Loading (50 kb)...'
(continued)
s 339.6. Annual Health and Safety Loss Control Plan.
(a) Every insurer seeking certification or recertification shall submit an annual plan as required by section 339.7(c)(5).
(b) The annual plan shall detail the insurer's program objectives for delivering loss control consultation services to those insureds selected as targeted employers, and shall include, at a minimum, the following:
(1) A budget;
(2) The methodology used by the insurer to select targeted employers;
NOTE: Section 339.11 contains guidelines for selecting targeted employers.
(3) One-year and three-year loss reduction goals for targeted employers;
(4) Size, type, and identity of each targeted employer for the coming year; and
(5) A description of the loss control consultation services provided to targeted employers during the previous year, including:
(A) Identity of targeted employers served and a summary of the services provided to each;
(B) Total expenditures for all targeted employers served;
(C) Evaluation of the effectiveness of the consultations provided, including the extent to which the previous year's loss reduction goals were met for targeted employers and an analysis of any failure to meet such goals; and
(D) A list of all employers to whom loss control consultation services have been provided through an entity other than the insurer or the insurance group to which the insurer belongs. The list shall include the identities and qualifications of the personnel who provided the consultation services.
(c) The plan shall demonstrate that the insurer has reliably identified as targeted employers those of its insureds who have the greatest worker's compensation losses and most significant preventable health and safety hazards, and that the insurer's loss control consultation services will effectively serve the needs of targeted employers.
(d) The Division shall maintain the confidentiality of all information provided by the plan, except for aggregate statistical data.
Note: Authority cited: Sections 54 and 55, Labor Code; and section 11721, Insurance Code. Reference: Section 11721, Insurance Code.
s 339.7. Application for Certification or Recertification of Loss Control Consultation Services.
(a) Applications may be obtained from the Loss Control Consultation Services Certification Unit of the Division.
(b) The application (Form LCC-1; 10-94) shall be lodged with the Loss Control Consultation Services Certification Unit and shall be accompanied by the required application fee.
(c) The application shall provide, be accompanied by, or be supplemented with the following items:
(1) Names under which the applicant is authorized to write workers' compensation insurance;
(2) Name and address of the insurer's employee directly responsible for administering the insurer's loss control consultation services;
(3) Proof of authorization from the California Department of Insurance to write workers' compensation insurance within the State of California;
(4) Documentation demonstrating the insurer's capability to deliver loss control consultation services as described by section 339.5(b)(2);
(5) A copy of the insurer's annual plan; and
(6) Any additional information requested by the Division, if reasonably necessary to evaluate the insurer's suitability for certification consistent with the requirements of this Article.
(d) Within 30 business days of receipt of an application for certification, the Division shall inform the applicant in writing either that the application is either complete and accepted for filing, or that the application is deficient and requires supplementation with additional information or documentation.
(1) An application shall be deemed complete if it is in compliance with the requirements of this section.
(2) A notice that the application is deficient shall explain what specific information or documentation is required to complete the application.
NOTE: If the volume of applications received results in the Division's inability to process the insurer's start-up application for certification in compliance within the 30-business-day period, the Division may extend the period for up to 120 days. Where such an extension is made by the Division, the insurer's period of provisional certification shall be deemed extended by an equal amount of time pursuant to section 339.2(b).
(e) Within 30 business days of the date of acceptance for filing of a completed application, the Division shall issue to the applicant:
(1) A Notice of Certification which includes the date of expiration of the certification and specifies any conditions which attach to retention of the certification; or
(2) A Notice of Denial of Certification, accompanied by a written explanation of the reasons for the denial.
Note: Authority cited: Sections 54 and 55, Labor Code; and section 11721, Insurance Code. Reference: Section 11721, Insurance Code.
s 339.8. Annual Collection of the Workers' Occupational Safety and Health Fund Fees.
(a) The Director designates the Commission on Health and Safety and Workers' Compensation to collect the fee required by Labor Code Section 6354.7 for the purpose of establishing and maintaining a workers' occupational safety and health training and education program and insurance loss control services coordinator.
(b) On or before April 1 of each year, each insurer subject to Labor Code Section 6354.5 shall pay to the Commission on Health and Safety and Workers' Compensation the workers' occupational safety and health training and education program fee required by Labor Code Section 6354.7. All fees collected pursuant to this section shall be deposited in the Workers' Occupational Safety and Health Education Fund, as provided in Section 6354.7 of the Labor Code.
(c) The annual fee required under this section shall be the greater of one hundred dollars ($100) or 0.0286 percent of paid workers' compensation indemnity as reported for the previous calendar year to the designated rating organization for the analysis required under subdivisions (b) and (c) of Section 11759.1 of the Insurance Code.
(d) Along with the payment required by this section, each insurer shall submit:
(1) A copy of the insurer's response to the annual "Call for California Workers' Compensation Experience" for the preceding calendar year.
