them, write down the information from chemical labels, etc.

For more information about your rights, you might want to look at the Cal/OSHA Workers' page. Specifically,

A complete complaint assures you a more complete inspection. If you only include one item, it is possible that only one item will be inspected. Also, if an employer demands an inspection warrant from Cal/OSHA, a more complete complaint will help the lawyers obtain an inspection warrant to cover the entire site (wall to wall) instead of limiting Cal/OSHA to inspect only the areas of the specific complaint (partial).

You may want to look at the 23 page Cal/OSHA booklet - Guide to Cal/OSHA (English). Contact Cal/OSHA Education Unit, or download from http://www.dir.ca.gov/DIR/OS&H/DOSH/dosh_publications/INDEX.html You can contact them by e-mail at DOSHEducation@dir.ca.gov.

There are two basic types of complaints. You can describe something that occurred just once (an incident or accident) or you can describe an ongoing condition.

a. Describing an Event

Present the information in a time sequence. Make the listener or reader hear and see what happened in the order in which it happened. A good technique to help convey the information is to pretend you are making a movie of the event. You would begin with an empty stage, then turn on the lights (day or night shift), paint the scenery (cranes, scaffolds, trenches, etc.), populate the stage (how many and what types of workers are exposed, where are they located, what management people are present, etc.), costume the characters (what protective clothing, equipment, respirators, etc.), provide the props (what physical items are involved in operating the machinery, what tools are used, etc.), and turn on the camera.

Don't forget the sound. Background noise is as important as conversation. It may be so loud that it constitutes a violation in and of itself. Or it may make it difficult for someone to hear what it is that they said they heard.

Then tell who, what, where, when and how. But most of all, try to explain why something occurred. When describing an event, note what each of the characters says, hears, sees and does. Note when they move in and out of the picture. See the sample questions below.

b. Describe an Ongoing Condition

Present information in a spatial sequence and then in a time sequence. Make the listener or reader understand what steps are involved in constructing the building or manufacturing the product.

Again, it is helpful to think as if you were making a movie of the process. Follow the plan above, but figure on a number of scenes (at each stage and location of a construction project).

You might plan that the first scene is the arrival of the machinery that will begin to dig out the foundation for the building. Describe the process of building and the movement in and out of people, materials and machinery. Don't forget that maintenance and emergencies are a part of construction, and often a source of accidents.

In a manufacturing setting, you might plan that the first scene is the arrival of raw materials at the plant. Describe how those materials move through the plant until the final product is shipped out. Remember maintenance work and emergencies too.

In a service setting, you might plan the first scene as the arrival of a patient or materials at the hospital. Describe how the activities flow from there.

DRAW A DIAGRAM of the situation. Note all relevant equipment and machinery. You can identify or name the areas where certain work is done by simply labeling them A, B, C, etc.

See the sample questions below. NOTE: The questions below are those questions you would ask if you were to conduct a complete walk around of the worksite. You do this yourself to have a broad complaint to assure a complete inspection. YES YOU ARE DOING SOME OF CAL/OSHA'S WORK, BUT IT IS NECESSARY.

2. Sample questions:

a. Nature of job:

(1) What work is being done?
(2) Where is the work being done?
(3) When is the work done (shift) and for how long? When are the hazardous aspects of the work done (shift, time of day, weekends, etc.)? For how long? Obtain pictures if possible (be sure not to violate any employer rules).
(4) Who and how many is/are doing the work? Who and how many is/are affected by the hazard of that work (is it only the worker doing the job or are neighboring workers also affected)? Obtain names and a means to contact.

b. Who is/are the responsible employer(s):

(1) What contractor or subcontractor is doing the work? Which person(s) from management is/are at the site to direct and control that work? What is the chain of command above the management person at the site?

c. What knowledge does the employer have regarding the unsafe or unhealthy condition - THIS IS IMPORTANT TO PROVE a condition is SERIOUS:

