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(1) Copies of transcripts showing Approved Curriculum classwork completed during the prior year; and,
(2) A list of the Electrician Trainee's employers in the electrical industry and on-the-job experience acquired during the prior year.
(f) Within 90 days of the receipt of a renewal application, the DAS shall inform the applicant in writing either that the registration has been renewed or that the application is deficient or that the applicant has submitted insufficient proof of further classwork or experience, in which case DAS shall inform the applicant of the information or documentation required and why the proof of further classwork or experience is insufficient.
Note: Authority cited: Sections 3099 and 3099.4, Labor Code. References: Sections 3099 and 3099.4, Labor Code.
s 296.2. Enrollment in an Approved Curriculum.
(a) An individual is considered to be enrolled in an Approved Curriculum if the individual:
(1) is enrolled in a program that provides at least 50 hours of classroom instruction in an Approved Curriculum per semester if the program offers three semesters of instruction per year; or
(2) is enrolled in a program that provides at least 75 hours of classroom instruction in an Approved Curriculum per semester if the program offers two semesters of classroom instruction per year.
(b) Upon receipt of an application for registration or renewal of registration as an Electrician Trainee, DAS may request verification of the applicant's enrollment from the Educational Provider. An Educational Provider must notify DAS within 30 days if an Electrician Trainee withdraws or is withdrawn from courses after enrolling.
(c) DAS will cancel the registration of an Electrician Trainee who ceases to be enrolled in an Approved Curriculum.
Note: Authority cited: Sections 3099 and 3099.4, Labor Code. References: Sections 3099 and 3099.4, Labor Code.
s 296.3. Employment of Electrician Trainees.
(a) An employer who employs an Electrician Trainee to perform work for which certification would otherwise be required must ensure that the trainee is under the direct, on-site supervision of a Certified Electrician who is responsible for supervising no more than one trainee. By employing an Electrician Trainee to perform work for which certification would otherwise be required, the employer attests that adequate supervision will be provided.
(b) An employer that fails to provide adequate supervision to an Electrician Trainee may be barred by the Chief DAS from employing trainees in the future.
(c) The Chief DAS shall serve written notice of the intention to bar an employer from employing Electrician Trainees. Service shall be by personal service or certified mail to the employer's address on file with the Contractor's State License Board or other address known to DAS. The notice shall specify the reasons for the action proposed to be taken by the DAS and the employer's right to request a hearing. The employer may request a hearing with the Director within 30 days of service of the notice. The Director shall schedule a hearing before the Director or his or her authorized representative within 90 days after the Director receives the applicant's request for hearing with the Director. Following the hearing, the Director shall issue a written ruling that shall be sent to the appellant within 90 days after the last day of hearing. The decision of the Director shall be final except for judicial review provided by law.
Note: Authority cited: Sections 3099 and 3099.4, Labor Code. References: Sections 3099 and 3099.4, Labor Code.
s 296.4. Denial or Cancellation of Registration as an Electrician Trainee; Appeals.
(a) The Chief DAS may for good cause deny an individual registration as an Electrician Trainee or cancel an individual's registration as an Electrician Trainee. The Chief DAS shall provide the individual with written notice of the denial or cancellation at the address shown on the application for registration or other address known to the DAS. Good cause shall be deemed to exist if the individual does not meet the requirements for registration or has committed gross negligence or fraud, or engaged in repeated acts of negligence during the performance of activities subject to the registration or if the person obtained registration through mistake, misrepresentation or fraud.
(b) An applicant or registrant may appeal the denial or cancellation of registration to the Chief DAS. The appeal shall be in writing and made within 30 days of service of the notice. The appellant shall have the burden of establishing that appellant qualifies for registration. The Chief DAS shall rule on the appeal, and shall have discretion to hold a hearing on the appeal before the Chief DAS or his or her authorized representative prior to the ruling. Any hearing must commence within 90 days after the DAS receives the applicant's appeal of the denial of registration. The ruling shall be in writing and shall be sent to the appellant within 90 days after the DAS receives the appeal, or within 90 days after the last day of hearing, whichever is later. The decision of the Chief DAS shall be final, except for judicial review provided by law.
Note: Authority cited: Sections 3099 and 3099.4, Labor Code. References: Sections 3099 and 3099.4, Labor Code.
Note: Authority cited: Section 1418(a), Labor Code; Section 35730.5(a), Health and Safety Code and Section 12935(a), Government Code. Reference: Part 4.5 of Division 2, Labor Code and Part 2.8 of Division 3 of Title 2, Government Code.
Note: Authority cited: Section 1418(a), Labor Code; Section 35730.5(a), Health and Safety Code and Section 12935(a), Government Code. Reference: Part 4.5 of Division 2, Labor Code and Part 2.8 of Division 3 of Title 2, Government Code.
Note: Authority cited: Section 1418(a), Labor Code; Section 12935(a), Government Code. Reference: Sections 1420.1 and 1420.15, Labor Code; Sections 12941, 12942, Government Code.
s 300. Definitions.
Note: Authority cited: Section 1418(a), Labor Code. Reference: Section 1410, et seq., Labor Code.
