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1BY – An Enforcement Tool, Not A Good Faith Invitation to Dialog

The 1BY letter created by Assembly Bill 2774 was intended to engage the employer in a dialog with Cal/OSHA about its decision to issue a serious-classified citation following an investigation. The law specifically provides that the intended citation cannot be issued until 15 days following notice to the employer of Cal/OSHA’s intent to cite.

We have discussed here cases where inspectors have filled in the form response for the employer to sign. We have also seen citations issued within the 15 day response period (that case is the subject of a motion by our office to dismiss the citation). We have also been told by more than one inspector and district manager that, to them, the requirement to send the 1BY letter is just another box to check. They know what they intend to do and don’t bother to read the responses until they are looking for ways to defeat an appeal by finding differences between what the employer said then and now.

But now, in a case currently under investigation, we have seen a new use for the 1BY as an investigation tool, not as a check on the inspector’s final decision. In this case the Cal/OSHA inspector issued his 1BY letter to the employer within a week of opening the investigation, sending it in the same envelope as his request for documents.

This approach may be allowed by a surface reading of the statute, but it certainly is not what was intended by the drafters of Assembly Bill 2774.

Further, this use of the 1BY confirms Cal/OSHA’s legal counsel’s statement just after the law was enacted that employers’ responses will be held against them – that is, be used as a prosecutorial tool, not an innocent discussion of the matter.

We cannot think of a situation where we would advise a client to complete a 1BY form letter within a month of an accident. And we question whether Cal/OSHA is acting responsibly in deciding what to cite the employer for in that short a time frame.

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