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.
The Board’s rule was developed in order to make the process easier for employers not familiar with the appeals process or not represented by counsel. However, as it has become more common for employers to appeal alleged violations and engage in lengthy and complex discovery, the Board appears to have shifted its rules of practice to a more traditional litigation format.
Other less significant proposed changes would modify the way appeals are docketed. For example, the Board is proposing to require that DOSH, rather than the employer, provide a copy of the appealed citations within 15 days of receipt. After DOSH provides a copy of the appealed citations to the Board, the appeals would be “perfected” (currently, the Board does not distinguish between docketed and perfected appeals). At this point, the Board would be required to advise the parties that the appeal was perfected and discovery may commence. During expedited proceedings, a telephone status conference would be held within 30 days of perfection, rather than within 30 days of docketing, potentially giving employers up to 15 additional days to prepare for the status conference during these types of proceedings.
These changes come as industry has experienced increased enforcement by DOSH, particularly in penalties, in recent years. For example, according to the annual DOSH reports to the California legislature, the collection of fines more than doubled in two years, from $12.6 million in 2016 to $28 million in 2018. Citations increased during this two-year period from approximately 8,500 to 10,000. The Board has simultaneously undertaken efforts to hasten its resolution rate for appeals and reduce its docket, with an increase of more than one-third in the total number of cases resolved from 2016 to 2018.
The Board is accepting public comments on the proposed revisions until 5 p.m. on August 22, 2019. On the same day, the Board will hold two public hearings on the rule-making, one in northern California and one in southern California.
If you have any questions about submitting written comments or testimony at a public hearing, or about changes in the law relating to DOSH appeals, please let us know.
Client Alert 2019-179
