6423-6436
LABOR CODE
SECTION 6423-6436
6423. (a) Except where another penalty is specifically provided,
every employer and every officer, management official, or supervisor
having direction, management, control, or custody of any employment,
place of employment, or of any other employee, who does any of the
following is guilty of a misdemeanor:
(1) Knowingly or negligently violates any standard, order, or
special order, or any provision of this division, or of any part
thereof in, or authorized by, this part the violation of which is
deemed to be a serious violation pursuant to Section 6432.
(2) Repeatedly violates any standard, order, or special order, or
provision of this division, or any part thereof in, or authorized by,
this part, which repeated violation creates a real and apparent
hazard to employees.
(3) Knowingly fails to report to the division a death, as required
by subdivision (b) of Section 6409.1.
(4) Fails or refuses to comply, after notification and expiration
of any abatement period, with any such standard, order, special
order, or provision of this division, or any part thereof, which
failure or refusal creates a real and apparent hazard to employees.
(5) Directly or indirectly, knowingly induces another to commit
any of the acts in paragraph (1), (2), (3), or (4) of subdivision
(a).
(b) Any violation of paragraph (1) of subdivision (a) is
punishable by imprisonment in the county jail for a period not to
exceed six months, or by a fine not to exceed five thousand dollars
($5,000), or by both that imprisonment and fine.
(c) Any violation of paragraph (3) of subdivision (a) is
punishable by imprisonment in county jail for up to one year, or by a
fine not to exceed fifteen thousand dollars ($15,000), or by both
that imprisonment and fine. If the violator is a corporation or a
limited liability company, the fine prescribed by this subdivision
may not exceed one hundred fifty thousand dollars ($150,000).
(d) Any violation of paragraph (2), (4), or (5) of subdivision (a)
is punishable by imprisonment in a county jail for a term not
exceeding one year, or by a fine not exceeding fifteen thousand
dollars ($15,000), or by both that imprisonment and fine. If the
defendant is a corporation or a limited liability company, the fine
may not exceed one hundred fifty thousand dollars ($150,000).
(e) In determining the amount of fine to impose 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.
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, or caused permanent or prolonged
impairment of the body of any employee, 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 defendent for any crime
involving a violation of subdivision (a), punishment shall be by
imprisonment in the state prison 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.
6426. Whoever knowingly makes any false statement, representation,
or certification in any application, record, report, plan, or other
document filed or required to be maintained pursuant to this division
shall, upon conviction, be punished by a fine of not more than
seventy thousand dollars ($70,000), or by imprisonment for not more
than six months, or by both.
6427. Any employer who violates any occupational safety or health
standard, order, or special order, or Section 25910 of the Health and
Safety Code, and the violation is specifically determined not to be
of a serious nature, may be assessed a civil penalty of up to seven
thousand dollars ($7,000) for each violation.
6428. Any employer who violates any occupational safety or health
standard, order, or special order, or Section 25910 of the Health and
Safety Code, if that violation is a serious violation, shall be
assessed a civil penalty of up to twenty-five thousand dollars
($25,000) for each violation. Employers who do not have an operative
injury prevention program shall receive no adjustment for good faith
of the employer or history of previous violations as provided in
paragraphs (3) and (4) of subdivision (c) of Section 6319.
6428.5. An employer's injury prevention program shall be deemed to
be operative for the purposes of Sections 6427 and 6428 if it meets
the criteria for substantial compliance established by the standards
board pursuant to Section 6401.7.
6429. (a) Any employer who willfully or repeatedly violates any
occupational safety or health standard, order, or special order, or
Section 25910 of the Health and Safety Code, may be assessed a civil
penalty of not more than seventy thousand dollars ($70,000) for each
violation, but in no case less than five thousand dollars ($5,000)
for each willful violation.
(b) Any employer who repeatedly violates any occupational safety
or health standard, order, or special order, or Section 25910 of the
Health and Safety Code, shall not receive any adjustment of a penalty
assessed pursuant to this section on the basis of the regulations
promulgated pursuant to subdivision (c) of Section 6319 pertaining to
the good faith of the employer or the history of previous violations
of the employer.
(c) The division shall preserve and maintain records of its
investigations and inspections and citations for a period of not less
than seven years.
6430. (a) Any employer who fails to correct a violation of any
occupational safety or health standard, order, or special order, or
Section 25910 of the Health and Safety Code, within the period
permitted for its correction shall be assessed a civil penalty of not
more than fifteen thousand dollars ($15,000) for each day during
which the failure or violation continues.
