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.

 
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HOUSE OF REPRESENTATIVES                H.B. NO.           
TWENTIETH LEGISLATURE, 2000                                
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:


 1      SECTION 1.  Chapter 396, Hawaii Revised Statutes, is amended
 
 2 by adding a new section to be appropriately designated and to
 
 3 read as follows:
 
 4      "§396-     Grievance board.  (a)  There shall be created a
 
 5 grievance board composed of three members:
 
 6      (1)  A representative of the affected employer group;
 
 7      (2)  A representative of the affected employee group; and
 
 8      (3)  A representative from the consultation and training
 
 9           branch.
 
10      (b)  Each group, whether employer or employee, shall submit
 
11 a list of representatives choosing to volunteer for such service
 
12 to the director no later than July 1 of each year of service.
 
13      (c)  The director shall select the board members for each
 
14 grievance first by the applicable employer or employee group or
 
15 the closest group by size and industry, on a rotating basis, with
 
16 consideration for availability for timely resolution.
 
17      (d)  The role of the board shall be to hear the complaints
 
18 or concerns of the grieving employer or employee and make
 
19 recommendations to the director as follows:
 

 
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 1      (1)  Recommendations may include policy change, training,
 
 2           outreach, or investigation for possible disciplinary
 
 3           action against department employees;
 
 4      (2)  The names of the grievants shall be kept confidential
 
 5           from inspection and investigation representative of the
 
 6           department, except where the recommendation is made to
 
 7           conduct a disciplinary investigation; and
 
 8      (3)  No action of the department under this section shall
 
 9           conflict with applicable departmental employee
 
10           bargaining unit contracts.
 
11      (e)  The director shall respond to each board member within
 
12 thirty calendar days detailing what actions were taken or
 
13 providing an explanation in writing where the director has chosen
 
14 not to accept the board's recommendations.
 
15      (f)  The director shall compile a report for each fiscal
 
16 year, which shall include:
 
17      (1)  The numbers of grievances heard by industry and
 
18           employer size;
 
19      (2)  Data on the board member's representation;
 
20      (3)  A brief, sanitized summary of the complaint;
 
21      (4)  The board's recommendations;
 
22      (5)  The outcome to date; and
 
23      (6)  An evaluation of the board's effectiveness.
 

 
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 1      (g)  Staff support, and all costs necessary for the board's
 
 2 functions shall be paid from the occupational safety and health
 
 3 training and consultation fund.  Where possible, the director
 
 4 shall utilize free, voluntary assistance and resources from board
 
 5 members and their representative groups.
 
 6      (h)  No record, board recommendation, or response by the
 
 7 director, or any statement or report of any kind obtained,
 
 8 received, or prepared in connection with the administration or
 
 9 enforcement of this section shall be admitted or used, whether as
 
10 evidence or discovery, in any contest or appeal of a citation
 
11 issued by the director."
 
12      SECTION 2.  Section 396-4, Hawaii Revised Statutes, is
 
13 amended by amending subsections (b) and (c) to read as follows:
 
14      "(b)  Inspection and investigation.
 
15      (1)  Authorized representatives of the director shall have
 
16           the right to enter without delay any place of
 
17           employment during regular working hours and at other
 
18           reasonable times;
 
19      (2)  Certification and training of authorized
 
20           representatives of the director who conduct inspections
 
21           or investigations:
 
22           (A)  Certification shall be a nationally recognized
 
23                organization such as the American Board of
 

 
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 1                Industrial Hygiene (ABIH), the Board of Certified
 
 2                Safety Professionals (BCSP), or the ABIH/BCSP
 
 3                Joint Committee no later than June 30, 2001;
 
 4           (B)  The director shall ensure that each authorized
 
 5                representative of the department has received
 
 6                training in such areas as communication skills,
 
 7                interpersonal relations, conflict management,
 
 8                stress management, and customer service; and
 
 9           (C)  All costs for training, certification, and
 
10                maintenance of such certification required in
 
11                subparagraphs (A) and (B) shall be paid from the
 
12                occupational safety and health training and
 
13                assistance fund;
 
14     [(2)] (3)  The department shall inspect places of employment
 
15           and machines, devices, apparatus, and equipment for the
 
16           purpose of insuring adequate protection to the life,
 
17           safety, and health of workers;
 
18     [(3)] (4)  The department shall inspect construction
 
19           activities for the purpose of protecting the health and
 
20           safety of employees and the general public.  A
 
21           construction activity includes any activity related to
 
22           the erection, construction, alteration, demolition or
 
23           maintenance of buildings, structures, bridges,
 

 
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 1           highways, roadways, dams, tunnels, sewers, underground
 
 2           buildings or structures, underground pipelines or
 
 3           ducts, and any other construction project or facility;
 
