The California Supreme Court has found that the federal Occupational Safety and Health Act does not prevent the state from seeking civil penalties against employers for safety violations in addition to any penalties which Cal/OSHA may assess.
Cal/OSHA issued citations to Solus Industrial Innovations after an explosion involving a water heater safety valve. The matter was referred by Cal/OSHA to the Orange County District Attorney’s Office, which filed criminal charges. The Orange County DA also filed a civil suit claiming that Solus had violated California’s Unfair Competition Law (UCL, found at Business & Professions Code § 17200) and Fair Advertising Law (FAL, found at Bus. & Prof. Code §17500). Penalties were assessed at $2,500 per day.
Solus contended that the Federal OSH Act preempted the DA from asserting claims based in state law. In essence Solus’s position was that the federal law only allows California to enforce safety and health violations through the federally-approved California Occupational Safety and Health Act. However, through a dizzying feat of legal gymnastics, the Supreme Court disagreed with the lower courts. In short, our analysis is that the Court wanted these additional claims against employers to survive, and found a way to make it happen.
To be clear, this decision does not impact enforcement of Title 8 California Code of Regulations by Cal/OSHA. Nor does it affect the power of the Contractors’ State License Board (CSLB) to bring license-revocation actions following an accident. This case only addressed the power of district attorneys to enforce criminal statutes as well as civil statutes prohibiting unfair competition in addition to any penalties which Cal/OSHA may assess.
The result is that California employers may be subject to attack from multiple state agencies following an injury accident.
The moral of the story? Beware any referral to the District Attorney’s office. While criminal charges may not be brought, civil charges may be, with penalties assessed daily, and they won’t be modest.