Workshop Focuses On Preventing Worker Deaths, Injuries in Confined Spaces

In response to California's seven confined space fatalities in 2011, Cal/OSHA launched a statewide Confined Space Special Emphasis Initiative in February 2012. As part of this project, Cal/OSHA is offering two workshops.

• September 25 workshop
• September 26 workshop

The goal for the initiative is to focus attention on preventing workers deaths and injuries in confined spaces at California worksites. But the ultimate goal is "zero confined space fatalities," according to a Cal/OSHA media release.

Employers are required to have plans in place to identify confined spaces at their worksites. They should notify and train employees and ensure that on-site rescue plans are in place. These requirements include:

• A written confined space plan
• Procedures to test the air quality inside the space
• Proper employee and supervisor training
• Effective rescue procedures immediately available on-site

Common types of confined spaces include:

• Tanks
• Silos
• Pipelines
• Sewers
• Storage bins
• Storm drains
• Tunnels
• Vaults

This workshop will review the necessary confined space program requirements, including:

• Confined space regulations
• Classification of confined spaces
• Physical and atmospheric hazards
• Duties of the entrant/attendant/supervisor
• Atmospheric monitoring
• Ventilation
• PPE
• Rescue requirements

Best practices will be shared on how employers can comply with the regulations and keep their employees safe and alive.

Amendments to ‘Job Killer’ Make Heat Illness Bill Even Worse

Recent amendments to a California Chamber of Commerce-opposed ‘job killer’ bill make the bill even more detrimental, creating unprecedented and excessive consequences for perceived and actual violations of heat illness prevention regulations.

AB 2346 (Butler; D-Los Angeles) could also increase the price of food and force growers to move their crop production to other states and countries, thereby hurting California exports.

The provisions of the bill create traps and a ‘gotcha’ cycle from which it could be difficult for employers to exit. Among the bill’s onerous provisions that opponents find most egregious are:

• Creates a broad new private right of action even when no violation has been found by Cal/OSHA. 
• Creates joint liability along with a repeat offender provision for any violation—even paperwork.
• Creates a very low bar to meet a presumption of fraud, which in civil law is a very high standard.
• Creates a new unprecedented, undefined requirement to certify the availability of a program and equipment to comply with heat illness prevention requirements.
• Ignores and potentially undermines state law establishing workers’ compensation as the exclusive remedy for work-related injuries and illnesses by creating a private right of action to sue for damages.

Complex, Overly Burdensome Requirements

In 2005, California was the first state in the nation to adopt heat illness regulations. These regulations were developed with extensive input from labor and management. Since the adoption of these regulations, Cal/OSHA has actively worked with employers providing education and compliance assistance, as well as an enormous enforcement effort and presence. In response to the regulations and the assistance of regulators, employers have stepped up compliance efforts and reduced the incidence of heat-related illness in outdoor workplaces. Cal/OSHA attests to the success of the program in gaining increased compliance with heat illness prevention rules in outdoor places of employment throughout the state.Agricultural employers made enormous strides in compliance and created unprecedented public-private partnerships. There is no reason for this bill.The enforcement provisions combined with fines and penalties are extraordinarily high and unwarranted. The opportunities for litigation are almost limitless: from private rights of action and enormous awards of damages, bounty hunter provisions, joint liabilities and high penalties. State regulators have effective enforcement authority and statutory provisions for fines, penalties and due process for employers that should be respected as the appropriate authority for heat illness prevention enforcement.This bill creates such complex and overly burdensome requirements that agricultural employers may not be able to comply. The bill is filled with procedural traps nearly impossible to avoid. As such, the overly punitive fines for violations could be a disincentive for employers to remain in California.

Action Needed

AB 2346 is awaiting action by the full Senate.  Contact your senator and urge him/her to oppose AB 2346.