(2) A summary report, on form CHSWC-1 "Workers' Occupational Safety and Health Fund Fee Report Form. (Rev.1/03)" The Commission shall provide a copy of the form CHSWC-1 to each insurer subject to Labor Code Section 6354.5 not later than February 1 of the year in which the fee is collected. The form CHSWC-1 shall include the following information:
(A) the name of the insurer submitting the report, including a list of all insurer names used to write workers' compensation insurance in California. For each insurer listed, a copy of each insurer's Certificate of Authority, issued by the California Department of Insurance, to write workers' compensation insurance shall be submitted with the report as an attachment;
(B) the name and contact information for a company officer to be contacted concerning the insurer's loss control services or the workers' occupational safety and health training and education program;
(C) the amount of paid indemnity as reported by the insurer for the previous calendar year to the Workers' Compensation Insurance Rating Bureau in response to the annual "Call for California Workers' Compensation Experience;" and,
(D) the amount of the fee being paid by the insurer. Note: Copies of the form CHSWC-1 may be obtained upon request from the Commission or downloaded from the Commission's web site at: http://www.dir.ca.gov/CHSWC/.
(e) A group of insurers under the same management, direction and control may elect to submit a single consolidated payment so long as the information required by the Commission is separately provided for each insurer.
Note: Authority cited: Section 6354.7, Labor Code; and section 11759.1, Insurance Code. Reference: Section 6354.5, Labor Code; and Section 11759.1, Insurance Code.
s 339.8.1. Workers' Occupational Safety and Health Fund Fee Report Form.
State of California Department of Industrial Relations Commission on Health and
Safety and Workers' Compensation WORKERS' OCCUPATIONAL SAFETY AND HEALTH FUND
FEE REPORT FORM
Note: Authority cited: Section 6354.7, Labor Code; and Section 11759.1, Insurance Code. Reference: Section 6354.5, Labor Code; and Section 11759.1, Insurance Code.
s 339.9. Denial of Certification or Recertification.
(a) The Division shall deny certification or recertification if the insurer does not satisfy the requirements of this article.
(b) An applicant denied certification may:
(1) Reapply by submitting a new application together with a new application fee; or
(2) Appeal for reconsideration to the Director.
(c) Any applicant who wishes to appeal a denial of certification shall lodge with the Division, within 10 working days of receipt of the Notice of Denial, a written notice of the applicant's intent to appeal.
(1) The Director shall hold a hearing, at the Division's headquarters offices or such other location as the Director may designate, within five working days of the appeal.
(2) At the hearing, the insurer shall have the burden of establishing qualification for certification.
(d) The Director shall issue a decision within 10 days of the hearing. The Director's decision shall be final. A final decision by the Director may not be appealed except as provided for by law.
(e) The Insurance Commissioner shall be notified of every final decision by the Director to deny certification.
Note: Authority cited: Sections 54 and 55, Labor Code; and section 11721, Insurance Code. Reference: Section 11721, Insurance Code.
s 339.10. Revocation, Suspension or Attachment of Conditions to Certification.
(a) The Division may at any time, upon a showing of good cause and after notice and an opportunity to be heard, revoke, suspend, or attach conditions to the retention of, any certification issued pursuant to this article. Good cause shall be deemed to exist if the Division establishes that the insurer has substantially failed to meet or comply with the requirements of this article.
(b) Notice of the Division's intent to take any adverse action with respect to a certification shall be in writing and served at least fifteen days in advance of the hearing. Service shall be deemed complete if notice of the hearing is sent by certified mail or hand delivered to the address shown on the application form. The notice shall specify the action intended to be taken by the Division and the reasons for the action in sufficient detail to allow the insurer to prepare for the hearing.
(c) The hearing shall be held at the Division's Headquarters offices, or at such other location as may be designated by the Director, and shall be conducted by the Chief or Deputy Chief of the Division.
(d) The insurer may appeal any adverse action to the Director in the same manner as provided for appeal of denial of certification by section 339.9(c) and (d) and the filing of an appeal shall stay the adverse action until the issuance of a final decision by the Director.
(e) The Insurance Commissioner shall be notified of every final decision by the Director to suspend or revoke certification.
Note: Authority cited: Sections 54 and 55, Labor Code; and section 11721, Insurance Code. Reference: Section 11721, Insurance Code.
s 339.11. Guidelines for Selecting Targeted Employers.
(a) Section 339.6(b)(2) requires the insurer's annual plan to include a methodology for selecting targeted employers and section 339.6(c) requires the annual plan to demonstrate that the insurer has reliably identified as targeted employers those of its insureds who have the greatest workers' compensation losses and most significant preventable health and safety hazards, and that the insurer's loss control consultation services will effectively serve the needs of targeted employers.