<<(Chapter Originally Printed 1-12-74)>>
s 330. Definitions.
In this chapter unless otherwise specifically indicated:
(a) "Chief" means the Chief Administrative Officer of the Division of Occupational Safety and Health.
(b) "Working days" means Mondays through Fridays but shall not include Saturday, Sunday or State Holidays. In computing 15 working days, the day of receipt of any notice shall not be included, and the last day of the 15 working days shall be included.
(c) "Inspection" means any inspection of an employer's factory, plant, establishment, construction site, or other area, workplace or environment where work is performed by an employee of an employer and includes any inspection conducted pursuant to a complaint, any reinspection, or follow-up inspection.
(d) "Code" means the California Labor Code.
(e) "Order" included within the term "order" are the General Orders adopted by the Industrial Safety Board or the Industrial Accident Commission, Rules and Regulations promulgated by the Director of the Department of Industrial Relations and the Division of Occupational Safety and Health, decisions, requirements and orders made by the Division of Occupational Safety and Health.
(f) "Carcinogen" includes the following recognized cancer causing substances for which standards have been adopted:
(1) Any of the following substances and any compound, mixture, or product containing such substances:
(A) 2-acetylaminofluorene.
(B) 4-aminodiphenyl.
(C) Benzidine (and its salts).
(D) Bis (chloromethyl) ether.
(E) 3,3 ' -dichlorobenzidine (and its salts).
(F) 4-dimethylaminoazobenzene.
(G) Beta-naphthylamine.
(H) 4-Nitrobiphenyl.
(I) N-nitrosodimethylamine.
(J) Beta-propriolactone.
(K) Methyl chloromethyl ether.
(L) Alpha-naphthylamine.
(M) 4,4 ' -Methylenebis (2-Chloroaniline.)
(N) Ethyleneimine.
(2) Asbestos, including chrysotile, amosite, crocidolite, tremolite, anthophyllite, and actinolite.
(3) Vinyl chloride.
(4) 1,2- dibromo -3 chloropropane (DBCP).
(5) Coke oven emissions
(6) Acrylonitrile.
(7) Inorganic Arsenic.
(8) Ethylene Dibromide (EDB)
(9) Ethylene Oxide
(10) Any other substance for which standards are adopted and in effect due to cancer causing properties and any compound, mixture, or product containing such a substance, except as specifically exempted from such standards.
(g) "Order To Take Special Action" means any order written by the Chief or his or her authorized representative which requires the employer to comply with applicable provisions of Division 5 of the California Labor Code, or with specific standards, orders or regulations of the Standards Board whose enforcement upon the employer are at the discretion of the Division
(h) "Serious injury or illness" means any injury or illness occurring in a place of employment or in connection with any employment which requires inpatient hospitalization for a period in excess of 24 hours for other than medical observation or in which an employee suffers a loss of any member of the body or suffers any serious degree of permanent disfigurement, but does not include any injury or illness or death caused by the commission of a Penal Code violation, except the violation of Section 385 of the Penal Code, or an accident on a public street or highway.
Note: Authority cited: Sections 54, 55, 6308, 6318 and 9004, Labor Code; and Bendix Forest Products Corporation v. Division of Occupational Safety and Health (1979) 25 Cal. 3d 465, (158 Cal. Rptr. 882). Reference: Sections 6302(h), 6308 and 6318 and 9004, Labor Code.
s 331. Advance Notice.
The intent of these regulations is the complete avoidance of the advance notice to employers of pending inspections or investigations unless there are important advantages in performance of inspections to be gained by the Division of Occupational Safety and Health. Any advance notification not allowed under these rules may constitute a violation of Labor Code Section 6321, punishable by a fine of not more than $1,000 or by imprisonment for not more than six months, or by both.
Note: Authority cited: Sections 54, 55 and 6321, Labor Code. Reference: Section 6321, Labor Code.
s 331.1. When Advance Notice Justified.
(a) Except when the investigation or inspection is to be made as the result of an employee complaint, situations justifying advance notice include the following:
(1) Situations of apparent imminent danger where prompt abatement is essential;
(2) Situations when, to be effective, the inspection must be arranged to assure availability of essential personnel or access to the site, equipment, or process;
(3) Other situations where, in the judgment of the Chief or his designee, the giving of advance notice is advantageous for achieving a thorough inspection.
(b) When the investigation or inspection is to be made as the result of an employee complaint, advance notice is to be authorized only if the situation appears to present imminent danger to the health or safety of an employee or employees.
Note: Authority cited: Sections 54, 55 and 6321, Labor Code. Reference: Section 6321, Labor Code.
s 331.2. Time of Advance Notice.
The lapse of time between advance notice and the inspection shall not exceed a minimum that is consistent with the reason for such notice. In no instance will advance notice be given more than 24 hours prior to the scheduled inspection or investigation except in unusual circumstances, where imminent danger exists or where practical considerations mandate a longer period.
Note: Authority cited: Sections 54, 55 and 6321, Labor Code. Reference: Section 6321, Labor Code.
s 331.3. Notification to Employee Representative.
