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Sea of Change at Cal/OSHA – Part 4

Pre-Citation Conference: Form 1BY

Until now Cal/OSHA has refused to speak to employers before citations were issued, and then only within the first 10 calendar days thereafter unless an appeal is filed.

Under AB 2774, Cal/OSHA must offer the employer the opportunity to meet and informally discuss the inspector’s findings and any proposed citations no later than 15 days before they are issued. At this conference the employer can present evidence and arguments why the citations should not be issued, or should be modified. Cal/OSHA has even developed a form for employers to use: Form 1BY.

Cal/OSHA will complete the front page of the 1BY with the charging allegations of the proposed citation. On the back the employer is encouraged to write all of the reasons why it believes the citation should not be issued, why the classification should be lowered, and/or why the penalty should be reduced. The form must then be signed by the employer as being true and correct.

The form does not say it, but Cal/OSHA has taken the position that the employer’s statements in the 1BY constitute admissions and may be used against the employer if a citation is issued and appealed. Cal/OSHA also has taken the position that the citation is no less enforceable if it flat out ignores the arguments raised by the employer in the 1BY.

The form also does not say it, but in the event of an appeal, no negative inference can be made about the fact that the employer chose not to complete the form.

The new law also allows the employer to present evidence that it did all that a reasonable, similarly-situated employer would have done to prevent the violation. Cal/OSHA says that this is a new affirmative defense but it looks a lot like the current defense that the employer did not know of the violative condition, and could not have discovered it with the exercise of reasonable diligence.
Why, then, should an employer even consider completing the 1BY? Because the alternative may be riskier.

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