(b) Notwithstanding subdivision (a), for any employer who submits
a signed statement affirming compliance with the abatement terms
pursuant to Section 6320, and is found upon a reinspection not to
have abated the violation, any adjustment to the civil penalty based
on abatement shall be rescinded and the additional civil penalty
assessed for failure to abate shall not be adjusted for good faith of
the employer or history of previous violations as provided in
paragraphs (3) and (4) of subdivision (c) of Section 6319.
(c) Notwithstanding subdivision (a), any employer who submits a
signed statement affirming compliance with the abatement terms
pursuant to subdivision (b) of Section 6320, and is found not to have
abated the violation, 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 thirty thousand dollars ($30,000), or by both
that fine and imprisonment; but if the defendant is a corporation or
a limited liability company the fine shall not exceed three hundred
thousand dollars ($300,000). In determining the amount of the 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. Nothing in this section shall be construed to prevent
prosecution under any law that may apply.
6431. Any employer who violates any of the posting or recordkeeping
requirements as prescribed by regulations adopted pursuant to
Sections 6408 and 6410, or who fails to post any notice required by
Section 3550, shall be assessed a civil penalty of up to seven
thousand dollars ($7,000) for each violation.
6432. (a) There shall be a rebuttable presumption that a "serious
violation" exists in a place of employment if the division
demonstrates that there is a realistic possibility that death or
serious physical harm could result from the actual hazard created by
the violation. The demonstration of a violation by the division is
not sufficient by itself to establish that the violation is serious.
The actual hazard may consist of, among other things:
(1) A serious exposure exceeding an established permissible
exposure limit.
(2) The existence in the place of employment of one or more unsafe
or unhealthful practices, means, methods, operations, or processes
that have been adopted or are in use.
(b) (1) Before issuing a citation alleging that a violation is
serious, the division shall make a reasonable attempt to determine
and consider, among other things, all of the following:
(A) Training for employees and supervisors relevant to preventing
employee exposure to the hazard or to similar hazards.
(B) Procedures for discovering, controlling access to, and
correcting the hazard or similar hazards.
(C) Supervision of employees exposed or potentially exposed to the
hazard.
(D) Procedures for communicating to employees about the employer's
health and safety rules and programs.
(E) Information that the employer wishes to provide, at any time
before citations are issued, including, any of the following:
(i) The employer's explanation of the circumstances surrounding
the alleged violative events.
(ii) Why the employer believes a serious violation does not exist.
(iii) Why the employer believes its actions related to the alleged
violative events were reasonable and responsible so as to rebut,
pursuant to subdivision (c), any presumption established pursuant to
subdivision (a).
(iv) Any other information that the employer wishes to provide.
(2) The division shall satisfy its requirement to determine and
consider the facts specified in paragraph (1) if, not less than 15
days prior to issuing a citation for a serious violation, the
division delivers to the employer a standardized form containing the
alleged violation descriptions ("AVD") it intends to cite as serious
and clearly soliciting the information specified in this subdivision.
The director shall prescribe the form for the alleged violation
descriptions and solicitation of information. Any forms issued
pursuant to this section shall be exempt from the rulemaking
provisions of the Administrative Procedure Act (Chapter 3.5
(commencing with Section 11340) of Part 1 of Division 3 of Title 2 of
the Government Code).
(c) If the division establishes a presumption pursuant to
subdivision (a) that a violation is serious, the employer may rebut
the presumption and establish that a violation is not serious by
demonstrating that the employer did not know and could not, with the
exercise of reasonable diligence, have known of the presence of the
violation. The employer may accomplish this by demonstrating both of
the following:
(1) The employer took all the steps a reasonable and responsible
employer in like circumstances should be expected to take, before the
violation occurred, to anticipate and prevent the violation, taking
into consideration the severity of the harm that could be expected to
occur and the likelihood of that harm occurring in connection with
the work activity during which the violation occurred. Factors
relevant to this determination include, but are not limited to, those
listed in subdivision (b).
(2) The employer took effective action to eliminate employee
exposure to the hazard created by the violation as soon as the
violation was discovered.
(d) If the employer does not provide information in response to a
division inquiry made pursuant to subdivision (b), the employer shall
not be barred from presenting that information at the hearing and no
negative inference shall be drawn. The employer may offer different
information at the hearing than what was provided to the division and
may explain any inconsistency, but the trier of fact may draw a
negative inference from the prior inconsistent factual information.