Any employer receiving advance notice shall promptly inform the employee representative of this fact, if there is one.
s 331.4. Arrangement for Inspection.
The employer receiving advance notice shall make any necessary arrangements at his place of business so that the inspection can proceed on schedule as planned.
s 332. Form of Citation.
The citation form shall set forth:
(a) The name of the employer, the employer's address and the workplace inspected;
(b) The nature of the violation, in specific terms with reference to the provision of the code, standard, regulation or order alleged to have been violated;
(c) Time allowed for correction of alleged violation;
(d) Rights of employees respecting the time fixed for correction of violations;
(e) Posting requirements
(f) Time within which an employer may contest a citation; and
(g) Such other information as the Division of Occupational Safety and Health deems appropriate for clear understanding of the form issued.
Note: Authority cited: Sections 54, 55 and 6317, Labor Code. Reference: Section 6317, Labor Code.
s 332.1. Issuance of Notice.
(a) If, after an inspection or investigation, the Division determines that a violation exists which is not classified as willful, serious, repeated, or related to a failure to abate, the Division may issue a Notice in lieu of citation if either of the following requirements are met:
(1) The violation does not bear a direct relationship upon employee safety or health, or;
(2) The violation bears a direct, but not immediate relationship upon employee safety or health, and is general or regulatory in nature.
(b) The Notice may be issued only if the criteria set forth in subdivision (a) hereof are satisfied, and in addition thereto, the employer agrees to abate the violative condition within a reasonable time as determined by the Division and agrees that the Notice will not be appealed. The agreement shall be indicated by the signature of the employer, or authorized employer representative, on the Notice itself.
(c) A Notice shall not be issued if the number of first instance violations, either general or regulatory, is 10 or more.
Note: Authority Cited: Sections 54, 55 and 6317, Labor Code. Reference: Section 6317, Labor Code.
s 332.2. Issuance of Special Order.
If upon inspection or investigation the Division determines that an unsafe condition, device, or place of employment poses a threat to the health and safety of an employee which cannot be made safe under existing standards or orders of the Standards Board the Division may issue a special order.
Note: Authority cited: Sections 54, 55 and 6308, Labor Code. Reference: Sections 6305 and 6308, Labor Code.
s 332.3. Issuance of Order to Take Special Action.
After inspection or investigation the Division may require the employer to comply with applicable provisions of Division 5 of the California Labor Code or with specific standards or orders of the Standards Board whose enforcement upon the employer are at the discretion of the Division.
Note: Authority cited: Sections 54, 55 and 6308. Reference: Section 6308, Labor Code.
s 332.4. Posting of Citation, Special Order, Order to Take Special Action, and Notice of No Violation After Investigation.
Citations issued pursuant to Labor Code Section 6317, Special Orders or Orders to Take Special Action issued pursuant to Labor Code Section 6308, and Notices of No Violation After Investigation issued pursuant to Labor Code Section 6318, or copies thereof, shall be posted at or near the referenced site of the violation or condition giving rise to the citation or order. The posted Citation, Special Order, Order to Take Special Action, or Notice of No Violation After Investigation shall be positioned so as to be easily read by employees working nearby. All postings shall be maintained for a period of three working days or until the unsafe condition is abated, whichever is longer.
Note: Authority cited: Sections 54, 55, 6308 and 6318, Labor Code. Reference: Sections 6305, 6308 and 6318, Labor Code.
s 333. Notice of Proposed Assessment of Civil Penalties.
Where a civil penalty is indicated, the Division shall after, or concurrent with the issuance of a citation, and within a reasonable time after the date the violation occurred, notify the employer by certified mail of the civil penalty proposed by the Division respecting the item(s) set forth as violation(s) in the citation. Any citation and/or Notice of Proposed Civil Penalty shall be deemed to be the final order of the Appeals Board, not subject to review by or appeal to any court or agency, unless within 15 working days from the date of the receipt of such citation or such notice of proposed civil penalty, the employer notifies the Appeals Board in writing of his intention to contest the citation and/or the civil penalty, with respect to violations alleged by the division, abatement periods, amount of proposed penalties, and the reasonableness of the changes required by the division to abate the condition.
Note: Authority cited: Sections 54, 55 and 6319, Labor Code. Reference: Section 6319, Labor Code.
s 334. Classification of Violations and Definitions.
For purposes of penalty assessments, violations of occupational safety and health standards, violations of California Health and Safety Code Sections 2950 and 25910, orders, special orders and regulations are classified as follows:
(a) Regulatory Violation -is a violation, other than one defined as Serious or General that pertains to permit, posting, recordkeeping, and reporting requirements as established by regulation or statute. For example, failure to obtain permit; failure to post citation, poster; failure to keep required records; failure to report industrial accidents, etc.
(b) General Violation -is a violation which is specifically determined not to be of a serious nature, but has a relationship to occupational safety and health of employees.
(c) Serious Violation.
(1) A "serious violation" shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a violation, including, but not limited to, circumstances where there is a substantial probability that either of the following could result in death or great bodily injury:
(A) A serious exposure exceeding an established permissible exposure limit or
(B) A condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in the place of employment.