(b) The Division will review the annual plan to determine the effectiveness of the insurer's targeting methodology. Targeting methodologies may be different depending on the insurer and the type of insureds served, but shall utilize an effective combination of any of the following factors, or similar factors:
(1) Type, number, and rate of occupational injuries and illnesses;
(2) Number of workers' compensation claims, or injuries and illnesses, per payroll or premium dollar;
(3) Severity of workers' compensation claims, or injuries and illnesses, per payroll or premium dollar;
(4) Experience modification rating, or other ways of comparing the employer's loss experience to similar employers;
(5) Data from the insurers' previous evaluations of the employer; and
(6) Cal/OSHA citation history.
Exception: Other information, e.g., direct written premium per employer or the number of employees per employer, may be used as additional factors to be considered in selecting targeted employers. However, such information shall not be used in a manner which results in exclusion of those insureds who have the greatest workers' compensation losses and most significant preventable health and safety hazards.
Note: Authority cited: Sections 54 and 55, Labor Code; and section 11721, Insurance Code. Reference: Section 11721, Insurance Code.
s 340. Contents and Posting Requirements of CAL/OSHA Notice.
Every employer shall be required to post immediately upon receipt and to keep posted the CAL/OSHA Notice of Employee Protections and Obligations entitled "Safety and Health Protection on the Job," which is furnished pursuant to Labor Code Section 6328 by the Division of Occupational Safety and Health, Department of Industrial Relations, State of California, containing information on pertinent safety laws, regulations and certain rights of employees under the California Labor Code.
Each employer must post at least one Notice (CAL/OSHA Notice) in each establishment in a conspicuous place where notices to employees are customarily posted. "Establishment" as used in this regulation means a single physical location where business is conducted or where services or industrial operations are performed. Where employers are engaged in activities which are physically dispersed such as construction or transportation, the notice required by this section shall be posted at each location to which employees report each day. Where employees do not usually work at, or report to, a single establishment, such notice or notices shall be posted at the location or locations from which the employees operate to carry out their activities.
Each employer shall take steps to insure that such notices are not altered, defaced or covered by other material.
This notice shall contain the address and telephone number of the nearest Division of Occupational Safety and Health office, and shall inform the employees of their right to report any unsafe working conditions in their place of employment to the Division of Occupational Safety and Health and their right to request a safety inspection by the Division of Occupational Safety and Health for unsafe conditions.
The Notice shall also inform the employees that no employee shall be laid off or discharged for refusing to perform work in the performance of which the provisions of the California Labor Code, any occupational safety or health standard or any safety order of the Division will be violated, where such violation would create a real and apparent hazard to the employee or his fellow employees.
The Notice shall contain the information that each citation issued under Section 6317 of the California Labor Code, Special Order or Order to Take Special Action issued under Section 6308 or a copy or copies thereof shall be prominently displayed at or near each place a violation referred to in the citation or order occurred.
The Notice shall inform employees that employers who use any substance listed as a hazardous substance in Section 339 of Title 8 of the California Administrative Code must provide employees with information on the contents of material safety data sheets (MSDS) or equivalent information about the substance which trains employees to use the substance safely. That the employer is required to make available on a timely and reasonable basis a MSDS on each hazardous substance in the workplace upon request of an employee, collective bargaining representative, or an employee's physician. Further, that employees have the right to see and copy the medical record and other records of employee exposure to potentially toxic materials or harmful physical agents.
The Notice shall inform the employees that the employer shall provide an opportunity for employees or their representatives to observe monitoring or measuring of employee exposure to hazards conducted pursuant to standards promulgated under California Labor Code Section 142.3, and shall allow the employee or his representative access to accurate records of employee exposures to potentially toxic materials or harmful physical agents.
The Notice shall contain a statement that every employer and every employee shall comply with occupational safety and health standards and all rules, regulations and orders pursuant to Division 5 of the California Labor Code which are applicable to his or her own actions and conduct.
Failure of any employer to post the CAL/OSHA Notice entitled "Safety and Health Protection on the Job" as required by this regulation may result in imposition of a fine of up to $1,000 upon the employer for each violation as set forth in Labor Code Section 6431.
Note: Authority cited: Sections 60.5, 6308, 6318 and 6328, Labor Code. Reference: Sections 6318, 6328 and 6408, Labor Code.
s 340.1. Rights of Employees to Observe Monitoring or Measuring.
(a) Whenever an employer is required to conduct tests or to engage in monitoring or measuring, to determine employee exposure to hazards by specific standards promulgated under Labor Code Section 142.3, the employer shall notify the affected employee or employees or their representative, prior to commencement of the date, time and place of the testing, monitoring or measuring of employee exposure. The employer shall provide the affected employee or employees, or their representatives with the opportunity to observe the testing, sampling, monitoring or measuring undertaken pursuant to such standards.
(b) The affected employee, employees or their representatives shall be allowed access to the records and reports of the results of the testing monitoring or measuring when carried out under the requirements of a standard promulgated under Labor Code Section 142.3.
s 340.2. Notification to Employee of Exposure Required.