(1) How long has the hazard existed and how long do you think it will continue to exist and why?
(2) Who in management has been notified about the hazard and what response? Note the date, time, place of notification. Who gave the notice, who received it, and who else was a witness? Note the details of the conversation. Note particularly any admissions or statements by management in response. If the employer was notified in writing, obtain a copy.
(3) Have there been any actions or statements by management that indicate in some way that they knew about this problem? Please detail as above.
(4) Have there been any injuries or illnesses in the past associated with this particular work hazard? Detail who, what, how, when, where. Obtain a medical release if possible. Look at the Cal/OSHA LOG 300 (Footnote 1).
(5) Has Cal/OSHA ever addressed the employer re this hazard? Detail who, what, how, when, where (Footnote 2).

d. Who else is aware of this unsafe or unhealthy condition:

(1) Have you notified any other government agencies?
(2) Have you contacted any other union reps?

e. General hazards involved:

(1) What are the general hazards associated with this work (falls, cave-ins, strain or overfatigue, confined space, etc.)?
(2) How is the worker affected (if not obvious)?
(3) What engineering controls exist to control the hazard (safety nets, guard rails, shoring/sloping, etc.)?

(4) What work practices exist to control the hazard (procedures requiring standbys, etc.)?
(5) What personal protective equipment is being used to control the hazard (safety belts, hard hats, respirators)? Is it required. Does the employer provide it free? See Bendix Forest Products Corp v. Division of Occupational Safety and Health (1979) 89 Cal.App. 3d 84, 158 Cal.Rptr. 882. See also Oakland Police Officers Assoc. v. City of Oakland (1973) 30 Cal.App. 3rd 96, 99.

f. Toxic hazards involved:

(1) What are the toxic hazards associated with this work (flammable vapors or corrosive, flammable or combustible liquids: solvents or paints, etc.; asbestos; wood dust or wood preservatives; welding fumes; combustible dusts; etc.)?
(2) What is the physical description of the substance? If possible, obtain name or label or MSDS (be careful not to violate any employer rules and be careful not to injure yourself when handling or coming near the toxic substance)?

(3) How is the worker affected (if not obvious and if you know)? By what route is the substance entering the body (inhaling it from the air, absorbing it through the skin, etc.)? What are the symptoms of exposure (rash, dizziness, trouble breathing, etc.)? Is the worker having any problems with certain organs (skin, liver, etc.)?
(4) What engineering controls exist to control the hazard (working asbestos wet, etc.)?
(5) What work practices exist to control the hazard (working asbestos wet, etc.)?
(6) What personal protective equipment is being used to control the hazard (respirators, eye or body protection, etc.)? Is it required? Does the employer provide it free? What type of respirator is it (if you can tell)? What type of training program was given to the worker using it (does worker have her/his own respirator, was s/he fit tested, does she/he know how to clean and store it properly, does s/he know what protection it really provides?

g. Mechanical hazards involved:

(1) What are the hazards caused by machinery, tools or heavy equipment?
(2) How is the worker affected (if not obvious)?
(3) What engineering controls exist to control the hazard (guarding, roll over protection and seat belts, etc.)?
(4) What work practices exist to control the hazard (lock or block out, etc.)?
(5) What personal protective equipment is being used to control the hazard (hard hats, goggles, etc.)? Is it required? Does the employer provide it free?

h. Does employer have a written injury and illness prevention program?

Describe it, if possible. Obtain a copy of it, if possible. Is it adequate? Is it enforced? How? Cal/OSHA must evaluate the employer's Injury and Illness Prevention Program, required by Labor Code § 6401.7 and 8 CCR 3203, 1509, etc., every time it inspects. Labor Code § 6314.5. For additional guidance, see the Injury & Illness Prevention Program Fact Sheet.

i. Have you had any problems obtaining records from the employer concerning safety and health?

The employer is required to have a written injury and illness prevention program with documentation of each aspect of that program.

