Admitting OSHA Data

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11Dec2013

Admitting OSHA Data

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On October 6, California Governor Gray Davis signed into law Assembly Bill 1127 making several key changes to the Labor Code relating to employee safety and employment-related personal injury and wrongful death litigation.

Initially opposed by a coalition led by the Chamber of Commerce, the Chamber and many others withdrew their opposition after final amendments were made by the state senate. Key supporters of the bill were the California Labor Federation and various district attorneys.

The Federal Labor Code has a comparable section set aside for the regulation of the use of OSHA documents and personnel in private litigation (Title 29, Subpart A, Chapter XVII, Part 1906), but as yet the part is still reserved for future use.

Admissibility of OSHA Rules

A key provision of the bill was to amend Section 6304.5 of the Labor Code regarding the use of Cal/OSHA data in litigation. The section now states that, “the occupational safety and health standards and orders promulgated under this code, are applicable to proceedings against employers…” The state personnel, however may not testify as to interpretation of the regulations. “The testimony of employees of the division shall not be admissible as expert opinion or with respect to the application of occupational safety and health standards.”

In certain cases, evidence regarding Cal/OSHA citations for failure to comply with regulations can also be introduced. “Neither the issuance of, nor failure to issue, a citation by the division shall have any application to, nor be considered in, nor be admissible into, evidence in any personal injury or wrongful death action, except as between an employee and his or her own employer.”

Since Cal/OSHA regulations also frequently incorporate federal OSHA regulations, the new law states that Evidence Code Section 452 also applies to actions in this division. Section 452 states, in part, “Judicial notice may be taken of (b) Regulations and legislative enactments issued by or under the authority of the United States or any public entity in the United States. (c) Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States. ”

This section of the Labor Code also now incorporates by reference Evidence Code Section 669 relating to the presumption of failure to exercise due care when a regulation is violated resulting in death or injury to person or property.

Other Changes

Section 98.7 of the Labor Code has been amended so that a person who feels they have been discharged or discriminated against in violation of the code now has six months rather than 30 days to file a complaint. Civil and criminal penalties for safety violations have been increased. Government entities that had previously been exempt from civil penalties may now be required to pay them.

The complete text of the bill and the legislative history are available from the California Legislature at leginfo.ca.gov/bilinfo.html. Enter “AB1127” into the “Bill Number” box and hit the “Search” button.

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