The Director of the Department of Industrial Relations (DIR) will convene an advisory committee to solicit input on proposed amendments to regulations concerning Enterprise-wide and Egregious violations of employee safety and health requirements. Labor Code sections 6317 and 6317.8, which were amended and added to the Labor Code in 2021 after the signing of Senate Bill 606 (SB 606), require, among other things, that the Division of Occupational Safety and Health (Division) issue citations for “Enterprise-wide” and “Egregious” violations. While these new classifications of violations are defined in Labor Code sections 6317 and 6317.8, regulatory action is necessary to incorporate these classifications into the existing framework for citation classification and penalty calculation, and to provide definitions and procedures that will allow employers to comply with the statutes' requirements.

Section 18 of the Federal Occupational Safety and Health Act of 1970 authorizes states to administer their own occupational safety and health programs. The Federal Occupational Safety and Health Administration (FedOSHA) approves and monitors these “State Plans” and provides up to 50 percent of an approved State Plan's operating costs. To acquire and maintain FedOSHA approval, states must demonstrate that their enforcement and occupational safety and health program is “at least as effective as” the federal counterpart. California is among the 29 states and other U.S. jurisdictions that have established State Plans for occupational safety and health. The Division, an agency within DIR, administers California's occupational safety and health program. The proposed amendments also are necessary to ensure that California's enforcement program remains at least as effective as the federal program.

Labor Code section 6317 is similar, though not identical, to FedOSHA's policy governing Corporate-Wide Settlement Agreements. Under Labor Code section 6317, Enterprise-wide violations occur when an employer has more than one worksite and either (1) the employer has a written policy and procedure that violates safety and health standards, or (2) there is evidence of a pattern or practice of the same violation(s) at more than one of the employer's worksites. (Lab. Code, § 6317(b)(1).) The proposed regulatory text for Enterprise-wide violations sets forth the definition of Enterprise-wide violations pursuant to section 6317 and adds Enterprise-wide violations to the regulations regarding classification and calculation of penalties for alleged violations.

Labor Code section 6317.8 largely mirrors FedOSHA's violation-by-violation penalties procedure (also known as FedOSHA's egregious procedure), which is aimed at deterring egregious violations by increasing penalties on a per exposure instance basis. Under FedOSHA's egregious procedure, each instance of noncompliance is considered a separate violation, and each instance will accordingly accrue a separate penalty. (OSHA Instruction, CPL 02-00-080, Handling of Cases to be Proposed for Violation-By-Violation Penalties, Oct. 21, 1990.)

Under Labor Code section 6317.8, an Egregious violation is defined as a Willful violation where one or more of the enumerated criteria in Labor Code section 6317.8 also is present. The proposed regulatory text for Egregious violations clarifies, interprets, and defines the statutory language of Labor Code section 6317.8. The proposed regulations further set forth how penalties will be calculated for each instance of an employee exposed to an Egregious violation.

Lastly, the proposed amendments also include changes to subsections of Title 8, sections 334-336, that do not stem from SB 606. In this regard, the proposed amendments (1) correct section 335(d) to reflect that the look-back period for determining how (if at all) a penalty should be adjusted to account for an employer's history is five years, not three, so that it is consistent with the look-back period for Repeat violations; and (2) correct section 336(d)(5) by deleting a reference to a subsection that was stricken in 2017.

The advisory committee will consist of employers, employer representatives, worker representatives, trade associations, labor organizations, community groups, and public agencies. Members of the public who are not on the committee may observe the meeting and provide written comments at SB606RulemakingComments@dir.ca.gov. Please include in your comments the specific edits you are proposing.

Meeting Documents

• Draft text with changes in underline strikeout format
• Meeting agenda with link to videoconference and dial-in information - TBA
• Advisory committee roster and schedule - TBA
• Advisory committee meeting video/audio stream - TBA

Background Information

• Senate Bill 606 (Gonzalez, 2021)
• Labor Code § 6317, Jurisdiction and Duties (Cal/OSHA Citations)
• Labor Code § 6317.8, Jurisdiction and Duties (Egregious Violations)
• 8 CCR § 332.4, Posting of Citation, Special Order, Order to Take Special Action, and Notice of No Violation After Investigation
• 8 CCR § 334, Classification of Violations and Definitions
• 8 CCR § 335, Factors Considered in Assessing Civil Penalties
• 8 CCR § 336, Assessment of Civil Penalties
• Federal OSHA Guidelines for Administrating Corporate-Wide Settlement Agreements
• Federal OSHA Directive on Handling of Cases to Be Proposed for Violation-By-Violation Penalties
• Federal OSHA Field Operations Manual – Chapter 6: Penalties and Debt Collection