GSBE Weekly Update 08/09/2017
AB 978 is awaiting a vote by the Senate when they return from summer recess
AB 978 (Limón; D-Goleta) also circumvents the rulemaking process now underway to provide employees access to their employer’s Illness and Injury Prevention Program (IIPP). In response to a public request, the California Occupational Safety and Health (Cal/OSHA) Standards Board is moving to establish by regulation a process for employees to gain access to their employer’s IIPP.
The scope of the new rule is to identify the appropriate methods and representatives to obtain a copy of an employer’s IIPP.
Purpose of IIPP
All employers are required by Cal/OSHA regulations and the California Labor Code to establish, implement and maintain an effective written IIPP. Implementation of the program requires employers to provide information to employees at critical times about working safely through communication and training. Specific safety instructions and safety practices are not part of the IIPP.
Unlimited Designation of Employee Representatives
AB 978 allows not only an employee to obtain a copy of the IIPP, but also any number of individuals and organizations unaffiliated with the employer or the employee to be designated to request and receive a copy of the IIPP. Furthermore, employees are not limited to their authorized union representative for this purpose, nor are they limited to just one representative.
Scope of Requested Documents Too Broad
Under AB 978, a request for the IIPP also would require the employer to provide “all required attachments,” a term that is not currently in statute or regulation, leaving it open to interpretation. It is the author’s intent for the term “attachments” to include all the employer’s internal records related to the implementation of the program.
Currently, these records are available exclusively to either Cal/OSHA in an enforcement action or to plaintiffs in a legal action. During Cal/OSHA enforcement actions, the records available are limited to the matter at hand so as to limit disruption to the workplace. When requested during legal proceedings, the records are limited in scope by the laws governing Cal/OSHA investigations or litigation discovery laws. No such limiting provisions are included in AB 978.
It is concerning that an outside advocacy organization would be allowed to request and receive more employer internal operational documents and records where no violation or legal proceedings are involved than an attorney in legal proceedings and more than Cal/OSHA is entitled to in an investigation of a safety violation.
Keeps Identity of Employee Hidden from Employer
The bill does not require the identity of the employee to be disclosed to the employer. Although the language allows the employer to take reasonable steps to verify the identity of the employee or the representative, the requester isn’t required to respond, leaving the employer to wonder if in fact the individual making the request is a current employee. This provision leaves the door open to harassment of employers by multiple representatives making requests for documents for unnamed or nonexistent employees.
Costly Burden on Employers
Employers would be subject to an unlimited number of requests by an unlimited number of organizations for a potentially unending supply of documents. The employer would be required to pull together all the documents in question, copy them, and return them to their proper storage for each request. Most employers will contact an attorney before responding to determine the extent of documents subject to the request, which also has a cost, plus the costs of nuisance litigation that would surely follow many requests. Compliance costs would depend on the size of the company, the number of employees and the type of company.
For example, a construction company would have more records, such as weekly tailgate meetings, regular work site inspections, job hazard assessments and regular training documentation. The coalition-proposed amendments seek to limit these costs.
To put this in perspective, a construction contractor employer that has 100 employees is likely to have at least 20 projects in a year, generating at least 1 tailgate and 1 inspection per week per job plus records kept for its subcontractors on each project, plus subcontractors on a construction site maintaining and providing the same records. The volume of this collection consisting of just tailgate meetings and inspection records would be around 61,200 documents—not including individual training records for each employee, job site communications, enforcement or discipline records or other potential “attachments” to the IIPP. One can surmise the cost of assembling and producing only 12 months of such a volume of documents would be an enormous cost to an employer.
The cost of fulfilling just one request for the IIPP and attachments (using Cal-OSHA’s charge of $0.19 per black-and-white copy that assumes labor costs included) would be $11,628. This estimate is for one request and assumes each document is just one page; this bill does not limit the number of requests. Multiple requests will result in skyrocketing costs to employers.
The Cal/OSHA Standards Board is the appropriate entity to establish a safety rule to encompass the requirements of providing employee access to their employer’s IIPP. The rulemaking process currently underway should be allowed to continue with the result of a rule in the California Code of Regulations.