The trier of fact may also draw a negative inference from factual
information offered at the hearing by the division that is
inconsistent with factual information provided to the employer
pursuant to subdivision (b), or from a failure by the division to
provide the form setting forth the descriptions of the alleged
violation and soliciting information pursuant to subdivision (b).
(e) "Serious physical harm," as used in this part, means any
injury or illness, specific or cumulative, occurring in the place of
employment or in connection with any employment, that results in any
of the following:
(1) Inpatient hospitalization for purposes other than medical
observation.
(2) The loss of any member of the body.
(3) Any serious degree of permanent disfigurement.
(4) Impairment sufficient to cause a part of the body or the
function of an organ to become permanently and significantly reduced
in efficiency on or off the job, including, but not limited to,
depending on the severity, second-degree or worse burns, crushing
injuries including internal injuries even though skin surface may be
intact, respiratory illnesses, or broken bones.
(f) Serious physical harm may be caused by a single, repetitive
practice, means, method, operation, or process.
(g) A division safety engineer or industrial hygienist who can
demonstrate, at the time of the hearing, that his or her
division-mandated training is current shall be deemed competent to
offer testimony to establish each element of a serious violation, and
may offer evidence on the custom and practice of injury and illness
prevention in the workplace that is relevant to the issue of whether
the violation is a serious violation.
6433. The civil penalties set forth in Sections 6427 to 6431,
inclusive, shall not be considered as other penalties specifically
provided within the meaning of Section 6423.
6434. (a) Any civil or administrative penalty assessed pursuant to
this chapter against a school district, county board of education,
county superintendent of schools, charter school, community college
district, California State University, University of California, or
joint powers agency performing education functions shall be deposited
with the Workplace Health and Safety Revolving Fund established
pursuant to Section 78.
(b) Any school district, county board of education, county
superintendent of schools, charter school, community college
district, California State University, University of California, or
joint powers agency performing education functions may apply for a
refund of their civil penalty, with interest, if all conditions
previously cited have been abated, they have abated any other
outstanding citation, and if they have not been cited by the division
for a serious violation at the same school within two years of the
date of the original violation. Funds not applied for within two
years and six months of the time of the original violation shall be
expended as provided for in Section 78 to assist schools in
establishing effective occupational injury and illness prevention
programs.
6434.5. (a) Any civil or administrative penalty assessed pursuant
to this chapter against a public police or city, county, or special
district fire department or the California Department of Forestry and
Fire Protection shall be deposited into the Workers' Compensation
Administration Revolving Fund established pursuant to Section 62.5.
(b) Any public police or city, county, or special district fire
department or the California Department of Forestry and Fire
Protection may apply for a refund of any civil or administrative
penalty assessed pursuant to this chapter, with interest, if all
conditions previously cited have been abated, the department has
abated any other outstanding citation, and the department has not
been cited by the division for a serious violation within two years
of the date of the original violation. Funds received as a result of
a penalty, for which a refund is not applied for within two years and
six months of the time of the original violation, shall be expended
in accordance with Section 78 as follows:
(1) Funds received as a result of a civil or administrative
penalty imposed on a city, county, or special district fire
department or the California Department of Forestry and Fire
Protection shall be allocated to the California Firefighter Joint
Apprenticeship Program for the purpose of establishing and
maintaining effective occupational injury and illness prevention
programs.
(2) Funds received as a result of a civil or administrative
penalty imposed on a police department shall be allocated to the
Office of Criminal Justice Planning, or any succeeding agency, for
the purpose of establishing and maintaining effective occupational
injury and illness prevention programs.
(c) This section does not apply to that portion of any civil or
administrative penalty that is distributed directly to an aggrieved
employee or employees pursuant to the provisions of Section 2699.
6435. (a) Any employer who violates any of the requirements of
Chapter 6 (commencing with Section 6500) of this part shall be
assessed a civil penalty under the appropriate provisions of Sections
6427 to 6430, inclusive.
(b) This section shall become inoperative on January 1, 1987, and
shall remain inoperative until January 1, 1991, at which time it
shall become operative, unless a later enacted statute, which becomes
effective on or before January 1, 1991, deletes or extends that
date.
6436. The criminal complaint regarding a violation of Section
6505.5 may be brought by the Attorney General or by the district
attorney or prosecuting attorney of any city, in the superior court
of any county in the state with jurisdiction over the contractor or
employer, by reason of the contractor's or employer's act or failure
to act within that county. Any penalty assessed by the court shall be
paid to the office of the prosecutor bringing the complaint, but if
the case was referred to the prosecutor by the division, or some
other governmental unit, one-half of the civil or criminal penalty
assessed shall be paid to that governmental unit.