Starting January 1, 2015, the process for abatement of California OSHA (“Cal-OSHA”) citations changed.  In short, the new law, A.B. 1634, signed by California Governor Jerry Brown in September 2014, prohibits Cal-OSHA (“the Division”) from making penalty modifications to citations unless the alleged violation has been abated and requires employers to abate citations during the second phase of an appeal of citations.

Under the new law, where the Division issues serious citations, the Agency is prohibited from making modifications to penalties unless the employer has done one of the following:

  • Abated the violation at the time of the inspection.
  • Abated the violation at the time of a subsequent inspection prior to the issuance of a citation.
  • Submitted a signed statement under penalty of perjury and supporting evidence, when necessary, proving the alleged violation has been abated within 10 working days after the date fixed for abatement.

More importantly, for uncontested citations, if an employer fails to provide a statement and evidence of abatement within the 10 working days after the end of the abatement period, the Division can add additional civil penalties for the failure to abate.  These additional penalties for failing to abate would be applied retroactively to the end of the abatement period. Additionally, if employers have not provided evidence of abatement within 45 days following the end of the abatement period, the Division will conduct a re-inspection for any serious violations.

Prior to January 1, 2015, if an employer elected to contest a citation, the abatement of that citation was stayed pending a decision by an Administrative Law Judge (“ALJ”) and pending any additional appeals, such as a Petition for Reconsideration of a Decision.  That is, the ALJ Decision was unfavorable to the employer and the employer wanted to appeal again to the California Appeals Board (“Appeals Board”).  Under A.B. 1634 the Petition for Reconsideration will not automatically stay the abatement of the violations while the case is before the Appeals Board.  Abatement will only be suspended for 10 days once a Petition for Reconsideration is filed.  Thereafter, employers can petition the Appeals Board to stay the abatement pending the reconsideration of the ALJ decision.  Such petitions will only be granted by the Appeals Board where employers can demonstrate that a stay or suspension of the abatement will not adversely affect the health and safety of employees.

Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Tressi L. Cordaro Tressi L. Cordaro

Tressi L. Cordaro is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. She is co-leader of the firm’s Workplace Safety and Health Practice Group. She advises and represents employers on occupational safety and health matters before federal and state…

Tressi L. Cordaro is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. She is co-leader of the firm’s Workplace Safety and Health Practice Group. She advises and represents employers on occupational safety and health matters before federal and state OSHA enforcement agencies.

Ms. Cordaro has advised employers faced with willful and serious citations as the result of catastrophic events and fatalities, including citations involving multi-million dollar penalties. Ms. Cordaro’s approach to representing an employer cited by OSHA is to seek an efficient resolution of contested citations, reserving litigation as the option if the client’s business objectives cannot otherwise be achieved. As a result, she has secured OSHA withdrawals of citations without the need for litigation.

Ms. Cordaro’s unique experience with government agencies involved in OSHA enforcement enables her to provide employers with especially insightful guidance as to how regulators view OSHA compliance obligations, and evaluate contested cases.

Ms. Cordaro served as the Presidentially-appointed Legal Counsel and Special Advisor to the past Chairman and Commissioner Horace A. Thompson, III at the U.S. Occupational Safety & Health Review Commission (OSHRC) in Washington, DC, the agency that adjudicates contested federal OSHA citations. As the Commissioner’s chief counsel, Ms. Cordaro analyzed all cases presented to the OSHRC and advocated the Commissioner’s position during decisional meetings.

In addition, Ms. Cordaro worked at the U.S. Department of Labor’s Occupational Safety & Health Administration developing OSHA standards, regulations and enforcement and compliance policies, with emphasis on the construction industry. She has in-depth experience on technical issues including, in particular, issues related to cranes and derricks in construction.

Read more about Tressi L. Cordaro
Show more Show less