Governor Newsom Expected to Sign Bill Creating New Labor Code Violations, Expanding Cal/OSHA Subpoena Powers

The California Legislature will soon send Senate Bill (SB) No. 606 to Governor Gavin Newsom, who is likely to sign the bill into law. The bill would make substantial changes to the California Division of Occupational Safety and Health’s (Cal/OSHA) citation structure by creating two new categories of violations: “enterprise-wide” and “egregious.” The bill would also provide Cal/OSHA with additional subpoena power during investigations.

New Labor Code Highlights

Section 6317

SB 606 would provide a new rebuttable presumption when an employer has multiple worksites. The proposed law would create a rebuttable presumption that an employer with multiple worksites has committed an “enterprise-wide” violation upon Cal/OSHA’s finding that either of the following factors “is true”:

1. “The employer has a written policy or procedure that violates Section 25910 of the Health and Safety Code, any standard, rule, order, or regulation,” as specified in the California Labor Code.
2. 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.”

This new section is expected to affect construction industry employers with multiple worksites and big-box retailers with multiple sites throughout California, as well as large manufacturers that may have multiple establishments or locations in the state.

Section 6317.8

The bill would authorize Cal/OSHA to find that an employer has committed an “egregious violation” if the division determines that at least one of the following seven characteristics “is true”:

1. “The employer, intentionally, through conscious, voluntary action or inaction, made no reasonable effort to eliminate the known violation.”
2. “The violations resulted in worker fatalities, a worksite catastrophe, or a large number of injuries or illnesses. … ‘[C]atastrophe’ means the inpatient hospitalization, regardless of duration, of three or more employees resulting from an injury, illness, or exposure caused by a workplace hazard or condition.”
3. “The violations resulted in persistently high rates of worker injuries or illnesses.”
4. “The employer has an extensive history of prior violations” under section 6317 of the Labor Code.
5. “The employer has intentionally disregarded their health and safety responsibilities.”
6. “The employer’s conduct, taken as a whole, amounts to clear bad faith in the performance of their duties” to provide a safe work environment.
7. “The employer has committed a large number of violations so as to undermine significantly the effectiveness of any safety and health program that might be in place.”

The proposed law would create a provision that presumes that a violation in one location is evidence of a violation at another location, and it would shift the burden to the employer to prove otherwise.

Section 6317.9

The bill would add section 6317.9 to the California Labor Code and provide Cal/OSHA with new subpoena power. During an investigation, in addition to issuing a formal document request,  Cal/OSHA would have the authority to “issue a subpoena if the employer or [a] related employer entity fails to promptly provide the requested information.” Cal/OSHA would be empowered to “enforce the subpoena if the employer or the related employer entity fails to provide the requested information within a reasonable period of time.” The bill does not define “reasonable period of time.”

Effective Date

Bills signed by the governor go into effect on the first day of January of the next year unless the measure is one of urgency. SB 606 would therefore likely go into effect on January 1, 2022.