AB 2321: Occupational safety and health: investigations.

6314.

(a) To make an investigation or inspection, the chief of the division and all qualified divisional inspectors and investigators authorized by the chief shall, upon presenting appropriate credentials to the employer, have free access to any place of employment to investigate and inspect during regular working hours, and at other reasonable times when necessary for the protection of safety and health, and within reasonable limits and in a reasonable manner. The chief or their authorized representative may, during the course of any investigation or inspection, obtain any statistics, information, or any physical materials in the possession of the employer that are directly related to the purpose of the investigation or inspection, conduct any tests necessary to the investigation or inspection, and take photographs. Photographs taken by the division during the course of any investigation or inspection shall be considered to be confidential information pursuant to the provisions of Section 6322, and shall not be deemed to be public records for purposes of the California Public Records Act.

(b) If permission to investigate or inspect the place of employment is refused, or the facts or circumstances reasonably justify the failure to seek permission, the chief or their authorized representative may obtain an inspection warrant pursuant to the provisions of Title 13 (commencing with Section 1822.50) of Part 3 of the Code of Civil Procedure. Cause for the issuance of a warrant shall be deemed to exist if there has been an industrial accident, injury, or illness reported, if any complaint that violations of occupational safety and health standards exist at the place of employment has been received by the division, or if the place of employment to be inspected has been chosen on the basis of specific neutral criteria contained in a general administrative plan for the enforcement of this division.

(c) The chief and their authorized representatives may issue subpoenas to compel the attendance of witnesses and the production of books, papers, records, and physical materials, administer oaths, examine witnesses under oath, take verification or proof of written materials, and take depositions and affidavits for the purpose of carrying out the duties of the division.

(d) In the course of any investigation or inspection of an employer or place of employment by an authorized representative of the division, a representative of the employer and a representative authorized by their employees shall have an opportunity to accompany the authorized representative of the division on the tour of inspection. Any employee or employer, or their authorized representatives, shall have the right to discuss safety and health violations or safety and health problems with the inspector privately during the course of an investigation or inspection. Where there is no authorized employee representative, the chief or their authorized representatives shall consult with a reasonable number of employees concerning matters of health and safety of the place of employment.

(e) During any investigation of an industrial accident or occupational illness conducted by the division pursuant to the provisions of Section 6313, the chief or their authorized representative may issue an order to preserve physical materials or the accident site as they were at the time the accident or illness occurred if, in the opinion of the division, it is necessary to do so in order to determine the cause or causes of the accident or illness, and the evidence is in potential danger of being removed, altered, or tampered with. Under these circumstances, the division shall issue that order in a manner that will avoid, to the extent possible, any interference with normal business operations.

(1) A conspicuous notice that an order has been issued shall be prepared by the division and shall be posted by the employer in the area or on the article to be preserved. The order shall be limited to the immediate area and the machines, devices, apparatus, or equipment directly associated with the accident or illness.

(2) Any person who knowingly violates an order issued by the division pursuant to this subdivision shall, upon conviction, be punished by a fine of not more than five thousand dollars ($5,000).

(f) Any person who willfully resists, prevents, impedes, or interferes with the chief or their authorized representative in the performance of their duties under subdivisions (a) to (d), inclusive, of this section, or who in any manner willfully violates an order of the court relating to those duties is guilty of a misdemeanor, punishable by imprisonment in a county jail, not exceeding six months, or by a fine not exceeding five thousand dollars ($5,000) or both.

6315.

(a) There is within the division a Bureau of Investigations.

(1) The bureau shall promptly investigate violations of standards, orders, special orders, or Section 25910 of the Health and Safety Code, in which there is a serious injury or illness or a serious exposure to five or more employees, death, or request for prosecution by a division representative.

(2) The bureau shall investigate any accident in which there is a serious injury or illness or a serious exposure for which the division issues a citation of a willful violation.

(3) The bureau shall review inspection reports involving a serious violation if there have been serious injuries or illnesses or serious exposures to one to four employees and shall promptly investigate those cases in which the bureau finds criminal violations may have occurred.