Whenever any employee has been or is being exposed to toxic materials or harmful physical agents in concentrations or at levels exceeding those prescribed by applicable standard, order, or special order, the employer of the affected employee must promptly notify any employee so affected in writing of the fact that the employee has been exposed, and of the corrective action being taken by the employer.
s 340.3. Employee Access to Accurate Records.
s 340.4. Declaration of Abatement, Other Documentation, Employee Notification and Posting Requirements.
(a) Scope and application. This section applies to employers who receive a citation for a violation of Title 8 of the California Code of Regulations.
(b) Definitions.
(1) Abatement means action by an employer to comply with a cited standard or regulation or to eliminate a recognized hazard identified by the Division during an inspection.
(2) Abatement date means:
(i) For an uncontested citation item, the later of:
(A) The date in the citation for abatement of the violation;
(B) The date otherwise approved by the Division as the result of an informal conference; or
(C) The date established in a citation by an informal settlement agreement.
(ii) For a contested citation item for which the Occupational Safety and Health Appeals Board (OSHAB) has issued a final order affirming the violation, the later of:
(A) The date identified in the final order for abatement; or
(B) The date computed by adding the period allowed in the citation for abatement to the final order date; or
(C) The date established by a formal settlement agreement.
(3) Affected employees means those employees who are exposed to the hazard(s) identified as violation(s) in a citation.
(4) Final order date means:
(i) For an uncontested citation item, the fifteenth working day after the employer's receipt of the citation;
(ii) For a contested citation item:
(A) The thirty-fifth day after the date on which a decision or order of an administrative law judge has been issued, unless a Petition for Reconsideration or Order of Reconsideration has been filed with or by OSHAB; or
(B) Where a Petition for Reconsideration or Order of Reconsideration has been filed, the thirty-fifth day after the date on which OSHAB issues its decision or order disposing of the matter; or
(C) The date on which the superior court issues a decision affirming the violation in a case in which a final order of OSHAB has been stayed.
(5) Movable equipment means a hand-held or non-hand-held machine or device, powered or unpowered, that is used to do work and is moved within or between worksites.
(c) Abatement certification.
(1) Within 10 calendar days after the abatement date, the employer must certify to the Division that each cited violation has been abated, except as provided in paragraph (c)(2) of this section.
(2) The employer is not required to certify abatement if the OSHA Compliance Officer, during the on-site portion of the inspection:
(i) Observes, within 24 hours after a violation is identified, that abatement has occurred; and
(ii) Notes in the citation that abatement has occurred.
(3) The employer's certification that abatement is complete must include, for each cited violation, in addition to the information required by paragraph (h) of this section, the date and method of abatement and a statement that affected employees and their representatives have been informed of the abatement.
(4) For serious violations the certification of abatement must be submitted under penalty of perjury as required pursuant to Labor Code section 6320(b). Note: See Appendix A for sample content and form of Abatement Certification Letter.
(d) Abatement documentation.
(1) The employer must submit to the Division, along with the information on abatement certification required by paragraph (c)(3) of this section, documents demonstrating that abatement is complete for each willful or repeat violation and for any serious violation for which the Division indicates in the citation that such abatement documentation is required.
(2) Documents demonstrating that abatement is complete may include, but are not limited to, evidence of the purchase or repair of equipment, photographic or video evidence of abatement, or other written records.
(e) Abatement plans.
(1) The Division may require an employer to submit an abatement plan for each cited violation (except non-serious violations) when the time permitted for abatement is more than 90 calendar days. If an abatement plan is required, the citation must so dictate.
(2) The employer must submit an abatement plan for each cited violation within 25 calendar days from the final order date when the citation indicates that such a plan is required. The abatement plan must identify the violation and the steps to be taken to achieve abatement, including a schedule for completing abatement and, where necessary, how employees will be protected from exposure to the violative condition in the interim until abatement is complete. N ote: See Appendix B for sample content and form of Abatement Plan.
(f) Progress reports.
(1) An employer who is required to submit an abatement plan may also be required to submit periodic progress reports for each cited violation. The citation must indicate:
(i) That periodic progress reports are required and the citation items for which they are required;
(ii) The date on which an initial progress report must be submitted, which may be no sooner than 30 calendar days after submission of an abatement plan;
(iii) Whether additional progress reports are required; and
(iv) The date(s) on which additional progress reports must be submitted.
(2) For each violation, the progress report must identify, as briefly as possible, the action taken to achieve abatement and the date the action was taken. Note: See Appendix B for sample content and form of Progress Report.
(g) Employee notification.
(1) The employer must inform affected employees and their representative(s) about abatement activities covered by this section by posting a copy of each document submitted to the Division, or a summary of the document(s), near the place where the violation occurred.