(2) Notwithstanding subsection (c)(1), a serious violation shall not be deemed to exist if the employer can demonstrate that it did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.
(3) As used in subsection (c)(1), "substantial probability" refers not to the probability that an accident or exposure will occur as a result of the violation, but rather to the probability that death or serious physical harm will result assuming an accident or exposure occurs as a result of the violation.
(4) For Carcinogens -is a violation of any standard, order, or special order respecting the use of a carcinogen, as defined in 8 California Code of Regulations 330(f). However, the violation shall not be considered serious if the employer can demonstrate that he did not, and could not with the exercise of reasonable diligence, know of the presence of the violation or he can demonstrate that the Division should have determined that the violation was minor and resulted in no substantial health hazard.
(d) Repeat Violation
(1) General -is a violation where the employer has corrected, or indicated correction of an earlier violation, for which a citation was issued, and upon a later inspection is found to have committed the same violation again within a period of three years immediately preceding the latter violation. For the purpose of considering whether a violation is repeated, a repeat citation issued to employers having fixed establishments (e.g., factories, terminals, stores . . .) will be limited to the cited establishment; for employers engaged in businesses having no fixed establishments (e.g., construction, painting, excavation . . .) a repeat violation will be based on prior violations cited within the same Region of the Division.
(2) Field Sanitation Violations -Is a violation of the State Field Sanitation Standard, currently set forth in 8 CCR 3457, or of the Federal Field Sanitation Standard, currently set forth in 29 CFR 1928.110, where the employer has corrected, or indicated correction of an earlier violation, for which a citation was issued, and upon a later inspection is found to have committed the same violation within a period of five years immediately preceding the latter violation.
For the purpose of considering whether a violation is repeated, a repeat violation will be based on prior violations cited within the State.
(e) Willful Violation -is a violation where evidence shows that the employer committed an intentional and knowing, as contrasted with inadvertent, violation, and the employer is conscious of the fact that what he is doing constitutes a violation of a safety law; or, even though the employer was not consciously violating a safety law, he was aware that an unsafe or hazardous condition existed and made no reasonable effort to eliminate the condition.
(f) Abatement Date -is the date by which the employer is allowed and required to correct the condition constituting the violation.
Note: Authority cited: Sections 54, 55 and 6319, Labor Code. Reference: Sections 6302(i),6319, 6432 and 6712, Labor Code; and Sections 2950 and 25910, Health and Safety Code.
s 335. Factors Considered in Assessing Civil Penalties.
In the assessment of civil penalties, the following factors shall be considered:
(a) The Gravity of the Violation -the Division establishes the degree of gravity of General and Serious violations from its findings and evidence obtained during the inspection/investigation, from its files and records, and other records of governmental agencies pertaining to occupational injury, illness or disease. The degree of gravity of General and Serious violations is determined by assessing and evaluating the following criteria:
(1) Severity.
(A) General Violation.
i. When the safety order violated pertains to employee illness or disease, Severity shall be based upon the degree of discomfort, temporary disability and time loss from normal activity (including work) which an employee is likely to suffer as a result of occupational illness or disease which could result from the violation. Depending on the foregoing, Severity shall be rated as follows:
LOW - No time loss from work or normal activity; or minimum
discomfort.
MEDIUM - Loss of part or all of a day from work or normal activity
including time for medical attention; or moderate tem-
porary discomfort.
HIGH - Loss of more than one day from regular work or normal
activity including time for medical attention; or consid-
erable temporary discomfort.
ii. When the safety order violated does not pertain to employee illness or disease, Severity shall be based upon the type and amount of medical treatment likely to be required or which would be appropriate for the type of injury that would most likely result from the violation. Depending on such treatment, Severity shall be rated as follows:
LOW - Requiring first-aid only.
MEDIUM - Requiring medical attention but not more than 24-hour
hospitalization.
HIGH - Requiring more than 24-hour hospitalization.
(B) Serious Violation.
The Severity of a Serious violation is considered to be HIGH.
(2) Extent.
i. When the safety order violated pertains to employee illness or disease, Extent shall be based upon the number of employees exposed:
LOW - 1 to 5 employees.
MEDIUM - 6 to 25 employees.
HIGH - 26 or more employees.
ii. When the safety order violated does not pertain to employee illness or disease, Extent shall be based upon the degree to which a safety order is violated. It is related to the ratio of the number of violations of a certain order to the number of possibilities for a violation on the premises or site. It is an indication of how widespread the violation is. Depending on the foregoing, Extent is rated as:
LOW - When an isolated violation of the standard occurs, or less
than 15% of the units are in violation.
MEDIUM - When occasional violation of the standard occurs or
15-50% of the units are in violation.
HIGH - When numerous violations of the standard occur, or
more than 50% of the units are in violation.
(3) Likelihood.
Likelihood is the probability that injury, illness or disease will occur as a result of the violation. Thus, Likelihood is based on (i) the number of employees exposed to the hazard created by the violation, and (ii) the extent to which the violation has in the past resulted in injury, illness or disease to the employees of the firm and/or industry in general, as shown by experience, available statistics or records. Depending on the above two criteria, Likelihood is rated as:
LOW, MODERATE OR HIGH
(b) The Size of the Business of the Employer -is based upon the number of individuals employed at the time of the inspection/investigation. Size of the Business is evaluated based upon the following classifications of the number of persons employed: 10 or fewer employees.