(4) The bureau shall prepare and refer cases for the purpose of prosecution, including evidence and findings.

(b) The division shall provide the bureau with all of the following:

(1) All initial accident reports.

(2) The division’s inspection reports necessary for the bureau’s review or investigation required pursuant to subdivision (a).

(3) Any other documents in the possession of the division requested by the bureau for its review or investigation of any case or that the division determines will be helpful to the bureau in its investigation of the case.

(c) The supervisor of the bureau is the administrative chief of the bureau, and shall be an attorney.

(d) The bureau shall be staffed by as many attorneys and investigators as are necessary to carry out the purposes of this chapter. To the extent possible, the attorneys and investigators shall be experienced in criminal law.

(e) The supervisor of the bureau and bureau representatives designated by the supervisor have a right of access to all places of employment necessary to the investigation, may collect any evidence or samples they deem necessary to an investigation, and have all of the powers enumerated in Section 6314.

(f) The supervisor of the bureau and bureau representatives designated by the supervisor may serve all processes and notices throughout the state.

(g) In any case in which the bureau is required to conduct an investigation pursuant to subdivision (a) and in which there is a serious injury or illness, a serious exposure, or death, the results of the investigation shall be promptly referred by the bureau to the appropriate prosecuting authority having jurisdiction for appropriate action, unless the bureau determines that there is legally insufficient evidence of a criminal violation of the law. If the bureau determines that there is legally insufficient evidence of a criminal violation of the law, the bureau shall notify the appropriate prosecuting authority if the prosecuting authority requests notice.

(h) The bureau may communicate with the appropriate prosecuting authority at any time the bureau deems appropriate.

(i) The division shall immediately notify the appropriate prosecuting authority upon learning of an accident in which there is a serious injury or illness or serious exposure to five or more employees, death, or request for prosecution by a division representative. Upon the request of an appropriate prosecuting authority, the bureau may refer cases that may involve criminal conduct to the appropriate prosecuting authority in lieu of or in cooperation with an investigation by the bureau. In cases accepted for investigation by the prosecuting authority, the bureau and division shall cooperate with the prosecuting authority. If a referral is declined by the prosecuting authority, the bureau shall comply with subdivisions (a) to (h), inclusive.

(j) The bureau shall establish written policies and procedures for reviewing cases and deciding whether to investigate or refer them for prosecution. The policies and procedures shall include a requirement that the bureau documents its rationale for not investigating or referring a case.

(k) The division shall establish a routine or automated process for transmitting information to the bureau about cases with serious injuries or illnesses or serious exposures so that the bureau can review them pursuant to subdivision (a).

6315.3.

The bureau shall, not later than February 15, annually submit to the division for submission to the director, and to the Legislature pursuant to Section 9795 of the Government Code, a report on the activities of the bureau, including, but not limited to, the following:

(a) Totals of each type of report provided the bureau under each category in subdivision (b) of Section 6315.

(b) Totals of each type of case reflecting the number of investigations and court cases in progress at the start of the calendar year being reported, investigations completed in the calendar year, completed investigations referred to appropriate prosecuting authorities in the calendar year, and investigations and court cases in progress at the end of the calendar year. The types of cases shall include the following:

(1) Those that the bureau is required to investigate, divided into fatalities, serious injuries or illnesses or serious exposures to five or more employees, serious injuries or illnesses or serious exposures caused by willful violations, and requests for prosecution from a division representative.

(2) Those that were initiated by the bureau following the review required in paragraph (3) of subdivision (a) of Section 6315, divided into serious injuries or illnesses and serious exposures to fewer than five employees not caused by a willful violation.

(c) A summary of the dispositions in the calendar year of cases referred by the bureau to appropriate prosecuting authorities. The summary shall be divided into the types of cases, as described in subdivision (b), and shall show at least the violation, the statute for which the case was referred for prosecution, and the dates of referral to the bureau for investigation, referral from the bureau for prosecution, and the final court action if the case was prosecuted.