 4     [(4)] (5)  The department may investigate the cause of all
 
 5           industrial injuries resulting in disability or death
 
 6           which occur in any employment, or place of employment,
 
 7           and may make reasonable orders and recommendations with
 
 8           respect to the cause of the injuries;
 
 9     [(5)] (6)  The department shall have the right to question
 
10           privately any employer, owner, operator, agent or
 
11           employee in investigation, enforcement and inspection
 
12           activities;
 
13     [(6)] (7)  There shall be a prohibition against advance
 
14           notice of inspection except that written exception may
 
15           be expressly authorized by the director in the
 
16           director's discretion and pursuant to the rules and
 
17           regulations promulgated under this chapter.  Those
 
18           inspections requiring advance notice for preparation or
 
19           for other purposes of inspection as further defined in
 
20           the rules and regulations promulgated under this
 
21           chapter shall not be included in the prohibition
 
22           against advance notice; and
 
23     [(7)] (8)  An employee of the State acting within the scope
 

 
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 1           of the employee's office, employment, or authority
 
 2           under this chapter shall not be liable in or made a
 
 3           party to any civil action growing out of the
 
 4           administration or enforcement of this chapter.
 
 5      (c)  Education and training.
 
 6      (1)  The department may disseminate, through exhibitions,
 
 7           videos, lectures, pamphlets, and any other method of
 
 8           publicity, information to employers, employees, and the
 
 9           general public regarding the causes and prevention of
 
10           industrial accidents, injuries, and illnesses;
 
11      (2)  Where appropriate, the department shall undertake
 
12           programs in training and consultation with employers
 
13           and employees as a means of encouraging voluntary
 
14           compliance with occupational safety and health
 
15           standards and rules; [and]
 
16      (3)  Certification and training of authorized
 
17           representatives of the director who conduct training
 
18           and consultations:
 
19           (A)  Certification shall be by a nationally recognized
 
20                organization such as the American Board of
 
21                Industrial Hygiene (ABIH), the Board of Certified
 
22                Safety Professionals (BCSP), of the ABIH/BCSP
 
23                Joint Committee no later than June 30, 2001;
 

 
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 1           (B)  The director shall ensure that each authorized
 
 2                representative of the department has received
 
 3                training in such areas as communication skills,
 
 4                interpersonal relations, conflict management,
 
 5                stress management, and customer service; and
 
 6           (C)  All costs for training, certification, and
 
 7                maintenance of such certification required in
 
 8                subparagraphs (A) and (B) shall be paid from the
 
 9                occupational safety and health training and
 
10                assistance fund;
 
11           and
 
12     [(3)] (4)  There is established a special fund to be known as
 
13           the occupational safety and health training and
 
14           assistance fund into which shall be deposited [in each
 
15           fiscal year, up to $500,000 in] fines, interest, and
 
16           penalties collected pursuant to section 396-10;
 
17           interest earned on any moneys in the fund; and all
 
18           moneys received for the fund from any source.  The
 
19           moneys in the fund may be used to carry out the
 
20           purposes of this subsection.  The director of finance
 
21           shall be the custodian of the fund, invest its moneys
 
22           in accordance with applicable laws and rules, and
 
23           disburse the moneys in the fund in accordance with
 

 
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 1           instructions from the director of labor and industrial
 
 2           relations and section 36-27.  All moneys earned from
 
 3           investments shall be deposited in the fund.  The
 
 4           director of finance shall be liable on the director's
 
 5           official bond for the faithful performance of all
 
 6           duties in connection with the fund.  The fund may be
 
 7           used for:
 
 8           (A)  Occupational safety and health training programs;
 
 9           (B)  Department-sponsored safety and health
 
10                conferences;
 
11           (C)  Additional state consultants (occupational safety
 
12                and health advisors) to assist employers, unions,
 
13                and employees;                                    
 
14                     (D)  Preparation of annual reports pursuant
 
15                          to section 396-17[.];
 
16           (E)  Certification programs to enhance safety and
 
17                health[.]; and
 
18           (F)  Any other expenses required by this chapter.
 
19      The director of labor and industrial relations shall submit
 
20 annual reports to the legislature on the status of the fund,
 
21 including expenditures and programs results, not less than twenty
 
22 days prior to the convening of each regular session."
 
23      SECTION 3.  Section 396-10, Hawaii Revised Statutes, is
 

 
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 1 amended by amending subsection (h) to read as follows:
 
 2      "(h)  Any employer who has received an order for violation
 
 3 under section 396-8(e) may be assessed a civil penalty of not
 
 4 more than [$1,000] $10,000 for each violation."
 
 5      SECTION 4.  Section 396-11, Hawaii Revised Statutes, is
 
 6 amended to read as follows:
 
 7      "§396-11  Review.(a)  Any citation, proposed penalty, or
 
 8 order of the director shall be final and conclusive against the
 
 9 employer unless the employer files with the director a written
 
10 notice of contest of the citation, the abatement period stated in
 
11 the citation, the proposed penalty, or order within twenty days
 
12 after receipt of the citation, proposed penalty, or order.
 