It may have records of the following:

(1) An insurance experience modification rate, an accident incident rate and/or an injury frequency rate
(2) OSHA or other government agency inspections.1

It also shall have records of the following:

(3) Training (including who is trained to use personal protective equipment; who is trained and qualified/experienced to operate certain equipment and machinery and power actuated tools; who is trained regarding the hazardous substances, on the Director's List, 8 CCR 339, to which they might be exposed under either normal work conditions or reasonably foreseeable emergency conditions resulting from workplace operations.
(4) Periodic inspections (including records of maintenance of personal protective equipment and of all machinery and tools).
(5) Permits issued by OSHA (trenching/excavating, demolition, etc. pursuant to Labor Code § 6500 et seq. and 8 CCR 341 et seq.).
(6) Permits issued by other government agencies.
(7) Licenses required by OSHA or other government agencies to special work (blasting, etc.).
(8) Log of blasting.
(9) Reports indicating any carcinogens used. Labor Code § 9030.
(10) Certificates for certain equipment/machinery.
(11) Plans for trenching and excavating for public works jobs over $25,000. Labor Code § 6705.
(12) Log of injuries and illnesses (OSHA Log 300).
(13) Information about Toxic Substances. See generally, Labor Code §6408 and 6360-6399 and 8 CCR 5194, 3204, 337, 339, 340.1, 340.2, 340.3.

3. But I don't know enough law...

Don't be concerned about what is or is not evidence. But just for your own information, here are a few tips:

a. Hearsay. You may describe a situation you did not witness. You should, however, make clear in any report that you are not an eyewitness. Do obtain the name and a means for Cal/OSHA or others to contact a person who is an eyewitness. Such may be necessary if an inspection warrant is demanded by the employer or if the employer later contests any citations.

b. Sufficiency of the Evidence. You are not required to assure that the information in the report is sufficient to constitute a violation of the law. Cal/OSHA will make observations, take measurements, and interview witnesses to determine whether there is a violation of the law.

But do be sure that Cal/OSHA knows what to look for, what to measure, and who to interview. If the employer slows down, stops, or otherwise changes the nature of the operation when the Cal/OSHA inspector is present, then inform Cal/OSHA. Otherwise the evidence Cal/OSHA finds will not be a true reflection of the conditions that the worker experiences every day.

4. But I don't know enough about safety or industrial hygiene...

You need not use exact safety or health terminology. If you just describe what you see, hear, smell, etc., you will give Cal/OSHA the kind of information it needs. When describing an injury or illness, describe what the injured or ill person feels.

On the whole your descriptions are a valid way to identify a hazard. There are many examples of situations where workers or their representatives continually complained and described in detail certain persistent situations; and those descriptions actually pushed OSHA to begin research into a previously unknown or unidentified hazard.

5. Do I need a COVER LETTER to accompany the complaint?

This is not required, but it is helpful. A cover letter might address the following:

a. Additional information re the employer: Besides the basic information called for in a Cal/OSHA complaint form, a general description of the size of the operation, management structure, and current economic status can sometimes be helpful.

b. Additional information re the union: You may want to include some information about who should be contacted when Cal/OSHA does the inspection, and note their shift. If you do not indicate who, then Cal/OSHA will simply ask the employer for union representation at the walk around. That may result in the wrong person being contacted (if there is more than one union at the site or if there is more than one contact person known to the employer). It may also result in no one being contacted to attend the Opening Conference. Unless you specifically ask to attend, the Opening Conference often occurs without union representation.

 

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D. WHAT HAPPENS AFTER THE COMPLAINT IS FILED?

Cal/OSHA has an explanation of what they do on their Workers' page. See http://www.dir.ca.gov/DOSH/ComplaintHandling.htm.

FOR MORE DETAILED INFORMATION, see Cal/OSHA Policy & Procedures regarding enforcement at http://www.dir.ca.gov/samples/search/querypnp.htm.

Cal/OSHA will log your complaint, and generally it will be routed to the District Manager or District Supervisor (depending on whether it is a safety or health matter or both and depending on whether a person with a safety or health background fills those positions). Most likely, the complaint will be assigned that day to an Industrial Hygienist (IH) or Compliance Safety Engineer (CSE).

When you call a day after the complaint is received, make sure you ask to talk to the IH or CSE assigned. You want to try to call before they go out to inspect to let them know you are interested in this matter. When you talk about the matter, give the IH or CSE more details, if possible. The more information Cal/OSHA has before an inspection is conducted, the better able the inspector is to prepare.

