Report Title:

Occupational Safety and Health

Description:

Provides sanctions for arbitrary or capricious action or conduct by the department of labor and industrial relations with regard to occupational safety and health violations.

HOUSE OF REPRESENTATIVES

H.B. NO.

305

TWENTY-SECOND LEGISLATURE, 2003

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO OCCUPATIONAL SAFETY AND HEALTH.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. Chapter 396, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§396-    Grievance board. (a) There shall be created a grievance board composed of three members:

(1) A representative of the affected employer group;

(2) A representative of the affected employee group; and

(3) A representative from the consultation and training branch.

(b) Each group, whether employer or employee, shall submit a list of representatives choosing to volunteer for such service to the director no later than July 1 of each year of service.

(c) The director shall select the board members for each grievance first by the applicable employer or employee group or the closest group by size and industry, on a rotating basis, with consideration for availability for timely resolution.

(d) The role of the board shall be to hear the complaints or concerns of the grieving employer or employee about the conduct or actions of the department and make recommendations to the director as follows:

(1) Recommendations may include policy change, training, outreach, or investigation for possible disciplinary action against department employees;

(2) The names of the grievants shall be kept confidential from inspection and investigation by representatives of the department, except where the recommendation is made to conduct a disciplinary investigation; and

(3) No action of the department under this section shall conflict with applicable departmental employee bargaining unit contracts.

(e) The director shall respond to each board member within thirty calendar days detailing what actions were taken or providing an explanation in writing where the director has chosen not to accept the board's recommendations.

(f) The director shall compile a report for each fiscal year, which shall include:

(1) The numbers of grievances heard by industry and employer size;

(2) Data on the board member's representation;

(3) A brief, sanitized summary of the complaint;

(4) The board's recommendations;

(5) The outcome to date; and

(6) An evaluation of the board's effectiveness.

(g) Staff support and all costs necessary for the board's functions shall be paid from the occupational safety and health training and consultation fund. Where possible, the director shall utilize free, voluntary assistance and resources from board members and their representative groups.

(h) No record, board recommendation, or response by the director or any statement or report of any kind obtained, received, or prepared in connection with the administration or enforcement of this section shall be admitted or used, whether as evidence or discovery, in any contest or appeal of a citation issued by the director."

SECTION 2. Section 396-4, Hawaii Revised Statutes, is amended by amending subsections (b) and (c) to read as follows:

"(b) Inspection and investigation.

(1) Authorized representatives of the director shall have the right to enter without delay any place of employment during regular working hours and at other reasonable times;

(2) Certification and training of authorized representatives of the director who conduct inspections or investigations:

(A) Certification shall be a nationally recognized organization such as the American Board of Industrial Hygiene, the Board of Certified Safety Professionals, or the American Board of Industrial Hygiene/Board of Certified Safety Professionals Joint Committee no later than June 30, 2004;

(B) The director shall ensure that each authorized representative of the department has received training in such areas as communication skills, interpersonal relations, conflict management, stress management, and customer service; and

(C) All costs for training, certification, and maintenance of such certification required in this paragraph shall be paid from the occupational safety and health training and assistance fund;

(3) The department shall inspect places of employment and machines, devices, apparatus, and equipment for the purpose of insuring adequate protection to the life, safety, and health of workers;

[(3)] (4) The department shall inspect construction activities for the purpose of protecting the health and safety of employees and the general public. A construction activity includes any activity related to the erection, construction, alteration, demolition, or maintenance of buildings, structures, bridges, highways, roadways, dams, tunnels, sewers, underground buildings or structures, underground pipelines or ducts, and any other construction project or facility;

[(4)] (5) The department may investigate the cause of all industrial injuries resulting in disability or death [which] that occur in any employment, or place of employment, and may make reasonable orders and recommendations with respect to the cause of the injuries;

[(5)] (6) The department shall have the right to question privately any employer, owner, operator, agent, or employee in investigation, enforcement, and inspection activities;

[(6)] (7) There shall be a prohibition against advance notice of inspection, except that written exception may be expressly authorized by the director in the director's discretion and pursuant to the rules [and regulations promulgated] adopted under this chapter. Those inspections requiring advance notice for preparation or for other purposes of inspection, as further defined in the rules [and regulations promulgated] adopted under this chapter, shall not be included in the prohibition against advance notice; and

[(7)] (8) An employee of the State acting within the scope of the employee's office, employment, or authority under this chapter shall not be liable in or made a party to any civil action growing out of the administration or enforcement of this chapter.

(c) Education and training.

(1) The department may disseminate, through exhibitions, videos, lectures, pamphlets, and any other method of publicity, information to employers, employees, and the general public regarding the causes and prevention of industrial accidents, injuries, and illnesses;

(2) Where appropriate, the department shall undertake programs in training and consultation with employers and employees as a means of encouraging voluntary compliance with occupational safety and health standards and rules; [and]

(3) Certification and training of authorized representatives of the director who conduct training and consultations:

(A) Certification shall be by a nationally recognized organization such as the American Board of Industrial Hygiene, the Board of Certified Safety Professionals, or the American Board of Industrial Hygiene/Board of Certified Safety Professionals Joint Committee no later than June 30, 2004;

(B) The director shall ensure that each authorized representative of the department has received training in such areas as communication skills, interpersonal relations, conflict management, stress management, and customer service; and

