California Department of Resources Recycling and Recovery (CalRecycle) 

LEA Advisory #59--May 29, 2002

Division of Occupational Safety and Health

To All Local Enforcement Agencies:

This advisory provides guidance to local enforcement agencies (LEA) on the regulatory and policy changes that the Department of Industrial Relations (DIR), Division of Occupational Safety and Health (DOSH)—otherwise known as "Cal/OSHA"—has made in order to implement the provisions of Chapter 615, Statutes of 1999 (AB 1127, Steinberg) for inspections and investigations commencing on or after January 1, 2000.

Background

In 1997, the California Integrated Waste Management Board (CIWMB) revised the existing Transfer/Processing Operations and Facilities regulations. It was during this revision stage that the existing overlap of regulatory authority of DOSH was eliminated. In order to clarify the respective authorities relating to Transfer/Processing Operations and Facilities, the CIWMB and DOSH entered into a memorandum of understanding (MOU). All parties signatory to the MOU agreed upon primary areas of responsibility and authority, and the process for expediting all interagency disagreements.

The MOU defined the working relationship between DOSH, LEAs, and CIWMB. For example, if the LEA or CIWMB staff believed that there was a threat to worker health and safety that was within the jurisdiction of DOSH, the LEA could refer this condition, activity, or practice to DOSH.  DOSH was then required to act upon all referrals in accordance with Labor Code section 6309. DOSH was required to inform the referring agency in writing regarding any substantive determination made about the referral and about any action taken as a result of the referral. Lastly, DOSH agreed to participate in CIWMB trainings for LEAs, as appropriate, regarding the recognition of conditions that may be referable to DOSH.

Dissolution of the Transfer/Processing Operations MOU

On May 21, 2001, the CIWMB's Executive Director received a letter from John Howard, DOSH's Division Chief, that rescinded the 1999 interagency MOU with the CIWMB regarding worker health and safety issues at Transfer/Processing Operations and Facilities. The letter explained that AB 1127, which became effective January 2000, provides LEAs with a more-effective means of referring issues concerning worker health and safety than the non-statutory provisions of the 1999 MOU. Because of the changes that AB 1127 made to the California Labor Code, DOSH determined that the MOU was no longer necessary and rescinded it. For additional information regarding DOSH, you can visit the DOSH Web site at www.dir.ca.gov/dosh/.

DOSH also expressed an interest in providing information regarding worker health and safety issues, and recommends that LEAs contact the DOSH district office in their area. The DOSH Web site provides specific information on their various programs, which include policies, a listing of district offices, and DOSH’s policy and procedures manual (P&P C-7) which describes how DOSH will implement AB 1127.

What is in AB 1127?

AB 1127, authored by Assembly member Steinberg, became law on January 1, 2000 (Chapter 615, Statutes of 1999) and made significant statutory, regulatory, and policy changes to the DOSH enforcement process and the California Labor Code. The most significant changes include:

  • AB 1127 added “representative of a government agency” to the list of persons entitled to file a complaint with DOSH when the agency believes that an employee’s place of work is unsafe (Labor Code §6309). An LEA is a government agency. Thus, an LEA may file a complaint with DOSH if it believes that working conditions at a solid waste facility are unsafe. This enhances the ability of LEAs to promote worker safety beyond that provided under the rescinded MOU, where an LEA could only refer a matter to DOSH.
  • The new law added that DOSH will conduct investigations when a complaint is received from a government agency, which includes an LEA. The law specifically says that DOSH shall investigate complaints alleging that an employee’s “place of employment is not safe….as soon as possible, but not later than three working days after receipt of a complaint charging a serious violation, and not later than 14 calendar days after receipt of a complaint charging a non-serious violation" (Labor Code §6309).
  • Revision to civil penalties for violation of occupational safety and health standard, order, or special order (Labor Code §6428).
  • Redefined the definition of a serious violation (Labor Code §6432).
  • Deletes the longstanding statutory exemption for governmental entities from imposition of DOSH civil penalties (Labor Code §6434). 

How does AB1127 provide the LEA with a more effective means of referring worker health and safety issues? 

The most significant regulatory change of AB 1127 adds representatives of government agencies as persons who may file a complaint about workplace safety. Past practice of DOSH was to consider all LEA and CIWMB worker health and safety complaints and concerns a “referral.” The revised law expands the definition of a complaint in Labor Code §6309 to give government agencies, including an LEA, the right to file formal complaints with DOSH for all solid waste facilities or operations. DOSH is now required to respond to the complaint in a specific number of days—the MOU did not provide that. The law specifically states that DOSH shall investigate an employee’s unsafe place of employment “as soon as possible, but not later than three working days after receipt of a complaint charging a serious violation, and not later than fourteen calendar days after receipt of a complaint charging a non-serious violation." The revisions to Labor Code §6309 provide LEAs with a more-effective means of forwarding worker health and safety concerns to DOSH for compliance purposes.

Under AB 1127, an LEA can file a complaint on worker health and safety issues on all solid waste facilities, not just transfer/processing operations and facilities as was provided by the 1999 MOU.

The amended Labor Code Section §6309 also requires that DOSH “shall keep complete and accurate records of any complaints, whether verbal or written, and shall inform the complainant, whenever his or her identity is known, of any action taken by DOSH in regard to the subject matter of the complaint, and the reasons for the action.” In other words, DOSH is not only required to contact the referring agency complainant but is also required to maintain detailed records.

Complainants who identify themselves to DOSH are notified of the results of an investigation. If DOSH determines that no violation exists, written notification of this determination is given to the complainant who then has the right to request a review by DOSH.

What is the difference between the DOSH Enforcement Program and the DOSH Consultation Services Program?