With more information, the inspector will be able to check all the appropriate laws and regulations before going to the site. S/he will be able to bring all the correct equipment for taking samples and thus the inspection will be more efficient. The inspector will have a better understanding of what is most important to you as among several matters in the complaint.

And most important, the inspector will have a real person, who is interested in helping, to whom s/he can relate. This will help provide a better inspection.

Please go to the Table of Contents from Cal/OSHA Policy & Procedures (P&P) Manual.

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E. WHAT HAPPENS DURING THE INSPECTION?

An inspection may be wall-to-wall or partial depending on the nature of the complaint. A wall-to-wall will provide you with information about the entire worksite. Sometimes, however, a complaint focusing on a particular problem, resulting in a limited partial inspection, is all that is necessary. Sometimes too, a wall-to-wall inspection was recently conducted and only a limited partial inspection is necessary to address a new problem or changed condition.

Opening Conference. The inspection begins with the Opening Conference with the employer and with workers or worker representatives. The employer often will inquire as to why the inspection is occurring. The CSE or IH will not divulge the name of the complainant, but may indicate that the inspection is the result of a complaint, an accident, a High Hazard List inspection, etc. The CSE/IH will also cover all the basic rights and responsibilities of the employer and employees.

Walk Around. Next there is a Walk Around. You have a right to participate in the walk around inspection. Labor Code § 6314(d). Union or other worker representatives may be paid for walkaround time under circumstances set forth in Division of Labor Standards Enforcement v. Texaco Inc. (1983) 152 Cal.App. 3d Supp. 1.

Be sure that individual workers, who have information regarding the hazards, communicate privately with the inspectors during the walk around. (Footnote 3) Labor Code § 6314(d). Be sure to point out anything that may not be obvious to the inspector, particularly if the process the inspector is seeing is different than that which normally occurs (slow-down or shut-down).

However, for best results, communication between the inspector and the workers should take place away from the work place. Schedule a meeting at the close of the first day of the inspection, at the end of shift, at a nearby coffee shop. Although inspectors are permitted to interview workers during the inspection on site, it is difficult to do for both the inspector (who may feel hassled) and the worker (who may feel intimidated).

Exit Conference. If the inspection takes longer than one day, there will be an Exit Conference each day. This is with the Employer and the workers or worker representatives. It will advise of what was done and what is to come.

Closing Conference. Finally, there is a Closing Conference. This occurs after all the sampling is complete and all the results have been returned. If health samples are involved, it may take more than 6 weeks before the results are received. The Closing Conference is often held separately with the employer and with the workers or worker representatives. You should ask to attend the Closing Conference with the employer, if you can. At the Closing Conference with the employer, Cal/OSHA presents the citations and sets abatement dates. There is often discussion of both those issues and valuable information can be learned. Take notes.

Even if you attend the employer's Closing Conference, try also to organize a worker Closing Conference. Take advantage of the Cal/OSHA inspector to have him/her explain any important issues. Ask questions regarding why some violations you believed existed were not cited.

Citation. The citation must be posted for at least 3 days or until the condition is corrected, whichever is longer. Labor Code § 6318, 6408.

Imminent Hazard (Yellow Tag). Cal/OSHA can shut down an imminent hazard if it issues an Order Prohibiting Use. Labor Code § 6325. A violation of the OPU is a misdemeanor. Labor Code § 6326. Cal/OSHA can go to Court for Civil Enforcement. If there is a serious menace, then Cal/OSHA may apply to the Superior Court for an injunction restraining its use or operation. Labor Code §§ 6323, 6324.

Special Order. If there is an unsafe or unhealthful condition which poses a threat to the health or safety of an employee and which cannot be made safe under existing standards or orders of the standards board, then a Special Order may issue. Labor Code § 6305.

Penalties. Information regarding the penalty process is found at Labor Code § 6319. See also Labor Code §§ 6423 - 6436. AB 1127 made CHANGES in the law so that beginning 1/1/2000, state and local government agencies are no longer exempt from penalties (see Labor Code § 6434).

Administrative penalties were increased But remember Cal/OSHA has a set of procedures they follow to reduce the base penalty based on the size, history and good or bad faith of the employer.