10 or fewer employees.
11 to 25 employees.
26 to 60 employees.
61 to 100 employees.
More than 100 employees.
(c) The Good Faith of the Employer -is based upon the quality and extent of the safety program the employer has in effect and operating. It includes the employer's awareness of CAL/OSHA, and any indications of the employer's desire to comply with the Act, by specific displays of accomplishments. Depending on such safety programs and the efforts of the employer to comply with the Act, Good Faith is rated as:
GOOD - Effective safety program.
FAIR - Average safety program.
POOR - No effective safety program.
(d) The History of Previous Violations -is the employer's history of compliance, determined by examining and evaluating the employer's records in the Division's files. Depending on such records, the History of Previous Violations is rated as:
GOOD - Within the last three years, no Serious, Repeat, or Willful
violations and less than one General or Regulatory viola-
tion per 100 employees at the establishment.
FAIR - Within the last three years, no Serious, Repeat, or Willful
violations and less than 20 General or Regulatory viola-
tions per 100 employees at the establishment.
POOR - Within the last three years, a Serious, Repeat, or Willful
violation or more than 20 General or Regulatory viola-
tions per 100 employees at the establishment.
For the purpose of this subsection, establishment and the three-year computation, shall have the same meaning as in Section 334(d) of this Article.
s 336. Assessment of Civil Penalties.
Civil penalties for Regulatory, General, Serious, Repeat, Willful, and Failure to Abate violations shall be assessed in the following manner:
(a) Regulatory Violation -
(1) In General -Any employer who commits any Regulatory violation (as provided in Section 334(a) of this article) shall be assessed a civil penalty of up to $7000 for each such violation. Except as set forth in parts (2) through (6) of this subsection, a minimum proposed penalty of $500, representing the gravity of the violation, shall be assessed against employers who commit Regulatory violations. The proposed penalty shall be adjusted for Size, Good Faith, and History; however, an abatement credit shall not be granted.
(2) For Carcinogens -A minimum proposed penalty of $1,000 for all carcinogen standard regulatory violations, other than reporting use violations, representing the gravity of the violation, shall be assessed against the employers who commit such violations. The proposed penalty shall be adjusted for Size, Good Faith and History; however, an abatement credit shall not be granted.
(3) For Carcinogens Failure to Report Use. Any employer who violates a reporting requirement respecting the use of a carcinogen as defined in Title 8 of the California Code of Regulations section 330(f), shall be assessed a minimum proposed civil penalty of $2,500. The proposed penalty shall be adjusted for Size, Good Faith, and History; however, an abatement credit shall not be granted.
(4) For Violation of Permit or Registration Requirements. Any employer who violates the permit requirements of article 2, Permits -Excavations, Trenches, Construction and Demolition, and The Underground Use of Diesel Engines in Work in Mines and Tunnels, commencing with section 341 of Title 8 of the California Code of Regulations, or the Registration requirements of article 2.5, Registration -Asbestos-Related Work commencing with section 341.6 of Title 8 of the California Code of Regulations, shall be assessed a minimum proposed civil penalty of $1,250. The proposed penalty shall be adjusted for Size, Good Faith, and History; however, an abatement credit shall not be granted.
(5) For Violation of Elevator Permit and Posting Requirements. Any person owning or having custody, management, or operation of an elevator who operates any such elevator without a valid permit, or who fails to post the permit as required, may be assessed a civil penalty pursuant to the provisions of this article of up to $1000.
(6) For Failure to Report Serious Injury or Illness, or Death of an Employee - Any employer who fails to timely report an employee's injury or illness, or death, in vioaltion of section 342(a) of Title 8 of the California Code of Regulations, shall be assessed a minimum penalty of $5,000.
(b) General Violation -Any employer who violates any occupational safety and health standard, order or special order and such violation is determined to be a General violation (as provided in section 334(b) of this article) may be assessed a civil penalty of up to $7000 for each such violation.
Gravity of a General Violation -The Base Penalty of a General violation is determined by evaluating Severity (as provided in section 335(a)(1)(A) of this article). If the Severity is:
LOW - The Base Penalty shall be $1,000.
MEDIUM - The Base Penalty shall be $1,500.
HIGH - The Base Penalty shall be $2,000.
The Base Penalty for the General violation determined under this subsection is then subjected to an adjustment for Extent (as provided in section 335(a)(2) of this article). If the Extent is:
LOW - 25% of the Base Penalty shall be subtracted.
MEDIUM - No adjustment shall be made.
HIGH - 25% of the Base Penalty shall be added.
The Base Penalty for the General violation thus far determined is further subjected to an adjustment for Likelihood (as provided in section 335(a)(3) of this article). If Likelihood is:
LOW - 25% of the Base Penalty shall be subtracted.
MEDIUM - No adjustment shall be made.
HIGH - 25% of the Base Penalty shall be added.
The resulting figure is called the Gravity-based penalty.