The Department of Industrial Relations’ DOSH program is responsible for protecting workers and the public from safety hazards by enforcing California's occupational and public safety laws. The DOSH program is responsible for enforcing California laws and regulations pertaining to workplace safety and health and for providing assistance to employers and workers about workplace safety and health issues. DOSH covers virtually all workers in the state, including those employed by State and local government. DOSH does not cover federal employees, offshore maritime workers, or domestic service workers in private households. The worker health and safety standards are contained in the California Code of Regulations, Title 8,  Industrial Relations. Two major programs within DOSH carrying out these responsibilities are the Compliance Program and the Consultation Program. “A Guide To DOSH” provides more detailed information on these two program or can be accessed at the following Web address: www.dir.ca.gov/dosh/dosh_publications/osha_userguide.pdf. For additional information regarding DOSH, refer to their web site at: www.dir.ca.gov./dosh/.

DOSH Enforcement Unit

DOSH is authorized to conduct inspections of California workplaces based on worker complaints, accident reports, scheduled compliance inspections, and identified high hazard industries. Every workplace covered by DOSH may be subject to inspection by compliance safety and health staff considered as part of the 22 DOSH Enforcement Unit district offices statewide to enforce worker health and safety regulations. Also housed in these district offices are specialized enforcement units that address workplace hazards in high hazard industries, such as the Mining and Tunneling Unit and the High Hazard Enforcement Unit. Other specialized units include the Crane Certifier Accreditation Unit, the Asbestos Contactors’ Registration Unit, and the Asbestos Consultant and Site Surveillance Technician Unit.

A DOSH inspection of the workplace can be either “programmed planned” (randomly selected in a specific industry or as part of a special emphasis program) or “unprogrammed” (based on an accident resulting in a fatality, catastrophe, serious injury/exposure or resulting from a complaint).

Inspections resulting from a complaint of a hazard or violation believed to exist in a workplace are classified by DOSH as formal or informal and have deadline investigation response times. A formal complaint filed by an employee, employee representative, employer of an employee at a multi-employer worksite, or a representative of a government agency results in an on-site investigation within three working days for serious complaints and within fourteen days for non-serious complaints. An informal complaint filed by anyone who is not an employee or employer, or an anonymous complaint is investigated by phone/fax and deemed non-serious by letter to the employer. 

DOSH inspectors have very specific requirements on how the inspection must be conducted.  For more information, see:

DOSH Consultation Services

To encourage voluntary compliance with occupational safety and health regulations and to help reduce workplace injury and illness rates, the DOSH Consultation Service offers free assistance to employers and employees.  Consultation services include: on-site visits and compliance assistance, injury and illness prevention program improvements, and publications and educational outreach.

Employers may request on-site assistance, which DOSH will provide only through employer invitation. Employees and employee groups may request consultation away from the job site. The Consultation Service is separate and distinct from enforcement operations of DOSH, and consultants do not participate in enforcement activities. All communications between the employer and the Consultation Service are held in confidence and not shared with DOSH enforcement staff.

On-site consultation visits do not result in citations or penalties. However, in return for receiving free on-site assistance, the employer must agree to timely correction of hazards identified.

Additional information on the DOSH Consultation Services, including a video on consultation services, can be found at (www.dir.ca.gov/DOSH/consultation.html). For a statewide listing of Consultation Service area offices, see (www.dir.ca.gov/DOSH/consultation_offices.html).

Additional CIWMB Support for LEAs

DOSH inspects solid waste facilities statewide based on their scheduling ability, as needed, or in response to complaints received but usually not at the frequency that LEAs inspect. By filing complaints when needed, AB 1127 provides LEAs with the ability to work with facility operators to ensure that potential accidents, injuries, and illnesses are prevented at these facilities. To provide LEAs with additional assistance on DOSH issues, the CIWMB's LEA Support Services Branch has identified the need for future educational and training venues and guidance documents on the DOSH complaint process.

The Department of Industrial Relations, Division of Occupational Safety and Health has authority to enforce occupational safety and health standards to protect workers in California. As government representatives, it is our responsibility to support those activities that protect workers. AB1127 provides a “representative of a government agency,” including LEAs, with the ability to file a formal complaint of any unsafe or unhealthy condition that could lead to an employee becoming injured or ill. AB 1127 requires that the complainant be notified of that investigation's outcome. We encourage LEAs to establish a working relationship with local DOSH or DOSH district offices and maintaining ongoing communication with DOSH personnel will allow for better protection of workers at these facilities. While it is certainly the prerogative of LEAs to work with their operation, facility, and site operators, we encourage the reporting of occupational health and safety problems detected during monthly inspections.

I have asked the LEA Support Services Branch to continue to work with LEAs in providing assistance on inspection-related worker health and safety issues. CIWMB staff will continue to solicit your needs and develop tools and methods to assist LEAs. Further questions concerning this LEA advisory or any issues relating to inspection-related worker health and safety issues may be directed to Diane Kihara or Marc Arico.

Sincerely,

original approved by

Julie Nauman, Deputy Director
Permitting and Enforcement Division

The intent of the advisories is to provide guidance to Local Enforcement Agencies (LEA) in performing their duties. Guidance, for this purpose, is defined as providing explanation of the Board's regulations and statutes.

Unless included by reference in the LEA's Enforcement Program Plan (EPP), advisories are not enforceable in the same manner as regulations because they have not been adopted through the formal rulemaking process (see Government Code sections 11340.5 and 11342.6). Advisories do not take precedence over statute or regulation.

Advisories Home | LEA Central

Please note: These LEA advisories are retained for historical purposes. Over time, some information and links on these pages may become dated and/or inaccurate.

LEA Advisories, http://www.calrecycle.ca.gov/LEA/Advisories/
Martin Perez: Martin Perez (916) 323-0834