(2) Where such posting does not effectively inform employees and their representatives about abatement activities (for example, for employers who have mobile work operations), the employer must:
(i) Post each document or a summary of the document(s) in a location where it will be readily observable by affected employees and their representatives; or
(ii) Take other steps to communicate fully to affected employees and their representatives about abatement activities.
(3) The employer must inform employees and their representatives of their right to examine and copy all abatement documents submitted to the Division.
(i) An employee or an employee representative must submit a request to examine and copy abatement documents within 3 working days of receiving notice that the documents have been submitted.
(ii) The employer must comply with an employee's or employee representative's request to examine and copy abatement documents within 5 working days of receiving the request.
(4) The employer must ensure that notice to employees and employee representatives is provided at the same time or before the information is provided to the Division and that abatement documents are:
(i) Not altered, defaced, or covered by other material; and
(ii) Remain posted for three working days after submission to the Division.
(h) Transmitting abatement documents.
(1) The employer must include, in each submission required by this section, the following information:
(i) The employer's name and address;
(ii) The inspection number to which the submission relates;
(iii) The citation and item numbers to which the submission relates;
(iv) A statement that the information submitted is accurate; and
(v) The signature of the employer and the employer's authorized representative.
(vi) For serious violations the documentation must be submitted under penalty of perjury as required pursuant to Labor Code section 6320(b).
(2) The date of postmark is the date of submission for mailed documents. For documents transmitted by other means, the date the Division receives the document is date of submission.
(i) Moveable equipment.
(1) For serious, repeat, and willful violations involving movable equipment, the employer must attach a warning tag or a copy of the citation to the operating controls or to the cited component of equipment that is moved within the worksite or between worksites. Note: Attaching a copy of the citation to the equipment will satisfy the tagging requirement of paragraph (i)(1) of this section as well as the posting requirements of section 332.4 of Title 8 of the California Code of Regulations.
(2) If the employer attaches a warning tag, in lieu of the citation, it must warn employees about the nature of the violation involving the equipment and identify the location of the citation issued. Note: See Appendix C for sample form and content of a Warning Tag.
(3) If the violation has not already been abated, a warning tag or copy of the citation must be attached to the equipment:
(i) For hand-held equipment, immediately after the employer receives the citation; or
(ii) For non-hand-held equipment, prior to moving the equipment within or between worksites.
(4) The employer must assure that the tag or copy of the citation attached to movable equipment is not altered, defaced, or covered by other material.
(5) The employer must assure that the tag or copy of the citation attached to movable equipment remains attached until:
(i) The violation has been abated and all abatement verification documents required by this regulation have been submitted to the Division;
(ii) The cited equipment has been permanently removed from service or is no longer within the employer's control; or
(iii) OSHAB issues a final order vacating the citation; or
(iv) As otherwise directed by the Division. Note: Appendices A through C provide information and non-mandatory guidelines to assist employers and employees in complying with the appropriate requirements of this section.
NOTE: Authority cited: Sections 60.5 and 6308, Labor Code. Reference: Section 6320, Labor Code; and Title 29, Section 1903.19, Code of Federal Regulations.
Appendix A to Section 340.4 -Sample Abatement - Certification Letter (Non-Mandatory)
(Name), District Manager
Division of Occupational Safety and Health
Address of the District Office (on the citation)
[Company's Name]
[Company's Address]
The hazard referenced in Inspection Number [insert 9-digit #] for violation identified as:
Citation [insert #] and item [insert #] was corrected on [insert date] by: ________________________________.
Citation [insert #] and item [insert #] was corrected on [insert date] by: _____________________.
(NOTE: Follow sample format for each citation or item) I attest that the information contained in this document is accurate. _________________________
Signature ______________________________________________________
Typed or Printed Name __________________________________________
Note: For serious violations the submittal must be made under penalty of perjury. For Example:
"I declare under penalty of perjury the foregoing is true and correct.
Executed this ________ day of (month) in the city of _________________, California. __________"
(Signature) ____________________________________________________
Appendix B to Section 1903.19 -Sample Abatement Plan or Progress Report (Non-Mandatory)
(Name), District Manager
Division of Occupational Safety and Health
Address of the District Office (on the citation)
[Company's Name]
[Company's Address]
Check one:
Abatement Plan [ ]
Progress Report [ ]
Inspection Number
Page __________ of __________
Citation Number(s) [FNa1] _______________________________________
Item Numbers ___________________________________________________
Proposed
Completion Date (for Completion Date (for
Action abatement plans only) progress reports only)
1._____________________________________________________________________________
2._____________________________________________________________________________
Date required for final abatement:
I attest that the information contained in this document is accurate.
(NOTE: For serious violations the document must be submitted under penalty of
perjury. See Appendix A, above)
Signature ______________________________________________________
Typed or Printed Name __________________________________________
Name of primary point of contact for questions: __________
[optional]
Telephone Number _______________________________________________
[FNa1] Abatement plans or progress reports for more than one citation item may be combined in a single abatement plan or progress report if the abatement actions, proposed completion dates, and actual completion dates (for progress reports only) are the same for each of the citation items.
