NORTH BAY – A new law could significantly change the way an employer faces charges from the Division of Occupational Safety and Health, according to employment law experts.
Assembly Bill 2774 went into effect Jan. 1 of this year. The law has the potential to bring about a “sea change” at Cal/OSHA, with significant alterations to the burden of proof standard for employers facing citations or claims against them from employees, according to attorneys at Walter & Prince, a Healdsburg law firm that specializes in OSHA and other employment law.
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California’s division of the federal work-place safety program traditionally didn’t issue as many citations as Fed OSHA, said Lisa Prince, a partner at the firm.
“Basically it’s an attempt to address that,” Ms. Prince said.
For example, Cal/OSHA now only needs to show that a violation created a “realistic possibility” of serious injury, instead of having to prove that a workplace violation created a “substantial probability” of serious injury.
“It will be easier to get a citation,” Ms. Prince said, adding that employers should take heed of the changes by emphasizing workplace safety. “It becomes more important than ever to review your safety program and do your best to avoid this altogether.”
Richard Rybicki, principal counsel with Rybicki & Associates, an employment law firm in Napa, agreed with the notion that employers would have a more difficult time fending off claims and citations.
“Employers are losing the benefit of the bargain,” he said, noting that prior to the new law, Cal/OSHA inspectors had to prove that death or serious harm would result from whatever the violation may have been. “What it did was change the standard from judges requiring that [the violation] proves there is serious harm or death to just show there is a reasonable possibility. So the problem is you’re proving a negative.”
The law also makes changes to the inspection process itself, as it now designates Cal/OSHA safety inspectors as expert witnesses, so long as their training is up to date. Previously, inspectors were not considered experts who could respond to expert witnesses brought in on behalf of employers.
The new law does allow for more initial response after a citation is issued to an employer. The employer will now have the opportunity to meet informally and discuss the inspector’s findings, where it may present evidence against the claim.
While an employer can still defend themselves under the new law, they should be cautious in their response, as it may be used as evidence, Ms. Prince said.
“There is no rule against not responding, but the response is very important,” she said. “It’s admissible. Employers need to be very cautious and very clear about it. If you don’t do it, there’s no harm, but if you it and turn out to be wrong, that’s bad news.”