(C) All costs for training, certification, and maintenance of such certification required in this paragraph shall be paid from the occupational safety and health training and assistance fund;

and

(4) There is established a special fund to be known as the occupational safety and health training and assistance fund into which shall be deposited: [in each fiscal year, up to $500,000 in] fines, interest, and penalties collected pursuant to section 396-10; interest earned on any moneys in the fund; and all moneys received for the fund from any source. The moneys in the fund may be used to carry out the purposes of this subsection. The director of finance shall be the custodian of the fund, invest its moneys in accordance with applicable laws and rules, and disburse the moneys in the fund in accordance with instructions from the director of labor and industrial relations and section 36-27. All moneys earned from investments shall be deposited in the fund. The director of finance shall be liable on the director's official bond for the faithful performance of all duties in connection with the fund. The fund may be used for:

(A) Occupational safety and health training programs;

(B) Department-sponsored safety and health conferences;

(C) Additional state consultants (occupational safety and health advisors) to assist employers, unions, and employees;

(D) Preparation of annual reports pursuant to section 396-17; and

(E) Certification programs to enhance safety and health[.]; and

(F) Any other expenses required by this chapter.

The director of labor and industrial relations shall submit annual reports to the legislature on the status of the fund, including expenditures and program results, not less than twenty days prior to the convening of each regular session."

SECTION 3. Section 396-10, Hawaii Revised Statutes, is amended by amending subsection (h) to read as follows:

"(h) Any employer who has received an order for violation under section 396-8(e) may be assessed a civil penalty of not more than [$1,000] $10,000 for each violation."

SECTION 4. Section 396-11, Hawaii Revised Statutes, is amended to read as follows:

"§396-11 Review. (a) Any citation, proposed penalty, or order of the director shall be final and conclusive against the employer, unless the employer files with the director a written notice of contest of the citation, the abatement period stated in the citation, the proposed penalty, or order within twenty days after receipt of the citation, proposed penalty, or order.

(b) The employer may petition the director for modification of the abatement requirements in a citation; provided the employer shall file the petition no later than the close of the next business day following the date on which abatement is required, or under exceptional circumstances and for good cause shown, at a later date. The petition for modification may be filed after the twenty-day period for contesting the citation has expired if the initial abatement period stated in the citation expires after the twenty-day period for filing a notice of contest has run.

(c) The director shall issue an order either affirming or modifying the abatement requirement. The director may issue an order modifying the abatement requirement upon a showing by the employer of a good faith effort to comply with the abatement requirements of a citation and that abatement has not been completed because of factors beyond the employer's reasonable control.

(d) Any employee or representative of employees may file with the director a written notice of contest of the initial abatement period stated in a citation or order alleging that the period of time fixed for abatement is unreasonable; provided the notice is filed within twenty days after the citation or order has been posted. Any employee or representative of employees may also file a written notice of contest of an order granting modification of the abatement period; provided the notice shall be filed within ten days of the posting of the order.

(e) Any employee or representative of employees may file a notice of contest of an order of the director denying a complaint of discrimination filed by an employee pursuant to section 396-8(e); provided that in each case, the notice is filed within twenty days after receipt of the order by the employee.

(f) Any employee or representative of employees may file a notice of contest of an order granting an employer's application for a variance under section 396-4(a)(3); provided the notice is filed within twenty days after the posting of a final order or decision of the director.

(g) Upon receipt, the director shall advise the appeals board of any notice of contest.

(h) The appeals board shall afford an opportunity for a de novo hearing on any notice of contest [except where]; provided that if rules require a prior formal hearing at the department level, the proceedings of which are required to be transcribed, [in which case] the review before the appeals board shall be confined to the record only.

(i) The appeals board may affirm, modify, or vacate the citation, the abatement requirement therein, or the proposed penalty or order or may continue the matter upon terms and conditions as may be deemed necessary, or remand the case to the director with instructions for further proceedings, or direct other relief as may be appropriate.

(j) The affected employees or representatives of affected employees shall be provided an opportunity to participate as parties to hearings under this section.

(k) The appeals board may award reasonable costs, including attorney's fees, consultant's fees, and witness' fees, not to exceed $50,000 in the aggregate, to any employer who appeals a citation resulting from an inspection or investigation conducted on or after July 1, 2004, issued for violation of an occupational safety and health standard, rule, or order established pursuant to this chapter, if:

(1) Either the employer prevails in the appeal or the citation is withdrawn; or

(2) The appeals board finds that the issuance of the citation was the result of arbitrary or capricious action or conduct by the department. The burden of proof shall be on the employer to establish by a preponderance of evidence that the issuance of the citation was the result of arbitrary or capricious action or conduct by the department.

The payment of costs pursuant to this subsection shall be made from the operating budget of the department.

(l) The director shall submit annual reports to the legislature on the number of contests filed pursuant to this section, the disposition of each, and [information indicating whether the issue involved an employee or employees of the department who failed to act within the scope of their office, employment, or authority under this chapter.] the total number of cases and the total costs awarded pursuant to subsection (k)."

SECTION 5. Act 130, Session Laws of Hawaii 1994, as amended by Act 12, Special Session Laws of Hawaii 1995, and Act 28, Session Laws of Hawaii 1999, is amended by amending section 4 to read as follows:

"SECTION 4. This Act shall take effect on July 1, 1994[; provided that:

(1) Sections 1 and 2 shall be repealed on July 1, 2003:

(2) On July 1, 2003, subsection (c) of section 396-4, Hawaii Revised Statutes, is reenacted in the form in which it read on June 30, 1994; and

(3) The director of finance shall transfer to the credit of the state general fund, all unexpended and unencumbered balances remaining in the occupational safety and health training and assistance fund established pursuant to section 396-4, Hawaii Revised Statutes, as of the close of business on June 30, 2003]."

SECTION 6. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 7. This Act shall take effect on June 30, 2003.

INTRODUCED BY:

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