Who Is A “Bad” Employer?

New Cal/OSHA Chief Ellen Widess recently took a victory lap in an e-mail to her employees celebrating the accomplishments of her first 100 days. As you would expect, her catalog of victories was long on rhetoric and short on accomplishments. To give her some credit, she is hampered by Governor Brown’s prohibition against hiring and travel. Hard to run a state agency with only one of those restrictions, let alone both.

Two themes recur in Widess’s statements since taking the helm. The first is her declaration that she does not have the time or the disposition to play the “gotcha” game. The second is her determination to focus Cal/OSHA’s energies on weeding out California’s “bad” employers.

The first is easy to understand. Every new head of an administrative agency with the power to enforce a myriad of rules broad and specific says the same. And given the budgetary limits on her powers, she is wise to support substance over form.

The second is more problematic. When asked directly who is a bad employer, she has no clear answer. She talks generally about employers in the underground economy and mentions the lives saved by rigorous enforcement of the heat illness standard. But as to specifics, the best she, Deputy Chief of Enforcement Chris Lee and Chief Counsel Amy Martin can do is to point to T. L. Pavlich Construction, Inc., an underground construction company based in Southern California.

Late last year, a worker for T L Pavlich suffered burn injuries in a flash fire while inside a pipe. The job site where the accident occurred was placed under an OPU (Order Prohibiting Use, a topic for a later blog); the rest of the company’s job sites on this miles-long project were not. But when the Division’s inspector learned that the same work was being performed at the other sites, it didn’t matter that the work was being performed both safely and in accordance with the regulations.

The result was, in rapid order, multiple Serious Willful citations related to the pre-OPU incident, referrals to the local DA and City Attorney urging criminal prosecution and to the CSLB urging it to investigate whether the company’s license to work should be revoked. And multiple news releases castigating the company.

The facts, however, are that 1) the OPU was written and communicated poorly; 2) the company is decades old and has no significant history of citations; 3) since 2000 it has worked on 10 underground construction jobs for public entities, averaging 13 workers per job at an average cost of $5,517,152.00; 4) its workers’ compensation experience modification rate over the past 11 years has averaged 0.86, with no year over 1.0; 5) the company has received numerous safety commendations, and 6) the worker involved is a long-term, well-trained union-certified journeyman welder.

But none of that mattered to Cal/OSHA. It appears that who is “bad” and who is not lies in the eye, and the agenda, of the beholder.

Categories: Cal OSHA Litigation

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