We know the song says, “It’s not where you start; It’s where you finish.” But to understand where we are and discern a way forward, we need to know where we were and where we are before we can know where we’re going. So, here is a brief history of abatement in California:
That Was Then: Back in 1972 when the then-new federal OSH Act came into existence, California already had an industrial safety program which was about 50 years old. Under that program, which continued when California was provisionally approved by Fed/OSHA as a “state-plan state,” penalties for violations were automatically reduced 50% on the expectation that employers would do the right thing and fix the cited hazards. Employers found to have falsely declared to have abated a hazard were - and still are - subject to further penalties of up to $15,000 per day as well as jail time.
California's law also provided that when an employer appealed a citation the obligation to abate would be suspended until the appeal was over. If the citation was dismissed, no abatement was required. If it was upheld, the clock on the employer's obligation to abate started ticking again. The logic for this was clear, at least to us in the employer community: If there really was no violation to support the citation, it follows that there was no hazard to be abated.
These rules applied to all penalty calculations and appeals, regardless of their classification.
This Is Now: In 2013, the Appeals Board came under intense pressure from organized labor and employee advocacy groups who raised heart-felt and full-throated claims that employers were misusing the appeal process to avoid abating serious hazards, and thus callously causing further worker injuries and illnesses. The problem with this claim is that it was supported, to the extent it was at all, only by anecdotes and suspicions. Not by first-person testimony, statistics or any other kind of admissible evidence. But the Board believed them.
The Board responded by amending Title 8 California Code of Regulations (CCR), section 373 http://www.dir.ca.gov/title8/373.html to push certain appeals through the system from filing to decision in 150 days or less. Given that in modern times un-expedited appeals take up to nine months or more to get from filing to hearing, this is a pretty ambitious schedule.
Called the “Expedited Proceeding” program, it applies to all citations classified as ”Serious, Repeat Serious, Willful Serious, Willful, Willful Repeat [in other words, all citations not classified as Regulatory or General (“Other” in the federal system)] or Failure to Abate, and where abatement of the alleged hazard has not occurred.
So, if the citation is classified Serious or Repeat or Willful, and also shows a future date by which the hazard must be abated, the appeal will be expedited.
The Board has set the following deadlines for appeals which are expedited: A telephonic status conference within 30 days of the date the appeal forms are docketed, and a telephonic pre-hearing conference within the next 60 days, with the hearing to be completed within 60 days after that.
During this period employers are under intense pressure to prepare for hearing or develop a realistic strategy for settlement. When a citation is issued, Cal/OSHA has had up to 6 months to martial and evaluate their evidence; an employer which finds itself in an Expedited Proceeding has only weeks to complete its investigation, discovery and depositions before facing hearing in an expedited proceeding.
The quickest way out of the expedited process, of course, is for the employer to provide verification of abatement. Aside from internal pressures to complete abatement in order to escape the expedited program, employers also feel pressure from both Cal/OSHA and the Board’s judges, but not for the reasons you might expect.
As important as considerations of worker safety are, there is the fact that an expedited appeal increases the workloads of all concerned, forcing non-expedited cases to be put on a back-burner. How much easier it is to verify abatement and take the pressure off of everyone involved, even where the need or means for abatement are disputed, or where abatement cannot be completed as quickly as the Board’s schedule allows.
Next: Abatement Law Becomes a Growth Industry