1. Multi-Employer Developments
2. State Auditor Slams Cal/OSHA
3. We're Published!

Multi-Employer Developments:

You will recall from earlier e-zines that Overaa Construction has challenged Cal/OSHA's view of the effort expected of "controlling" employers under the Multi-Employer Worksite regulation. Briefly, Overaa disagrees with Cal/OSHA and the Appeals Board that a "controlling" employer is strictly accountable for unsafe conditions created by other employers under its "control", regardless any showing of due diligence to maintain a safe workplace.

Overaa has appealed Sacramento Superior Court Judge Lloyd Connolly's ruling in favor of Cal/OSHA and the Appeals Board to the 3rd District Court of Appeals in Sacramento. Opening briefs were filed by Overaa and its amicus curiae ("friend of the court") this month. We are pleased to have been accepted by the Court as amicus counsel on behalf of Associated General Contractors of California. Click here to read a copy of the brief filed on behalf of the AGC (You need Adobe Acrobat reader to read this file).

Briefs in opposition to the appeal will be filed by Cal/OSHA and the Appeals Board in the near future. Once those and any rebuttal briefs have been filed the Court will set a date for oral argument.

In a related development, Cal/OSHA acting Chief Len Welsh met with representatives of the Construction Employers' Association on this issue and has agreed to empanel an Advisory Committee to consider possible changes to the way Cal/OSHA handles multi-employer issues.

State Auditor Slams Cal/OSHA

If you are Cal/OSHA acting Chief Len Welsh, what do you get when you reach a deal with the prime contractor on a massive bridge construction project which:

• Allows your inspectors unfettered access to the worksite;
• Results in a 612% increase in site inspections over the prior period;
• Results in over 200 hazards being corrected on the spot without the need to write citations and endure endless appeals (and no immediate abatement); and
• An illness and injury rate 25% lower than comparable projects?

Answer: A 58-page report from the State Auditor to the Governor and the Legislature which practically accuses you and your District Manager of collusion with the employer to continue maiming and poisoning its employees with impunity.

The Auditor focused its criticism on three main points:

1. Cal/OSHA has no procedure to confirm that the information on an employer's OSHA 300 log is accurate. They recommend that Cal/OSHA be made to expend additional effort at auditing paperwork.

2. Cal/OSHA abdicated its responsibility to fully investigate every complaint it received, a number of which were of dubious validity.

3. The employer used cash incentives as rewards for low injury rates. The Auditor is suspicious of the practice, even while acknowledging that there is no consensus in the safety community on the wisdom or effectiveness of incentives.

The Auditor based its conclusions in great part on employee interviews. It asked 565 current and former employees to talk; only 139 volunteered to do so. Of those - not unexpectedly for those who follow these things - only 47 had positive things to say about the employer's safety program. The Auditor's own methodology suggests a need to audit the Auditor.

The report also takes a glance at Caltrans, since it was heavily involved in safety supervision on the project. Those cynics among us who have noticed that Cal/OSHA always seems to give Caltrans a pass will find the following from page 10 exquisite: "…Caltrans is always concerned about worker safety…but is not legally responsible for the safety of contractor employees." Really? Division lawyers have told us (off the record) that Caltrans qualifies as a "controlling" employer on its jobs. But like Nixon, Caltrans is the perennial "unindicted co-conspirator."

The State Auditor missed assessing the health of the forest by focusing on a few (questionably) diseased trees. The old saying remains true: No good deed goes unpunished. We offer Len Welsh and former Oakland District Manager Mike Horowitz our thanks for attempting this innovative project. We would like to think that this will not be the last effort by Compliance to partner with employers in a very meaningful way.

We're Published!

Last August the State Bar's publishing division, CEB, asked us to assume authorship of the "Workplace Safety" chapter in its three-volume treatise "Advising California Employers and Employees". The treatise is a reference guide for attorneys, although it is useful for laypersons as well. Since the chapter had not been updated since before AB 1127, we had (and still have) our work cut out for us. The new edition was published last month.