Criminal penalties (fines and jail time) were substantially increased and a new crime added.

Amendments to Labor Code §6425 give prosecutors the ability to file either misdemeanor or felony criminal charges against employers who willfully violate safety and health standards and cause death or permanent or prolonged impairment. Although manslaughter charges could previously be filed, the monetary penalty was limited upon conviction. Labor Code §6425 provides for a fine up to $250,000 for an individual and $1.5 million for a company and a prison sentence of 16 months, 2 or 3 years upon a first conviction. Greater penalties are available for subsequent convictions.

The word willfully in criminal cases is now defined as in Penal Code § 7, not according to the definition created by the OSH Appeals Board in administrative cases.

Amendments to Labor Code §6423 increase the penalty from 6 months to 1 year in jail and from $5,000 to $15,000 for an individual or $150,000 for a company for repeatedly violating safety and health standards or failing or refusing to comply after abatement period has run when that activity causes a real and apparent hazard to workers, or for inducing another to do that or inducing another to negligently violate a standard where the violation is deemed serious.

Amendments to Labor Code §6430 create a new crime if an employer submits a signed statement affirming compliance with abatement terms of a Cal/OSHA citation and such is found not to be true. This crime is a misdemeanor with up to 1 year in jail and $30,000 fine for an individual or $300,000 fine for a company.

THE LAW HAS NOT CHANGED regarding WHICH INDIVIDUALS may be prosecuted. It is exactly the same as before.

Practically speaking, the DA will want to prosecute individuals when they have real control of the work place and are high enough up in the "food chain" that they could meaningfully allocate resources to make the workplace safe. That does not mean that someone lower down might not be charged, but in reality, if a foreman, general foreman, or even superintendent has taken reasonable steps to ask superiors for safety or health protection for their crew, and acted reasonably under all the circumstances to provide health and safety, it is not likely they will be charged.

As a precaution, my advice is to document your communications with your superiors! If someone is to be charged and go to jail, it may as well be those who profit from the lack of safety or health.

And if intermediate supervision document up the line, perhaps those higher up will be forewarned and take the steps to prevent a serious injury or death. After all, that's the purpose of criminal prosecutions as a deterrent.

 

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F. WHAT HAPPENS AFTER THE INSPECTION?

The employee will be advised, eventually, of the results of an inspection where s/he complained. Labor Code § 6309. However, don't wait for something to come in the mail.

Informal Conference. The employer may request an Informal Conference. Thus, after the inspection be sure you contact the CSE or IH and let them know you want to continue to be involved in all aspects of the proceedings including the Informal Conference. At the Informal Conference, the employer may argue his position with regard to the validity of the citations or the equities of the abatement dates. Information regarding modification of abatement requirements is at Labor Code § 6319.5.

Follow-Up Inspection. At some point a follow-up inspection may be conducted. The law provides for mandatory and discretionary follow-ups. Labor Code § 6320.

"(a) If, after inspection or investigation, the division issues a special order, order to take special action, or a citation for a serious violation, and if at the time of inspection the order is not complied with or the violation is not abated, the division shall conduct a reinspection in the following cases:

"(1) All inspections or investigations involving a serious violation of a standard adopted pursuant to Section 6401.7, a special order or order to take special action, serious violations of those orders, and serious violations characterized as repeat or willful or with abatement periods of less than six days. These

reinspections shall be conducted at the end of the period fixed for compliance with the order or abatement of the violation or within 30 days thereafter. "(2) At least 20 percent of the inspections or investigations involving a serious violation no otherwise scheduled for reinspection. These inspections shall be randomly selected and shall be conducted at the end of the period fixed for abatement of the violation or within a reasonable time thereafter.

"(b) Whenever a serious violation is not abated at the time of the initial or subsequent inspection, the division shall require the employer to submit a signed statement under penalty of perjury that he or she has complied with the abatement terms within the period fixed for abatement of the violation. If the statement is not received by the division within 10 working days after the end of the period fixed for abatement, the division shall revoke any adjustments to the civil penalty based on abatement of the violation. .... The division shall conduct a reinspection of serious violations within 45 days following the end of the abatement period whenever it still has no evidence of abatement."

