When the month started, we were puzzling over the topic for this issue of ECA Magazine …nothing big or scary was happening, I thought. But just when you think it’s safe to go back in the water…something huge and ugly with lots of teeth starts circling your business.
This time the big ugly is Cal/OSHA, which got a heaping handful of enforcement muscle and judicial teeth courtesy of Senate Bill 606 which is now state law and goes into effect January 1. It expands the California Division of Occupational Safety and Health’s (Cal/OSHA) enforcement authority in a way that will play havoc with any construction company that operates more than one worksite at the same time. It does so with amendments to five sections of the state Labor Code while adding two brand new chapters to the mix. You can read the final measure with changes highlighted at
Here’s What You’ve Got to Do—Rebuttable Presumption of Enterprise-Wide Violations
For employers with multiple worksites in California, SB 606 creates a “rebuttable presumption” (legalese for “prove us wrong” and a redundancy since all presumptions are “rebuttable”) that a violation is occurring “enterprise-wide” at all the employer’s locations in the state if either of the following is true according to the new law:
- The employer’s written health and safety policy or procedure is noncompliant; and/or
- Cal/OSHA “has evidence of a pattern or practice of the same violation or violations committed by that employer involving more than one of the employer’s worksites.”
The approach under SB 606 allows Cal/OSHA to achieve enterprise-wide action against an employer without the need for multiple inspections or reliance on settlement negotiations to reach that outcome.
If the employer fails to “rebut” this “presumption,” by proving to agency’s satisfaction that they are wrong in their assessment of the alleged violation Cal/OSHA can issue an enterprise-wide citation requiring abatement at every employer worksite in the state. Employers who commit an enterprise-wide violation are looking at a civil penalty of up to $124,709 for each worksite. Ten plus worksites and you are talking fines and fees in the millions.
It’s another case of the public agency acting as cop, prosecutor, and judge in your case, so you’ll have to do your rebutting at least three times. Also remember that while there is a “presumption of innocent until proven beyond a reasonable doubt” in criminal law, no such protection obtains in dealings with state agencies.
By Garrett Francis, ECA President Email: [email protected]