Reed Smith Client Alerts

The California Occupational Safety and Health Appeals Board (Board) has proposed to revise its rules of practice and procedure in a number of ways. Most significantly, the Board seeks to remove the requirement that the California Division of Occupational Safety and Health (DOSH) automatically produce its inspection file and other relevant documents within 30 days. Instead, appellant employers will be required to seek this information through the ordinary course of discovery. This change, which the Board is accepting comments on until August 22, 2019, comes at a time when the California Department of Industrial Relations is seeking to enhance workplace safety enforcement efforts and simultaneously streamline its appeals process to reduce a backlog of the Board’s dockets.

Autoren: Benjamin H. Patton Todd O. Maiden Mary M. Balaster Jessica I. Wilson

Surveyor inspect the bulk head of commercial cargo ship in floating dry dock, recondition of overhaul repairing and painting, sand blasting in dry dock yard

The Board is soliciting public comments on proposed revisions to its rules of practice and procedure. The three-member Board hears appeals from public- and private-sector employers regarding citations issued by DOSH and is authorized to adopt procedural rules related to these appeals. If adopted, the proposals would primarily affect the way appeals are docketed and discovery is conducted during proceedings before the Board.

Perhaps the most significant potential change for employers is the proposed repeal of title 8, section 372.9, which requires DOSH to provide employers with copies of all documents and evidence related to appeals within 30 days of receipt of the appeal. Instead, DOSH would only be required to produce discovery after receiving a written discovery request from the employer. The repeal would also eliminate DOSH’s continuing obligation to update the employer with any newly discovered, relevant material. Also noteworthy is the proposed requirement that members of the California state bar issue their own subpoenas and subpoenas duces tecum, rather than submitting subpoena requests to the Board. The Board, however, would still process subpoena requests for parties not represented by counsel, and the time frame for doing so would be extended to five days. Taken together, these proposals would significantly alter the way discovery is conducted during appeals before the Board, and employers unaware of the changes may not timely receive documents and information critical to the success of their appeal. The proposed changes come on the heels of several high-profile appeals in which DOSH resisted providing appellant employers with documentation from the agency’s inspection file during discovery, including on the basis that this information was protected by the attorney-client privilege.

Notably, the change brings Board practice into line with the federal Occupational Safety and Health Review Commission (OSHRC) rules, which simply provide that any party may obtain discovery without leave of the OSHRC in one of the prescribed forms pursuant to 29 C.F.R. section 2200.52.