Appeal of Citation by Employer. The employer may appeal a citation, the abatement date, or the penalty. Labor Code § 6319, 6600-6633 and 8 CCR 361.2. An Appeal must be filed within 15 days of the date citations were issued. See 8 CCR 345 et seq. If a citation is appealed, it may be reviewed by an Administrative Law Judge, the Occupational Safety and Health Appeals Board, and ultimately a court.

For details on the appeals process, contact the OSH Appeals Board, 2520 Venture Oaks Way, Suite 300, Sacramento, CA 95833, 916-274-5751, 916-274-5785 (FAX) and ask for their Rules of Practice and Procedure with Sample Forms with Instructions, and Excerpts from the California Labor Code and Health and Safety Code. They also have a video about hearing procedures, and although it is directed at employers, you will find it helpful. See http://www.dir.ca.gov/OSHAB/oshab.html.

Contact the OSH Appeals Board and the inspector who handled the case shortly after it is closed to determine whether an Appeal was filed. If it was, then you will want to obtain party status and participate before the Occupational Safety and Health Appeals Board.

Appeal of Abatement Date by Workers. The workers or their representatives can only appeal the abatement date. Labor Code § 6601 and 8 CCR 361. If you wish to file an appeal, do so within 15 days of the time that the citations were issued.

Workers and Unions may obtain Party Status in the Employer's Appeal. Obtain party status by contacting the Occupational Safety and Health Appeals Board.

Determine whether a Cal/OSHA attorney will be assigned to the case. Contact the inspector and ask if he or she is requesting legal assistance. If so, call the Legal Unit of Cal/OSHA and ask who has been assigned. Speak to the lawyer and offer to assist. Ask the lawyer to tell you what issues s/he feels are critical in the case, what witnesses s/he wants to call for the hearing, what investigation s/he thinks should be done to prepare for the case. Not only should you act as a party at the hearing, which will allow you to present witnesses and evidence and to cross-examine witnesses, but also you should work cooperatively with the Cal/OSHA attorney.

The hearing will be held before an Administrative Law Judge of the Occupational Safety and Health Appeals Board. The rules of evidence may be more or less followed, depending on the ALJ; strict adherence is not required. The ALJ should afford you due process: that is notice and a right to be heard. If something comes up of which you were not aware, state that on the record. If the ALJ refuses to let you participate, respectfully request that you be allowed to speak and be sure your request is on the record. The ALJ may ask questions of and cross-examine the witnesses in an effort to ascertain the truth of the citations; however, s/he is not supposed to be partisan. After the hearing s/he will issue a written decision, and it will be mailed to the parties.

Petition for Reconsideration. A Petition for Reconsideration may be filed if you think that the decision of the Administrative Law Judge was incorrect. See 8 CCR 389. It must be filed within 30 working days of service or posting of the order or decision by the ALJ. It is heard by the Occupational Safety and Health Appeals Board, which is a three person Board appointed by the Governor. Usually only written briefs are submitted; there is no oral argument.

Petition for Writ of Mandamus. A Petition for Writ of Mandamus may be filed if you don't like the results of the OSHAB decision. See Code of Civil Procedure 1094.5 and Labor Code Section 6627. It must be filed within 30 days of denial of the Petition for Reconsideration or of the Decision and Order upon Reconsideration. It is filed in a Superior Court, and it is based upon the record made before the ALJ.

 

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FOOTNOTES


1. The Log 300 (8 CCR 14300.29(b)6)-(10)) is a record of information about every occupational death, every nonfatal occupational illness, and those nonfatal occupational injuries which involve one or more of the following: loss of consciousness, restricted work activity or job transfer, days away from work, or medical treatment beyond first aid. The required elements for the Cal/OSHA Form 300 are found in Appendix D of 8 CCR 14300 - 14300.48. See also various definitions in 8 CCR 14300 et. seq. for more precise information related to partial exemption for 10 or fewer employees, partial exemption for certain industries, recording criteria generally, including (among other things): determining work-relatedness, determining new cases, general recording criteria, recording criteria for needlesticks, recording criteria for cases involving medical removal under Cal/OSHA standards, recording criteria for occupational hearing loss, recording criteria for work-related TB, recording criteria for work-related musculoskeletal disorders. See 8 CCR 14300.35 for further details on access to these forms.