Appendix C to Section 340.4 -Sample Warning Tag (Non-Mandatory)
WARNING:
EQUIPMENT HAZARD CITED BY CAL/OSHA
EQUIPMENT CITED:
_____________________
HAZARD CITED:
_____________________
FOR DETAILED INFORMATION SEE CAL/OSHA CITATION POSTED AT:
_____________________
s 340.40. Scope and Application.
(a) These general rules of practice and procedure of the Division of Occupational Safety and Health (hereinafter "the Division") are applicable to proceedings involving the denial, suspension or revocation of any license, permit, certification, registration or other authorization issued by the Division, and proceedings involving an Order Prohibiting Use (for purposes of this article, hereinafter referred to as "OPU") issued pursuant to Labor Code section 6325.
(b) These general rules of practice and procedure may supplement, but shall not replace, other codified administrative notice and appeal procedures. In case of conflict with codified notice and appeal procedures, the more-specific procedures shall apply.
Note: Authority cited: Sections 60.5 and 6308, Labor Code; and Section 11400.20, Government Code. Reference: Sections 60.5 and 6308, Labor Code; and Section 11400.20, Government Code.
s 340.41. Notification of Division Proceedings for Denial, Suspension or Revocation.
(a) When, after review, examination, investigation or inspection, the Division determines that good cause exists to deny, suspend or revoke any permit, license, certification, registration, or other authorization issued by the Division, written notification shall be provided to the person or entity against whom the Division intends to take such action.
(b) The notification shall cite the statute or regulation authorizing the action taken by the Division, and shall state the grounds constituting good cause for the denial. suspension, revocation or other action proposed by the Division.
(c) The notification may be served personally, by facsimile, by overnight delivery, or by certified mail. The provisions of this article are subject to Section 1013 of the California Code of Civil Procedure.
(d) The Director of the Department of Industrial Relations (for purposes of this article, the Director of the Department of Industrial Relations shall hereinafter be referred to as "the Director") or the Division shall make a copy of these regulations available to appellants, and shall advise appellants that the appeal proceedings shall not be subject to the provisions of Chapter 5 (commencing with Section 11500) of Part 1, Division 3, of Title 2 of the California Government Code.
Note: Authority cited: Sections 60.5 and 6308, Labor Code; and Section 11400.20, Government Code. Reference: Sections 60.5 and 6308, Labor Code; and Section 11400.20, Government Code.
s 340.42. Request for Hearing.
(a) Within five working days after receipt of the Division's denial of an application for any license, permit, certification, registration or other authorization, or the suspension or revocation of a permit, license, certification, registration or other authorization, or the issuance of an Order Prohibiting Use, the affected applicant or employer may request a hearing to review the validity of the Division's action.
(b) The request for hearing must be in writing and must set forth specific reasons why the Division's action was improper. An appellant's failure to mail or otherwise deliver a request for hearing within five working days of receipt of notification of the action will result in the Division's action being considered final and not subject to review, except where review is otherwise provided by law.
(1) For the denial of an application for a permit, license, certification, registration or other authorization, the written request for hearing shall be mailed or otherwise delivered to the headquarters office of the Director.
(2) For the suspension or revocation of a permit, license, certification, registration, or other authorization, the written request for hearing shall be mailed or otherwise delivered to the headquarters of the Division.
(3) For the issuance of an Order Prohibiting Use, the request for hearing shall be mailed or otherwise delivered to the District Manager of the district office which issued the Order Prohibiting Use.
Note: Authority cited: Sections 60.5 and 6308, Labor Code; and Section 11400.20, Government Code. Reference: Sections 60.5 and 6308, Labor Code; and Section 11400.20, Government Code.
s 340.43. Designation of Presiding Officer and Notification of Hearing.
(a) Upon receipt of a request for an appeal hearing regarding the Division's denial of an application for a permit, license, certification, registration, or other authorization, the Director or the Director's Chief Counsel shall designate a Presiding Officer to conduct the hearing. Upon receipt of a request for hearing regarding the suspension or revocation of a permit, license, certification, registration, or other authorization, the Chief of the Division shall designate a Presiding Officer to conduct the hearing. The Presiding Officer may be a Deputy Chief, Regional Manager, or other designated representative. For hearings regarding the issuance of Orders Prohibiting Use, the District Manager shall serve as Presiding Officer.
(b) The Department or Division shall notify the appellant of the date, time and location of the hearing, and of the name of the Presiding Officer. The date and time of the hearing shall be subject to the specific provisions of the statute or regulation, if any, authorizing the action. Where no statute or regulation imposes specific time limitations, a hearing shall be set so as to provide sufficient time for preparation and attendance at the hearing, but in no event less than five working days following the receipt of a request for hearing, unless appellant agrees to or requests an earlier hearing. Hearings regarding the issuance of an OPU shall be held within 24 hours following receipt of the appellant's request for a hearing, unless appellant agrees to or requests a later hearing.
