The California Occupational Safety and Health Appeals Board (Board) is soliciting public comments on proposed revisions to its Rules of Practice and Procedure. The three-member Board hears appeals from public- and private-sector employers regarding citations issued by the California Division of Occupational Safety and Health (DOSH) and is authorized to adopt procedural rules related to these appeals. If adopted, the proposals would primarily affect the way appeals are docketed and discovery is conducted during proceedings before the Board.
Perhaps the most significant potential change for employers is the proposed repeal of Title 8, Section 372.9, which requires DOSH to provide employers with copies of all documents and evidence related to an appeal within 30 days. Instead, DOSH would only be required to produce discovery after receiving a written discovery request from the employer. The repeal would also eliminate DOSH’s continuing obligation to update the employer with any newly discovered, relevant material. Also noteworthy is the proposed requirement that members of the California State Bar issue their own subpoenas and subpoenas duces tecum, rather than submitting subpoena requests to the Board. The Board, however, would still process subpoena requests for parties not represented by counsel and the timeframe for doing so would be extended to five days. Taken together, these proposals would significantly alter the way discovery is conducted during appeals before the Board, and employers unaware of the changes may not timely receive documents and information critical to the success of their appeal. The proposed changes come on the heels of several high-profile appeals in which DOSH resisted providing appellant employers in discovery with documentation from the agency’s inspection file, including on the basis that this information was protected by attorney-client privilege.
Other less significant proposed changes would modify the way appeals are docketed. For example, the Board is proposing to require that DOSH, rather than the employer, provide a copy of the appealed citations within 15 days. After DOSH provides a copy of the appealed citations to the Board, the appeals would be “perfected” (currently, the Board does not distinguish between docketed and perfected appeals). At this point, the Board would be required to advise the parties that the appeal was perfected and discovery may commence. During expedited proceedings, a telephonic status conference would be held within 30 days of perfection, rather than within 30 days of docketing, potentially giving the employers up to 15 additional days to prepare for the status conference during these types of proceedings.
The Board is accepting public comments on the proposed revisions until 5 p.m. on August 22, 2019. On the same day, the Board will hold two public hearings on the rulemaking, one in Northern California and one in Southern California.
If you have any questions about submitting written comments or testimony at a public hearing, or about changes in the law relating to DOSH appeals, please let us know.