(c) Serious Violation
(1) In General -Any employer who violates any occupational safety and health standard, order, or special order, and such violation is determined to be a Serious violation (as provided in section 334(c)(1) of this article) shall be assessed a civil penalty of up to $25,000 for each such violation. Because of the extreme gravity of a Serious violation an initial base penalty of $18,000 shall be assessed.
The Base Penalty for the Serious violation determined under this subsection is then subjected to an adjustment for Extent (as provided in section 335(a)(2) of this article). If the Extent is:
LOW - 25% of the Base Penalty shall be subtracted.
MEDIUM - No adjustment shall be made.
HIGH - 25% of the Base Penalty shall be added.
The Base Penalty for the Serious violation thus far determined is further subjected to an adjustment for Likelihood (as provided in section 335(a)(3) of this article). If Likelihood is:
LOW - 25% of the Base Penalty shall be subtracted.
MEDIUM - No adjustment shall be made.
HIGH - 25% of the Base Penalty shall be added.
The resulting figure is called the Gravity-based penalty.
(2) For Carcinogens -Any employer who violates any occupational safety and health standard, order, or special order respecting the use of a carcinogen, and such violation is determined to be a Serious violation (as provided in section 334(c)(4) of this article) shall be assessed a total civil penalty of $2000 for each such violation. This penalty is not subject to adjustment.
(3) Serious Violation Causing Death or Serious Injury, Illness or Exposure -If the employer commits a Serious violation and the Division has determined that the violation caused death or serious injury, illness or exposure as defined pursuant to Labor Code section 6302, the penalty shall not be reduced pursuant to this subsection, except the penalty may be reduced for Size as set forth in subsection (d)(1) of this section. The penalty shall not exceed $25,000.
(4) Operation of an Elevator in an Unsafe Condition or in Violation of an Order Prohibiting Use.
Any person owning or having custody, management or operation of an elevator who operates or permits the operation of the elevator in a condition which is dangerous to life or the safety of any person, or who operates or permits the operation of the elevator in violation of any Order Prohibiting Use issued by the Division, may be assessed a civil penalty pursuant to the provisions of this article of up to $2000.
(5) For Tower Cranes -Any employer who violates any tower crane standard, order or special order and such violation is determined to be a serious violation (as provided in section 334(c)(1) of this article) shall be assessed a penalty of $2,000. The penalty shall not be subject to adjustment as set forth in subsections (d) and (e) of this section.
(d) Further Adjustment of Regulatory, General, and Serious Violations -Subject to the provisions of parts (5) through (9) of this subsection, the Gravity-based Penalty established under either subsection (a), (b) or (c) of this section, shall be appropriately adjusted by giving due consideration to the following factors:
(1) The Size of the Business If the Size of the Business (as provided under section 335(b) of this article) is:
10 or fewer - 40% of the Gravity-based
employees Penalty shall be subtracted.
11-25 - 30% of the Gravity-based
employees Penalty shall be subtracted.
26-60 - 20% of the Gravity-based
employees Penalty shall be subtracted.
61-100 - 10% of the Gravity-based
employees Penalty shall be subtracted.
More than - No adjustment shall be made.
100 employees
(2) The Good Faith of the Employer -If the Good Faith of the Employer (as provided under section 335(c) of this article) is:
GOOD - 30% of the Gravity-based Penalty shall be subtracted.
FAIR - 15% of the Gravity-based Penalty shall be subtracted.
POOR - No adjustment shall be made.
(3) The History of Previous Violations -If the employer's History of Compliance (as provided under section 335(d) of this article) is:
GOOD - 10% of the Gravity-based Penalty shall be subtracted.
FAIR - 5% of the Gravity-based Penalty shall be subtracted.
POOR - No adjustment shall be made.
Following the preceding adjustments of the Gravity-based Penalty, the resultant penalty is termed Adjusted Penalty.
(4) If an employer cited for a violation of a safety and health provision within title 8 of the California Code of Regulations was, at the time of citation, making a good faith effort to abate the alleged violation, pursuant to written recommendations of a Consultant of the CAL/OSHA Consultation Service, the following penalty adjustments may apply:
(A) General Violation. All penalties assessed for such General violations may be waived by the Division.
(B) Serious Violation. All penalties for such Serious violations may be subject to an additional adjustment reducing the proposed penalty 50%.
(5) Serious Violations Respecting the Use of a Carcinogen -The penalty for any Serious violation respecting the use of a carcinogen as set forth in subsection (c)(2) of this section is not subject to adjustment pursuant to this subsection and shall not be otherwise reduced.
(6) Regulatory Violations of the Permit and Registration Requirements -The minimum penalty for any Regulatory violation of the permit or registration requirements as set forth in subsection (a)(4) of this section is $250.
(7) Serious Violations Causing Death or Serious Injury, Illness or Exposure - Subject to the provisions of subsection (c)(3) of this section, the penalty for any Serious violation determined by the Division to have caused death or serious injury, illness or exposure as defined pursuant to Labor Code section 6302, shall not be adjusted pursuant to this subsection, except for Size set forth in part (1) of this subsection.
