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The purpose of the Division of Occupational Safety and Health, also known as Cal/OSHA, is to promote health and safety in the workplace without impacting commerce. Or so they say. Ask any business that has had to deal with Cal/OSHA and they will tell you that as more regulations are passed the enforcement of those regulations has greatly impacted the operations of their businesses. Many of Cal/OSHA’s regulations are confusing, counter-productive and conflicting. It is becoming increasingly more difficult for employers to remain profitable while staying in compliance with all of the necessary regulations.
In addition, as a result of Federal OSHA’s recent recommendation that the number of “serious” violations issued by Cal/OSHA be increased, Cal/OSHA has increased its efforts to enforce the safety regulations and to issue greater numbers of citations altogether. These citations affect a business’s ability to do business in a variety of ways.
The penalties associated with citations can greatly affect a business’s profitability. Penalties range from several hundred to tens of thousands of dollars. In addition, if the business receives the same or a similar violation within three years of the first citation it will be classified as Repeat or Serious, with the standard penalty multiplied by up to five times.
If an injury results in a death or catastrophic injury the matter will be referred to the criminal investigation unit or to local law enforcement for investigation and the possibility of criminal charges being filed.
If a citation is classified as Serious it can be used against the business as evidence of serious and willful misconduct, should a serious and willful case be filed with the California Workers Compensation Appeals Board (“WCAB”). If an employer is found to be liable by its serious and willful misconduct it will be ordered to pay an amount equal to half the value of all benefits paid as a result of the injury. This includes all temporary and permanent disability, medical and vocational rehabilitation benefits. What makes this even more serious is the fact that the entire serious and willful award must be paid from the employer’s own funds. In addition, the employer cannot shift this liability to an insurance company or a third party. Lastly, the amount of the award cannot be adjusted by the judge – if you are liable, you must pay in full, no exceptions.
A serious and willful misconduct case is complex and is governed by the procedural rules of the WCAB as opposed to the normal rules of procedural used in the California courts. Couple this with the fact that the stakes are much higher for an employer you need an attorney with experience defending employers in serious and willful cases.
The key to a successful defense against a Cal/OSHA violation or a complaint brought by an employee concerning workplace safety is early involvement by an experienced attorney and his team of consultants. We are well-equipped to address the unique needs of each of our clients while working hard to achieve the most favorable outcome possible so that our clients can go back to doing what they do best: running their business. If you were cited by Cal/OSHA and believe they are wrong or the penalties are too high, or would like us to assist with a safety audits and risk management services call Proper Defense for a consultation.