(c) The Presiding Officer may change the date, time and location of the hearing for good cause upon his or her own motion or upon the written motion of either party at any time prior to the hearing.
(d) The appellant must immediately notify all affected employees, former employees, and employee representatives, if any, of the date, time and location of the hearing along with a description of the purpose for the hearing, by posting the notification of hearing or otherwise providing written notice. The notification of hearing must remain posted in a conspicuous place for at least three working days or until the date of the hearing, whichever is less.
(e) The Division or Department may serve the notification of hearing, as required under subsection (b), personally, by facsimile or by overnight delivery.
Note: Authority cited: Sections 60.5 and 6308, Labor Code; and Section 11400.20, Government Code. Reference: Sections 60.5, 6308 and 6327, Labor Code; and Section 11400.20, Government Code.
s 340.44. Conduct of Hearing.
(a) The Presiding Officer shall be responsible for receiving evidence both from Division representatives and the appellant and shall issue a decision as set forth in this article. Parties shall have the opportunity to present relevant documentary or other evidence through the presentation of direct testimony, the cross-examination of witnesses, and the rebuttal of any evidence presented during hearing. The Presiding Officer may also examine witnesses or request the presentation of additional relevant evidence.
(1) Upon motion, the Presiding Officer may exclude witnesses from the hearing room. Each party may designate one representative who may stay in the hearing room, even if the representative will also serve as a witness.
(2) A party may appear in person or through a representative who is not required to be an attorney.
(3) Designated employee representatives may make written request to participate in the hearing if it is established that such participation will be relevant to any issues presented at the hearing.
(4) The Presiding Officer shall receive evidence under oath or affirmation under penalty of perjury. The hearing shall be tape-recorded, unless the parties agree to some other method of recording the hearing. If the parties do not agree to an alternative method of recording, the Presiding Officer shall make the official record of the hearing by tape recording, and may allow each party to make and pay for an additional record if, in the Presiding Officer's opinion, the making of the additional record or records would not unduly disrupt the proceedings.
(b) The hearing shall not be subject to the technical rules relating to evidence or witnesses. However, only relevant evidence of the sort responsible persons are accustomed to rely upon in conducting serious affairs shall be admitted and relied upon in rendering a decision. Hearsay evidence is admissible but, if objected to, may not be solely relied upon without other supporting evidence unless the hearsay would be admissible over objection in a civil proceeding.
(c) Any hearing conducted pursuant to this article shall be open to the public as required pursuant to Government Code section 11425.20.
(d) During all stages of a hearing, the Presiding Officer and all parties to the hearing shall be subject to the provisions of Article 7 (commencing with section 11430.10), of Chapter 4.5 of Part 1, Division 3, Title 2 of the Government Code regarding ex parte communication.
(e) The matter shall be deemed submitted at the conclusion of the hearing unless some other submission date is agreed to between the parties or otherwise designated by the Presiding Officer.
(f) The Presiding Officer shall, on behalf of the Director or Division, issue and serve a written decision on the parties no later than thirty (30) calendar days after submission of the matter for decision, except as follows.
(1) The time for issuance and service of the decision may be extended by the Presiding Officer for good cause.
(2) For an Order Prohibiting Use, a decision concerning the validity of the order shall be made as soon as possible, but not more than two working days, after the conclusion of the hearing.
(g) Decisions shall be in writing and shall include findings of fact and conclusions supporting the decision. However, at his or her discretion, a Presiding Office may issue a preliminary decision without setting forth findings of fact and conclusions supporting the decision, as long as a complete decision is issued within the time period provided in this section.
(h) Any right to request review of the decision shall be governed by the specific regulation or statute authorizing the action taken by the Division.
Note: Authority cited: Sections 60.5 and 6308, Labor Code; and Section 11400.20, Government Code. Reference: Sections 60.5, 6308 and 6308.5, Labor Code; and Section 11400.20, Government Code.
s 340.45. Presiding Officer - Grounds for Disqualification.
Any Presiding Officer may be disqualified for any ground set forth in Government Code sections 11425.30 and 11425.40. A request for disqualification must be in writing to the Director and shall specifically detail the grounds upon which disqualification is sought and the factual basis for the request. The request shall be filed with the Director pursuant to the provisions of section 340.46 of this Article.
Note: Authority cited: Sections 60.5 and 6308, Labor Code; and Section 11400.20, Government Code. Reference: Sections 60.5 and 6308, Labor Code; and Section 11400.20, Government Code.
s 340.46. Service of Process.
(a) Unless otherwise required, service may be made by personal delivery or by depositing the documents in a post office, mailbox or mail chute, or other like facility regularly maintained by the United States Postal Service, sealed, properly addressed, with first-class postage prepaid.
(b) Service is complete at the time of the personal delivery or mailing.