(8) Injury Prevention Program -The penalty for any Serious violation shall not be subject to adjustment pursuant to this subsection other than for Size as set forth in part (1) of this subsection where the employer does not have an operative injury prevention program as set forth in Labor Code section 6401.7 and applicable regulations of the California Occupational Safety and Health Standards Board.
(9) False Declarations of Abatement -Subject to the provisions of subsection (e) of this section, where it is determined after reinspection that the employer has not complied with the abatement requirements of the Division and employer has previously submitted a statement affirming compliance therewith, the recomputed penalty shall not be adjusted pursuant to this subsection, except for Size as set forth in part (1) of this subsection.
(10) No civil penalty shall be assessed against any new employer for a period of one year after the date the new employer establishes a business in the state for a regulatory or general violation of the Injury and Illness Prevention Program Standard adopted pursuant to Labor Code section 6401.7 and applicable regulations of the California Occupational Safety and Health Standards Board, if the employer has made a good faith effort to comply with the requirement set forth therein.
(11) No civil penalty shall be assessed against an employer who adopts, posts, and implements in good faith the Model Injury and Illness Prevention Program for Non-High-Hazard Employment prepared by the Division for a first violation of the Injury and Illness Prevention Program standard adopted pursuant to Labor Code section 6401.7 and applicable regulations of the California Occupational Safety and Health Standards Board.
(12) For an employer who commits a repeat violation (as provided under section 334(d) of this article), the penalty shall not be subject to adjustment pursuant to this subsection, other than for Size as set forth in part (1) of this subsection.
(e) Abatement Credit for General and Serious Violations -The Adjusted Penalty for General and Serious violations is reduced by 50% on the presumption that the employer will correct the violations by the abatement date. The resultant penalty is termed Proposed Penalty. The following types of violations are not subject to an abatement credit:
(1) Violations designated as Repeat or Willful;
(2) Serious violations for which extent and likelihood are rated high;
(3) Serious violations respecting the use of a carcinogen; and
(4) Serious violation causing death or serious injury, illness or exposure as defined pursuant to Labor Code section 6302.
(f) Penalty for Failure to Abate Regulatory, General or Serious Violations -If the employer fails to abate the violation by the date permitted for its correction or fails to submit to the Division a signed statement of abatement of a violation within ten working days of the date set by the Division for correction of the violative condition, any abatement credit extended pursuant to subsection (e) of this Section shall be rescinded and this amount assessed as part of the failure to abate penalty. In addition, a penalty shall be assessed that is based upon the initial Gravity-based penalty for each calendar day that the previously cited violation continues unabated after expiration of the abatement period. Subject to the provisions of part (1) hereof, the Gravity-based penalty is reduced by the reevaluated adjustment factors. The adjustment factors of Size, Good Faith, and History shall be determined by evaluation of the circumstances at the time of the subsequent inspection when the failure to abate is discovered. The daily additional penalty for failure to abate a violation shall not exceed $15,000.
Limitations:
(1) Except (A) where the gravity of the violation is high and exposure to employees is continuous, or (B) the employer has exhibited a high degree of negligence in failing to correct the violation, the daily penalty for failure to abate a Regulatory or General violation may be further reduced up to 90% for the first 120 days the violation continues to exist and up to 50% thereafter where the violation does not bear a direct relationship on employee health and safety. The daily penalty for a Serious violation may be reduced up to 50% where the adjustment factors calculated pursuant to subsection (c) of this section are Low and the History and Good Faith calculated pursuant to subsection (d) of this section are Good.
(2) When a violation consisted of a number of instances and upon subsequent inspection some instances are found to have been abated and others have not, the daily penalty shall be calculated in proportion to the extent that the violation has been abated.
(3) Failure to Abate a Serious Violation Causing Death or Serious Injury, Illness or Exposure -If the employer fails to abate a Serious violation and the Division has determined that the failure to abate caused death or serious injury, illness, or exposure as defined pursuant to Labor Code section 6302, the penalty shall not be adjusted pursuant to this subsection, except for Size as set forth in subsection (d)(1) of this section.
(4) Failure to Abate a Serious Violation of Crane Standard, Order, or Special Order Causing Death or Serious Injury -If the employer fails to abate a serious violation of a crane standard, order, or special order and the Division has determined that the failure to abate caused death or serious injury as defined pursuant to Labor Code 6302, the penalty shall be $14,000 for each calendar day. The penalty is not subject to adjustment.
(5) False Declaration of Abatement -If it is determined after reinspection that the employer has not complied with the abatement requirements of the Division, and the employer has previously submitted a statement affirming compliance therewith, the recomputed penalty shall not be adjusted pursuant to this subsection, except for Size pursuant to part (1) of subsection (d) of this section.
(g) Repeat Violation -
(1) In General -If a Regulatory, General, or Serious violation is repeated (as provided under section 334(d) of this article) the Proposed Penalty is adjusted upward as follows:
1st repeat - the Proposed Penalty is multiplied by two.
2nd repeat - the Proposed Penalty is multiplied by four.
3rd repeat - the Proposed Penalty is multiplied by ten.
The resultant penalty shall not exceed $70,000.
