(August 27, 2012) Recent amendments to a California Chamber of Commerce-opposed ‘job killer’ bill make the bill even more detrimental, creating unprecedented and excessive consequences for perceived and actual violations of heat illness prevention regulations.
AB 2346 (Butler; D-Los Angeles) could also increase the price of food and force growers to move their crop production to other states and countries, thereby hurting California exports.
The provisions of the bill create traps and a ‘gotcha’ cycle from which it could be difficult for employers to exit. Among the bill’s onerous provisions that opponents find most egregious are:
- Creates a broad new private right of action even when no violation has been found by Cal/OSHA.
- Creates joint liability along with a repeat offender provision for any violation—even paperwork.
- Creates a very low bar to meet a presumption of fraud, which in civil law is a very high standard.
- Creates a new unprecedented, undefined requirement to certify the availability of a program and equipment [to comply with heat illness prevention requirements.
- Ignores and potentially undermines state law establishing workers’ compensation as the exclusive remedy for work-related injuries and illnesses by creating a private right of action to sue for damages.
Complex, Overly Burdensome Requirements
In 2005, California was the first state in the nation to adopt heat illness regulations. These regulations were developed with extensive input from labor and management. Since the adoption of these regulations, Cal/OSHA has actively worked with employers providing education and compliance assistance, as well as an enormous enforcement effort and presence. In response to the regulations and the assistance of regulators, employers have stepped up compliance efforts and reduced the incidence of heat-related illness in outdoor workplaces. Cal/OSHA attests to the success of the program in gaining increased compliance with heat illness prevention rules in outdoor places of employment throughout the state.
Agricultural employers made enormous strides in compliance and created unprecedented public-private partnerships. There is no reason for this bill.
The enforcement provisions combined with fines and penalties are extraordinarily high and unwarranted. The opportunities for litigation are almost limitless: from private rights of action and enormous awards of damages, bounty hunter provisions, joint liabilities and high penalties. State regulators have effective enforcement authority and statutory provisions for fines, penalties and due process for employers that should be respected as the appropriate authority for heat illness prevention enforcement.
This bill creates such complex and overly burdensome requirements that agricultural employers may not be able to comply. The bill is filled with procedural traps nearly impossible to avoid. As such, the overly punitive fines for violations could be a disincentive for employers to remain in California.
AB 2346 is awaiting action by the full Senate.