Two "Job Killer" Bills Held; Other Costly Workplace Mandates Move to Senate or Assembly for Action

Two bills were held on the Senate Appropriations Committee suspense file August 16:

• AB 1999 (Brownley; D-Santa Monica) Expansion of Discrimination Litigation — Makes it virtually impossible for employers to manage their employees and exposes them to a higher risk of litigation by expanding the Fair Employment and Housing Act to include a protected classification for any person who is, perceived, or associated with a family caregiver.
• AB 2039 (Swanson; D-Alameda) Expansion of Protected Leave Requirements for California Employers — Creates a burdensome, California–only mandated benefit that significantly expands the category of individuals with serious health conditions for whom an employee can take a leave of absence beyond what is currently included under the federal Family Medical Leave Act.

Following are "job killer" bills that are awaiting action by the full Senate or Assembly:

• OPPOSE AB 1313 (Allen; D-Santa Rosa) Increased Cost on Agricultural Employers — Drives up the cost of commodities to consumers by removing the existing overtime exemption allowed for agricultural employers. Senate Floor.
• OPPOSE AB 1450 (Allen; D-Santa Rosa) Exposure to Costly Discrimination Litigation — Subjects employers to unjustified charges of discrimination for legitimately inquiring into an applicant's most recent employment history. Senate Floor.
• OPPOSE AB 2346 (Butler; D-Los Angeles) Increased Costs and Unreasonable Requirements — Could increase the price of food and force growers to move their crop production to other states and countries, thereby hurting California exports, by creating excessive, unnecessary new rules regarding heat illness prevention with unreasonable consequences for violations. Senate Floor.

For more information on the remaining "job killer" bills, visit www.CAJobKillers.com

U.S. Department of Labor Prioritizes Whistleblower Protection

The U.S. Department of Labor (DOL)’s Occupational Safety and Health Administration (OSHA) announced a restructuring of its Whistleblower Protection Program. Under the restructuring, the DOL’s Office of the Assistant Secretary will now oversee the program.

The restructuring will significantly elevate priority status for whistleblower enforcement, according to the DOL’s announcement. Emphasizing employees’ rights, the head of OSHA, Assistant Secretary of Labor Dr. David Michaels, stated: “The ability of workers to speak out … without fear of retaliation provides the backbone for some of American workers’ most essential legal protections.”

OSHA enforces the whistleblower provisions of the Occupational Safety and Health Act. Unbeknownst to many, OSHA also enforces 20 other statutes protecting the rights of employees to report various regulatory violations relating to workplaces, commercial vehicles, airlines, the environment, consumer products, food and safety, and consumer financial reform.

OSHA also became responsible for investigating and enforcing laws protecting individuals who complain of corporate securities fraud with the passage of the Sarbanes-Oxley Act of 2002 (SOX) in 2002.

Last year, OSHA first announced that it would restructure its whistleblower program as part of a “multifaceted plan” to strengthen enforcement efforts. As part of its plan, DOL requested a budgetary increase of more than $6 million for additional investigators for FY 2012. DOL also released a new edition of its Whistleblower Investigation Manual.

Additional information is available from the DOL.

Retaliation and whistleblower claims have received a lot of attention recently and continue to be on the rise. 

Gail Cecchettini Whaley, CalChamber Employment Law Editor/Staff Counsel

Members can visit HRCalifornia for more information on workers’ rights and retaliation protections, and best practices for employers. Not a member? Learn more about HRCalifornia. 

Employers Must Post Job-Related Injuries Summary by Feb. 1

The CalChamber is reminding employers that they must post a summary of job-related injuries and illnesses from 2011 at their place of business by February 1.

The California Department of Industrial Relations (DIR) requires employers to display the Cal/OSHA Log 300 Summary of Work-Related Injuries and Illnesses (Form 300A) from February 1 to April 30 for employee review.

Companies that had 10 or fewer employees at all times during the last calendar year do not need to keep Cal/OSHA injury and illness records. Employers with 11 or more employees, except those covered in the California low-hazard establishments in the retail, service, finance and real estate sectors, must display the totals from the Form 300A wherever employee notices are usually posted.

If there is more than one business establishment, a separate summary must be posted in each physical location that is expected to be in operation for one year or longer.

More information on Log 300 filing and posting requirements is available on HRCalifornia. Not sure if these requirements apply to you? Check out this free Log 300 wizard from HRCalifornia's Forms & Tools section to find out.

Please visit CalChamber's website for complete details on the Form 300 and Form 300A.

CalChamber