Cal-OSHA Overbooking of Hearings
Monday, June 29, 2009 | 0
By Robert Elliott
Nearly four dozen Cal-OSHA field inspectors, senior and district managers have written a letter of complaint to members of the California OSHA Appeals Board protesting "board policies and practices significantly undermining our ability to do our job of protecting the lives, health and safety of California's workers."
The letter alleges the Appeals Board has for over a four-year period followed a deliberate policy of scheduling hearings in such a way as to make it is impossible for inspectors to do their job properly:
"[T]he board has deliberately over-booked hearing days so that a single judge in the same location and the same time has as many as three or four hearings scheduled. The board has continued to refuse to even indicate which case will be heard first. The board has continued to hold hearings at distant locations where worker witnesses have great difficulty in appearing. The board has continued to deny, or simply ignore, legitimate requests for continuances."
The letter, shown below, also notes the signers have been quiet up to this point out of fear of reprisals.
Dear Members of the Board,
We write as 47 individuals who work as field inspectors, seniors and district managers who interact frequently with the Occupational Safety and Health Appeals Board to strongly protest board policies and practices that have significantly undermined our ability to do our job of protecting the lives, health and safety of California's workers.
Over the last four years — and these policies continue to this very day — the board has deliberately over-booked hearing days so that a single judge in the same location and the same time has as many as three or four hearings scheduled. The board has continued to refuse to even indicate which case will be heard first. The board has continued to hold hearings at distant locations where worker witnesses have great difficulty in appearing. The board has continued to deny, or simply ignore, legitimate requests for continuances.
In June 2009, there are 32 days (at six locations) with three or more cases scheduled for the same judge, same location, same time. There are 14 days with four cases scheduled and one day with five cases scheduled (Oakland, June 17th).
How can we, who handle the majority of appeals for the division, prepare exhibits, witnesses and arguments for three separate cases all scheduled for the same time? How can we convince worker witnesses to travel long distances, and then to come back after they have been sent home because their case wasn't heard? The simple answer is that we can't.
That's why there have been hundreds more "settlements" over the last four years, many with drastic reductions of final penalties. These policies are in addition to the recent practice of the board to dismiss cases, even those with serious injuries, on minor technicalities; and to unilaterally "interpret" legislation and ignore court rulings, so as to restrict the division's ability to enforce the law.
The net effect of the board's policies has been to sabotage the division's ability to defend citations and penalties on appeal. Cal-OSHA's deterrent effect has been significantly undermined as employers learn they can "game the system" when the division is coerced into settlements, often with penalties that are pennies on the dollar.
The people who pay the cost for these policies are California workers whose employers look at Cal-OSHA as an agency that is forced to fight with one hand tied behind its back.
We find it troubling that the voard has not processed the years-long backlog of petitions for reconsideration over which the board has sole authority and responsibility. This again undermines worker protections in California as employers are not legally required to abate these citations which remain "under appeal" for years and years.
The voices of Cal-OSHA's front-line employees have not been heard on these issues until now because many of us feared reprisals by the board in the handling of our individual appeals cases, or the handling of cases from the offices where we work. The deck is already so stacked against the division that any more obstacles from the board would be too much. But the various hearings held this spring, and the fact that the board finally has all three members, have given us hope that the board's unfair policies and practices can now be challenged.
As you must know, those of us representing the division at appeal hearings are frequently "out-gunned" by the employers' corporate attorneys who have more resources, personnel and time — even before we have been tripled-booked with hearings, often in places where worker witnesses find it difficult to appear. The current case load and over-booking mean that DOSH attorneys are saddled with an impossible task of preparing multiple major cases for the same day or on sequential days.
We know that not all citations are "open and shut" cases and we believe everyone, including employers, should have the right to a speedy appeal and an impartial review of the facts. All we want is a level playing field.
We ask you to cease and desist with the board's unfair policies and practices against division personnel, and restore the balance to the appeals process so that employers and the Division are treated fairly and equally. California's workers have a right to, and deserve, a workplace health and safety agency that can do its job. (workersxzcompxzkit).
We write as 47 individuals who work as field inspectors, seniors and district managers who interact frequently with the Occupational Safety and Health Appeals Board to strongly protest board policies and practices that have significantly undermined our ability to do our job of protecting the lives, health and safety of California's workers.
Over the last four years — and these policies continue to this very day — the board has deliberately over-booked hearing days so that a single judge in the same location and the same time has as many as three or four hearings scheduled. The board has continued to refuse to even indicate which case will be heard first. The board has continued to hold hearings at distant locations where worker witnesses have great difficulty in appearing. The board has continued to deny, or simply ignore, legitimate requests for continuances.
In June 2009, there are 32 days (at six locations) with three or more cases scheduled for the same judge, same location, same time. There are 14 days with four cases scheduled and one day with five cases scheduled (Oakland, June 17th).
How can we, who handle the majority of appeals for the division, prepare exhibits, witnesses and arguments for three separate cases all scheduled for the same time? How can we convince worker witnesses to travel long distances, and then to come back after they have been sent home because their case wasn't heard? The simple answer is that we can't.
That's why there have been hundreds more "settlements" over the last four years, many with drastic reductions of final penalties. These policies are in addition to the recent practice of the board to dismiss cases, even those with serious injuries, on minor technicalities; and to unilaterally "interpret" legislation and ignore court rulings, so as to restrict the division's ability to enforce the law.
The net effect of the board's policies has been to sabotage the division's ability to defend citations and penalties on appeal. Cal-OSHA's deterrent effect has been significantly undermined as employers learn they can "game the system" when the division is coerced into settlements, often with penalties that are pennies on the dollar.
The people who pay the cost for these policies are California workers whose employers look at Cal-OSHA as an agency that is forced to fight with one hand tied behind its back.
We find it troubling that the voard has not processed the years-long backlog of petitions for reconsideration over which the board has sole authority and responsibility. This again undermines worker protections in California as employers are not legally required to abate these citations which remain "under appeal" for years and years.
The voices of Cal-OSHA's front-line employees have not been heard on these issues until now because many of us feared reprisals by the board in the handling of our individual appeals cases, or the handling of cases from the offices where we work. The deck is already so stacked against the division that any more obstacles from the board would be too much. But the various hearings held this spring, and the fact that the board finally has all three members, have given us hope that the board's unfair policies and practices can now be challenged.
As you must know, those of us representing the division at appeal hearings are frequently "out-gunned" by the employers' corporate attorneys who have more resources, personnel and time — even before we have been tripled-booked with hearings, often in places where worker witnesses find it difficult to appear. The current case load and over-booking mean that DOSH attorneys are saddled with an impossible task of preparing multiple major cases for the same day or on sequential days.
We know that not all citations are "open and shut" cases and we believe everyone, including employers, should have the right to a speedy appeal and an impartial review of the facts. All we want is a level playing field.
We ask you to cease and desist with the board's unfair policies and practices against division personnel, and restore the balance to the appeals process so that employers and the Division are treated fairly and equally. California's workers have a right to, and deserve, a workplace health and safety agency that can do its job. (workersxzcompxzkit).
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Robert Elliott is executive vice president of Amaxx Risk Solutions Inc. in Mansfield Center, Conn. © Copyright by Amaxx Risk Solutions Inc. and www.ReduceYourWorkersComp.com. Reprinted with permission.
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