(d) If a case involving a fatality is referred by the bureau to the appropriate prosecuting authority but the prosecuting authority declines to prosecute because the bureau’s referral report submitted pursuant to subdivision (g) of Section 6315 fails to include sufficient evidence of a criminal violation of the law, the bureau shall report that decision and the reason therefor to the Legislature. The specifics contained in that report shall be kept confidential and not publicly available.

(e) A summary of investigations completed in the calendar year that did not result in a referral for prosecution, divided into the types of cases as described in subdivision (b), showing the violation and the reasons for nonreferral.

(f) A summary of the use of the bureau’s resources in accomplishing the bureau’s mission.

6322.

All information reported to or otherwise obtained by the chief or representatives of the chief in connection with any inspection or proceeding of the division that contains or that might reveal a trade secret referred to in Section 1905 of Title 18 of the United States Code, or other information that is confidential pursuant to Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code, shall be considered confidential, except that this information may be disclosed to other officers or employees of the division concerned with carrying out the purposes of the division or when relevant in any proceeding of the division, or to law enforcement officers or prosecutors in any law enforcement investigation or prosecution. The appeals board, standards board, the courts, or the director shall in that type of proceeding issue orders as may be appropriate to protect the confidentiality of trade secrets. Violation of this section is a misdemeanor.

6409.2.

(a) Whenever a state, county, or local fire or police agency is called to an accident involving an employee covered by this part in which a serious injury or illness, or serious exposure, or death occurs, the responding agency shall immediately notify the nearest office of the Division of Occupational Safety and Health by telephone, as well as the district attorney’s office in the county where the incident occurred.

(b) The division shall immediately notify the bureau and the district attorney’s office or other appropriate prosecuting authority, of the accident, whether the division received notification by the responding agency, the employer, or by other means.

6425.

(a) Any employer and any employee having direction, management, control, or custody of any employment, place of employment, or of any other employee, who willfully violates any occupational safety or health standard, order, or special order, or Section 25910 of the Health and Safety Code, and that violation caused death to any employee, caused permanent or prolonged impairment of the body of any employee, or caused serious injury or illness or serious exposure, is guilty of a public offense punishable by imprisonment in a county jail for a term not exceeding one year, or by a fine not exceeding one hundred thousand dollars ($100,000), or by both that imprisonment and fine; or by imprisonment in the state prison for 16 months, or two or three years, or by a fine of not more than two hundred fifty thousand dollars ($250,000), or by both that imprisonment and fine; and in either case, if the defendant is a corporation or a limited liability company, the fine may not exceed one million five hundred thousand dollars ($1,500,000).

(b) If the conviction is for a violation committed within seven years after a conviction under subdivision (b), (c), or (d) of Section 6423 or subdivision (c) of Section 6430, punishment shall be by imprisonment in state prison for a term of 16 months, two, or three years, or by a fine not exceeding two hundred fifty thousand dollars ($250,000), or by both that fine and imprisonment, but if the defendant is a corporation or limited liability company, the fine may not be less than five hundred thousand dollars ($500,000) or more than two million five hundred thousand dollars ($2,500,000).

(c) If the conviction is for a violation committed within seven years after a first conviction of the defendant for any crime involving a violation of subdivision (a), punishment shall be by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for two, three, or four years, or by a fine not exceeding two hundred fifty thousand dollars ($250,000), or by both that fine and imprisonment, but if the defendant is a corporation or a limited liability company, the fine shall not be less than one million dollars ($1,000,000) but may not exceed three million five hundred thousand dollars ($3,500,000).

(d) In determining the amount of fine to be imposed under this section, the court shall consider all relevant circumstances, including, but not limited to, the nature, circumstance, extent, and gravity of the violation, any prior history of violations by the defendant, the ability of the defendant to pay, and any other matters the court determines the interests of justice require.

(e) As used in this section, “willfully” has the same definition as it has in Section 7 of the Penal Code. This subdivision is intended to be a codification of existing law.

(f) This section does not prohibit a prosecution under Section 192 of the Penal Code.