The Log 300A is a summary of the Log 300 (8 CCR 14300 et. seq.) and is posted every February through April 30 of the year following the year covered by the form. The required elements for the Cal/OSHA Form 300 are found in Appendix E of 8 CCR 14300 - 14300.48. It is also available for inspection and copying by employees, former employees and their representatives. See 8 CCR 14300.35 for further details on access to these forms. 

Additionally, the employer must keep an "injury and illness incident report" (8 CCR 14300.29(b)(6)-(10)). The Cal/OSHA Form 301 is required for every report that is on the Log 300. The required elements for the Cal/OSHA Form 301 are found in Appendix F of 8 CCR 14300 - 14300.48. The form must be filled out within 7 calendar days after the employer receives information that a recordable work-related injury or illness has occurred. The form must be kept on file for 5 years per 8 CCR 14300.33. It is also available for inspection and copying by employees, former employees and their representatives. See 8 CCR 14300.35 for further details on access to these forms. 

In addition, 8 CCR 14001 requires every employer shall file a complete report of every occupational injury or occupational illness to each employee which results in lost time beyond the date of such injury or illness or which requires medical treatment beyond first aid as defined in LC 5401(a). "Lost time" means absence from work for a full day or shift beyond the date of the injury or illness. The report shall be made on Form 5020, Rev.6, known as the Employer's Report of Occupational Injury or Illness which is referenced in 8 CCR 14004. The employer files this with his or her insurance company or if self-insured with the Division of Labor Statistics and Research. Labor Code §6409.1(a) requires employers to report, within 5 days of knowledge, to the Division of Labor Statistics and Research about occupational injuries or illnesses. The time requirements are also stated in regulations at 8 CCR 14001(d) and (e). And 8 CCR 14001(b) requires an amended report within 5 days after the employer is notified or learns of the death of the employee. 

Labor Code §6409.1(b) requires employers also to report immediately (within 24 hours) to the nearest Cal/OSHA office if the accident is serious, that is if it involved inpatient hospitalization for more than 24 hours for something other than medical observation, or if it involved the loss of any piece of the body, any serious degree of permanent disfigurement or death. See 8 CCR 330(h). Also, if an employee dies after an initial report is filed, the employer must file an amended report. See Labor Code §6409.1(a) and 8 CCR 342 which addresses reporting of fatalities and serious injuries.

An occupational illness means any abnormal condition or disorder caused by exposure to environmental factors associated with employment, including acute and chronic illnesses or diseases which may be caused by inhalation, absorption, ingestion, or direct contact. See Labor Code §6409(b).

See 8 CCR 14300.35 for further details on access to these forms. 

All this information, if accurate, provides an idea of the types of injuries and illnesses confronting workers. A survey of workers about their injuries and illnesses and a comparison to the log may raise the question of "what are they trying to hide?" It may also be an OSHA violation.

Some employers deny access claiming the information is "medical information" and confidential. Then you must file a complaint with Cal/OSHA.

In Federal jurisdictions, some industrial sectors are excluded from this requirement: public administration, some retail and food establishments, etc.

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2. You may also obtain some of these from Cal/OSHA using the California Public Records Act (CPRA), Government Code § 6250-6265, or for federal files, from Federal OSHA using the Freedom of Information Act (FOIA), 5 U.S.C. § 552. Under the FOIA or CPRA, a variety of documents are available. If there is an inspection file, once the case is closed, you can obtain it. However, records may be kept for only a relatively short period of time.

Files may be thin or thick. There may be good information about a company in them, or there may be nothing. Names of workers are not revealed (blotted out). Files often contain a description of the production process, a list of toxic materials used, MSDSs, accident reports, citations and abatement requirements, exposure monitoring results, correspondence, field notes and narrative description of work place conditions.

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3. Those individuals should not be docked for any time spent with inspectors. If they are, then immediately file a complaint with the Division of Labor Standards Enforcement.

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