(2) For Carcinogens -If a Serious violation respecting the use of a carcinogen or a Regulatory violation concerning a reporting requirement respecting the use of a carcinogen is repeated (as provided in section 334(d) of this article), the total civil penalty shall be as follows:
(A) For repeated Regulatory violations concerning a reporting requirement.
1st repeat - $5,000 2nd repeat - $10,000 3rd repeat - $20,000
(B) For repeated Serious violations respecting the use of a carcinogen.
1st repeat - $10,000 2nd repeat - $20,000 3rd repeat - $40,000
These penalties are not subject to adjustment.
(3) Repeated Violation Causing Death or Serious Injury, Illness or Exposure - The computation of the Proposed Penalty for a repeated violation shall not be subject to reduction, other than the Size pursuant to part (1) of subsection (d) of this section, where the violation is determined by the Division to have caused death or serious injury, illness or exposure within the meaning of Labor Code section 6302.
(h) Willful Violation -If a Regulatory, General, or Serious violation is determined to be willful (as provided under section 334(e) of this article) the Proposed Penalty is adjusted upward as follows:
Regulatory, General and Serious -the Proposed Penalty is multiplied by five. However, the penalty for any willful violation shall not be less than $5,000 and shall not exceed $70,000.
(1) Willful Violation Causing Death or Serious Injury, Illness or Exposure -The computation of the Proposed Penalty for a willful violation shall not be subject to reduction, other than the Size pursuant to part (1) of subsection (d) of this section, where the violation is determined by the Division to have caused death or serious injury, illness or exposure within the meaning of Labor Code section 6302.
(i) Serious Repeated or Willful Repeated Violation of Crane Standard, Order, or Special Order Causing Death or Serious Injury -If the employer commits a serious repeated or willful repeated violation of a crane standard, order, or special order, and the Division has determined that the violation caused death or serious injury as defined pursuant to Labor Code 6302, the penalty shall be $140,000. This penalty is not subject to adjustment.
(j) Rounding of the Fractions Amounts of the civil penalties are rounded down to the next whole dollar during the calculation stages, and final figures are adjusted downward to the next lower five dollar ($5) value.
(k) Multiple Violations Pertaining To A Single Hazard. When a single hazard is the subject matter of multiple violations resulting in civil penalties, the Division may, in its discretion, depart from the preceding criteria to mitigate the cumulative effect of such penalties.
(1) This subsection does not apply to any penalty assessed for a Serious, Willful or Repeated violation or a failure to abate a Serious violation where such violation or violations have been determined by the Division to have caused death or serious injury, illness or exposure pursuant to Labor Code section 6302. This subsection does not apply to any Regulatory, General or Serious violation where the employer does not have an operative injury prevention program as set forth in subsection (d) of this section.
Note: Authority cited: Sections 54, 55, 6319, 6319.3, 6401.7 and 9060, Labor Code. Reference: Sections 6314.5, 6318, 6319, 6320, 6401.7, 6409.1, 6427-6432, 6434, 7320, 7321, 7321.5, 7381 and 9060, Labor Code.
s 336.1. Single Violation.
s 336.10. Determination of Citable Employer.
On multi-employer worksites, both construction and non-construction, citations may be issued only to the following categories of employers when the Division has evidence that an employee was exposed to a hazard in violation of any requirement enforceable by the Division:
(a) The employer whose employees were exposed to the hazard (the exposing employer);
(b) The employer who actually created the hazard (the creating employer);
(c) The employer who was responsible, by contract or through actual practice, for safety and health conditions on the worksite; i.e., the employer who had the authority for ensuring that the hazardous condition is corrected (the controlling employer); or
(d) The employer who had the responsibility for actually correcting the hazard (the correcting employer).
Note: The employers listed in subsections (b) through (d) may be cited regardless of whether their own employees were exposed to the hazard.
Note: Authority cited: Sections 54 and 55, Labor Code. Reference: Sections 50.7, 6317, 6400, 6401, 6402, 6403, 6404, 6405, 6406 and 6407, Labor Code.
s 336.11. Determination of Applicability of Defenses.
Prior to issuing any citation to an exposing employer, the Division shall first determine whether available information indicates that the employer meets each of the defenses listed below. If the Division concludes that all five defenses have been met, the citation shall not be issued. These defenses are:
(a) The employer did not create the hazard.
(b) The employer did not have the responsibility or the authority to have the hazard corrected.
(c) The employer did not have the ability to correct or remove the hazard.
(d) The employer can demonstrate that the creating, the controlling and/or the correction employers, as appropriate, were specifically notified or were aware of the hazards to which his/her employees were exposed.
(e) The employer took appropriate feasible steps to protect his/her employees from the hazard, instructed them to recognize the hazard and, where necessary, informed them how to avoid the dangers associated with it. For the purposes of this section, where an extreme hazard is involved, appropriate feasible steps include removing the employer's employees from the job, if there is no other way to protect them from the hazard.
Note: Authority cited: Sections 54 and 55, Labor Code. Reference: Sections 50.7, 6317, 6400, 6401, 6402, 6403, 6404, 6405, 6406 and 6407, Labor Code. (continued)