Abatement 2016: Abatement Law Becomes a Growth Industry

In our last blog we discussed how the Appeals Board was led by labor and workers’ advocacy groups to amend 8 CCR section 373 to provide an expedited hearing process for appeals of citations where the hazard was un-abated at the time the citation was issued.

No sooner had employers and Cal/OSHA begun to adjust to the “rocket docket” rules for expedited hearings than the same advocacy groups which had pressed the Board so hard decided that the amendments to 373 were insufficient.

The Board’s new program only addressed cases where abatement remained outstanding. (See our second blog on abatement) It left the rules for the calculation of penalties intact because those rules, including the automatic 50% abatement credit, were mandated by the Labor Code. Only the Legislature could change that.

Enter Assembly Bill 1634 by Nancy Skinner (D-Berkeley). This bill amended Labor Code section 6319 to do away with the automatic credit by prohibiting Cal/OSHA from proposing a modification of the initial penalty amount unless the related hazard was (1) abated at the time of the initial inspection or (2) a subsequent inspection before a citation is issued, or (3) the employer has provided a statement of abatement, signed under penalty of perjury, with ”supporting evidence.” It is the handling of the third alternative which creates the mischief.

Changes to Labor Code section 6320 require that to qualify for the 50% reduction the employer must declare that abatement was completed “within the period fixed for abatement.” The signed statement must be “...received within 10 working days after the end of the period fixed for abatement.”

If this documentation is not received, Cal/OSHA is directed to notify the employer that an additional penalty for failing to abate will be assessed retroactively from the “end of the abatement period.” Cal/OSHA is also directed to conduct a follow-up inspection within 45 days in cases of serious-classified violations where no abatement verification is received.

AB 1634 did not address a number of practical issues, and created a lot of uncertainty in the “regulated community.” First among these is whether the obligation to abate continues to be stayed during a pending appeal. The Labor Code changes enacted by the bill make no mention of stays of abatement at all.

Under the Appeals Board’s rules, “[u]nless otherwise provided by statute, all abatement periods and changes required by [Cal/OSHA] are stayed upon the filing of a docketed appeal with the Appeals Board and remain stayed until withdrawal of the appeal or a final disposition of the proceeding by the Appeals Board.”

This is the first great conundrum posed by Labor Code sections 6319 and 6320, and 8 CCR section 373.

Next: More Conundrums And Thoughts

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