(c) Proof of service shall be filed with the document and may be made by any of the following means:
(1) Affidavit or declaration of service by personal delivery or mail;
(2) Written statement endorsed upon the document served and signed by the party making the statement; or
(3) Letter of transmittal.
(d) Facsimile (fax) machines may be used to serve and file documents under the following conditions:
(1) The length of the document to be filed and/or served shall be no more than twelve (12) pages including cover page and attachments.
(2) A copy sheet shall be attached containing the number of pages transmitted, the fax number of the sender, the sender's telephone number, and the name of the contact person.
(3) If a document is filed by fax, all parties shall be served in the same manner or by guaranteed overnight delivery. The fax transmission shall include a proof of service indicating the method of service on each party, and
(4) No later than 24 hours after transmission, the sending party shall file and serve on all parties the original of any faxed document as set forth in this section.
(e) For facsimile service and filing of documents, a document is considered received on the following working day if transmission begins later than 5:00 p.m. Pacific Time.
Note: Authority cited: Sections 60.5 and 6308, Labor Code; and Section 11400.20, Government Code. Reference: Sections 60.5 and 6308, Labor Code; and Section 11400.20, Government Code.
s 340.47. Discovery.
(a) Upon written request made to the other party prior to hearing, a party to the proceeding is entitled to obtain the names and addresses of witnesses to the extent known to the other party, including, but not limited to, those intended to be called to testify at the hearing. Nothing in this section requires the disclosure of the identity of a person who submitted a complaint regarding the unsafe nature of an employment or place of employment unless the complainant requests otherwise.
(b) A party is entitled upon written request to inspect and make copies of any of the following materials in the possession or custody or under the control of the other party:
(1) Any statements of parties or witnesses relating to the subject matter of the proceeding;
(2) All writings or things which the party then proposes to offer in evidence;
(3) Any other writing or thing which is relevant and which would be admissible in evidence;
(4) Inspection and investigative reports made by, or on behalf of, the Division or other party pertaining to the subject matter of the proceeding, to the extent that such reports: contain the names and addresses of witnesses or persons having personal knowledge of the acts, omissions or events which are the basis of the proceeding; reflect matters perceived by the Division or other party in the course of its inspection, investigation or survey; or contain or include by attachment any statement or writing described in this section.
(c) The parties shall arrange for a mutually-agreeable time for exchange of requested materials and information but in no event later than 24 hours prior to the time set for hearing.
(d) The Presiding Officer may, upon written request by either party, make provision for timely completion of discovery.
Note: Authority cited: Sections 60.5 and 6308, Labor Code; and Section 11400.20, Government Code. Reference: Sections 60.5, 6308 and 6309, Labor Code; and Section 11400.20, Government Code.
s 340.48. Subpoenas and Subpoenas Duces Tecum - Witness Fees.
(a) Before the hearing has commenced, the Division or any party may issue a subpoena or subpoena duces tecum requiring the attendance of a person or the production of documents or things at the hearing.
(b) Any subpoena or subpoena duces tecum issued pursuant to subsection (a) of this section extends to all parts of the state and shall be served in accordance with the provisions of sections 1985.3, 1987, 1987.5 and 1988 of the Code of Civil Procedure, except for the provisions governing the time for issuance of subpoenas and subpoenas duces tecum. Service of a subpoena or subpoena duces tecum is made by delivering a copy to the witness.
(c) All witnesses appearing pursuant to subpoena, other than the parties, or their representatives directly associated with the action, shall be entitled to receive the following fees and mileage, payable in advance:
(1) Witness fee for each day's actual attendance of thirty-five dollars ($35.00);
(2) Mileage actually traveled, both ways, of twenty cents ($.20) a mile;
(3) Per diem compensation of three dollars ($3.00) for expenses of subsistence for each day of actual attendance and for each day necessarily occupied in traveling to and from the hearing, if the hearing is at a point so far removed from a residence as to reasonably preclude return thereto from day to day;
(d) Fees, mileage and expenses of subsistence shall be paid by the party at whose request the witness is subpoenaed.
(e) A party who subpoenas a peace officer as listed at Government Code section 68097.1 or individuals designated by Government Code 68097.2 shall reimburse the public entity for the full cost of the public entity incurred in paying the officer his or her salary or other compensation and traveling expenses for each day that such officer is required to remain in attendance.
Note: Authority cited: Sections 60.5 and 6308, Labor Code; and Section 11400.20, Government Code. Reference: Sections 60.5 and 6308, Labor Code; and Section 11400.20, Government Code.
s 340.49. Official Notice.
(a) In reaching a decision, a Presiding Officer may take official notice either before or after submissionof the proceeding for a decision, of any generally accepted technical or scientific matter within the field of occupational safely and health, and determinations, rulings, orders, findings and decisions, required by law to be made by the Division, Occupational Safety and Health Appeals Board or Occupational Safety and Health Standards Board. (continued)