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How Public Employers Should Respond to Notice of a Workplace Health and Safety Complaint
After three years of COVID-19, many employers are familiar with the occupational safety and health regulations that relate to that specific workplace hazard and the Division of Occupational Safety and Health (“Division” or “DOSH”) which enforces those regulations. (Note: The Division is often referred to as Cal/OSHA.)
However, even with COVID-19 (hopefully) disappearing into the distance in your rearview mirror, it is important to be mindful of the Division’s other regulatory responsibilities, so that your public agency can respond confidently in the event that you see the Division’s flashing red and blue lights approaching you from behind.
To provide you that peace of mind, this post describes how your agency should respond in the event your agency receives notice of a complaint from the Division.
The Division’s Authority
The Division is responsible for ensuring that employers, including public agencies, comply with the General Industry Safety Orders (See Title 8 of the California Code of Regulations). These are occupational safety and health regulations that apply generally to all employers in the state of California and cover subjects ranging from a facility’s physical condition to employees’ exposure to hazardous substances, excessive noise, heat, and more. The Division possesses broad investigatory and enforcement authority and can cite employers and impose significant monetary penalties.
A complaint is an allegation that a hazardous condition existed or hazardous conduct occurred at a worksite controlled by an employer.
In the event that the Division becomes aware of such a hazard at a public agency (usually through a complaint, anonymous or otherwise), the Division will provide notice to the agency and certain information about the hazard and the regulation allegedly violated.
The Division will provide notice of the complaint to the public agency prior to the Division conducting any investigation of the alleged hazard. As a result, the Division’s issuance of notice of a complaint does not constitute a determination by the Division that any hazardous condition actually exists. Rather, the Division’s notice is an opportunity for the public agency to investigate and, as may be necessary, correct any hazard that may have existed.
Information Provided in the Notice
Notices of complaint include the following information: (1) information about the alleged hazard and the regulation allegedly violated; (2) the public agency’s obligation to investigate the alleged hazard; (3) the agency’s obligation to post the notice of the complaint; and (4) an admonition to refrain from any discriminatory or retaliatory conduct against the complainant.
The notice will include the following information about the alleged regulatory violation: (1) the work location where the violation allegedly occurred; (2) the regulation allegedly violated; and (3) the conduct or condition at the location that allegedly constitutes a violation of the regulatory section.
The notice will also instruct the public agency to investigate the alleged hazard and to notify the Division as to whether the alleged hazard exists. The notice will set a deadline (typically five (5) days from the agency’s receipt of the notice) for the employer to respond to the Division and inform the Division about the existence of the hazard.
Finally, the notice will inform the public agency of the agency’s obligation to post the notice. The agency must post the notice in a prominent location in the workplace (e.g., a bulletin board where the agency typically posts notices to employees about work-related issues) and must maintain the posting for at least three (3) days.
Investigating the Complaint
After posting the notice, as described above, an agency should undertake the following actions in order to investigate and remediate any potential hazard:
1. Contact the Division to obtain any additional information about the alleged hazard and violation (Note: The notice will identify the district office and will provide the name and contact information for the district manager or staff member responsible for the complaint. The district office may possess additional information about the nature of the specific complaint);
2. Review and analyze the specific regulation or regulations cited in the notice in order to understand the extent of the employer’s regulatory obligations (Note: The notice will provide a web address where employers can search for the specific regulatory section identified in the notice);
3. Inform management staff who are responsible for the work location where the hazard allegedly existed or occurred and the staff who are responsible for conduct that may have created the hazard;
4. Investigate and, as necessary, correct the hazard.
A public agency may request additional time from the Division in order to investigate an alleged hazard. If the agency anticipates requiring additional time beyond that set forth in the notice, it is advisable that the agency request an extension from the Division as soon as is practicable, so as not to violate the deadline if the requested extension is not granted.
Responding to the Division
After the public agency thoroughly investigates the alleged hazard, the agency should respond in writing to the Division, either denying the existence of the hazard at the work location or explaining that the employer remedied or is in the process of remedying whatever hazard may have existed.
It is imperative to respond to the Division in the period prescribed as failure to do so may result in the Division conducting a worksite inspection, which could result in the Division issuing citations and imposing monetary penalties related to the alleged regulatory violation. Further, a worksite investigation could also potentially uncover additional supposed regulatory violations that were not initially at issue. (Note: Even if the agency responds to the Division in a comprehensive and timely manner, the Division retains authority to conduct a worksite inspection in order to ensure the agency’s regulatory compliance.)
The written response to the Division should be clear and concise. The response should explain why there was no hazard or regulatory violation at the work location identified or, if there was a hazard, what affirmative specific steps the agency undertook in order to address and correct the hazard and why, as a result, the agency is no longer in violation of the cited regulation.
In addition to the written response, the agency should provide the Division relevant documentation, such as copies of policies, photographs of the work location, or contracts for corrective work, that support the employer’s position that there was either no hazard or regulatory violation or that the hazard was remedied and compliance reestablished.
Refrain from Any Discriminatory or Retaliatory Conduct
It is imperative that public agencies observe California law, which protects employees who file complaints about occupational safety and health hazards, and refrain from engaging in any discriminatory or retaliatory conduct against anyone that the agency believes may have filed the complaint or assisted with its filing.
While agencies may interview employees who witnessed the hazard as part of the agency’s investigation into the hazard, as a best practice, an agency should not seek to identify the complainant.
In the event of a notice of the type described above, it is prudent to contact trusted legal counsel familiar with the occupational safety and health regulations and who can assist public agencies respond to complaints, facilitate worksite inspections, and appeal citations and penalties.