13      (b)  The employer may petition the director for modification
 
14 of the abatement requirements in a citation; provided the
 
15 employer shall file the petition no later than the close of the
 
16 next business day following the date on which abatement is
 
17 required, or under exceptional circumstances and for good cause
 
18 shown, at a later date.  The petition for modification may be
 
19 filed after the twenty-day period for contesting the citation has
 
20 expired if the initial abatement period stated in the citation
 
21 expires after the twenty-day period for filing a notice of
 
22 contest has run.
 
23      (c)  The director shall issue an order either affirming or
 

 
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 1 modifying the abatement requirement.  The director may issue an
 
 2 order modifying the abatement requirement upon a showing by the
 
 3 employer of a good faith effort to comply with the abatement
 
 4 requirements of a citation and that abatement has not been
 
 5 completed because of factors beyond the employer's reasonable
 
 6 control.
 
 7      (d)  Any employee or representative of employees may file
 
 8 with the director a written notice of contest of the initial
 
 9 abatement period stated in a citation or order alleging that the
 
10 period of time fixed for abatement is unreasonable; provided the
 
11 notice is filed within twenty days after the citation or order
 
12 has been posted.  Any employee or representative of employees may
 
13 also file a written notice of contest of an order granting
 
14 modification of the abatement period; provided the notice shall
 
15 be filed within ten days of the posting of the order.
 
16      (e)  Any employee or representative of employees may file a
 
17 notice of contest of an order of the director denying a complaint
 
18 of discrimination filed by an employee pursuant to section
 
19 396-8(e); provided that in each case the notice is filed within
 
20 twenty days after receipt of the order by the employee.
 
21      (f)  Any employee or representative of employees may file a
 
22 notice of contest of an order granting an employer's application
 
23 for a variance under section 396-4(a)(3); provided the notice is
 

 
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 1 filed within twenty days after the posting of a final order or
 
 2 decision of the director.
 
 3      (g)  Upon receipt, the director shall advise the appeals
 
 4 board of any notice of contest.
 
 5      (h)  The appeals board shall afford an opportunity for a de
 
 6 novo hearing on any notice of contest except where rules require
 
 7 a prior formal hearing at the department level, the proceedings
 
 8 of which are required to be transcribed, in which case review
 
 9 before the appeals board shall be confined to the record only.
 
10      (i)  The appeals board may affirm, modify, or vacate the
 
11 citation, the abatement requirement therein, or the proposed
 
12 penalty or order or continue the matter upon terms and conditions
 
13 as may be deemed necessary, or remand the case to the director
 
14 with instructions for further proceedings, or direct other relief
 
15 as may be appropriate.
 
16      (j)  The affected employees or representatives of affected
 
17 employees shall be provided an opportunity to participate as
 
18 parties to hearings under this section.
 
19      (k)  The appeals board may award reasonable costs, including
 
20 attorney's fees, consultant's fees, and witness' fees, not to
 
21 exceed $50,000 in the aggregate, to any employer who appeals a
 
22 citation resulting from an inspection or investigation conducted
 
23 on or after July 1, 2001, issued for violation of an occupational
 
24 safety and health standard, rule, or order established pursuant
 

 
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 1 to this chapter, if:
 
 2      (1)  Either the employer prevails in the appeal or the
 
 3           citation is withdrawn;
 
 4      (2)  The appeals board finds that the issuance of the
 
 5           citation was the result of arbitrary or capricious
 
 6           action or conduct by the department.  The burden of
 
 7           proof shall be on the employer to establish by a
 
 8           preponderance of evidence that the issuance of the
 
 9           citation was the result of arbitrary or capricious
 
10           action or conduct by the department; and
 
11      (3)  The payment of costs pursuant to this subsection shall
 
12           be made from the operating budget of the department.
 
13      [(k)] (l)  The director shall submit annual reports to the
 
14 legislature on the number of contests filed pursuant to this
 
15 section, the disposition of each, and [information indicating
 
16 whether the issue involved an employee or employees of the
 
17 department who failed to act within the scope of their office,
 
18 employment, or authority under this chapter.] the total number of
 
19 cases and the total costs awarded pursuant to subsection (k)."
 
20      SECTION 5.  Act 130, Session Laws of Hawaii 1994, as amended
 
21 by Act 12, Special Session Laws of Hawaii 1995, and Act 28,
 
22 Session Laws of Hawaii 1999, is amended by amending section 4 to
 
23 read as follows:
 

 
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 1      "SECTION 4.  This Act shall take effect on July 1, 1994[;
 
 2 provided that:
 
 3      (1)  Sections 1 and 2 shall be repealed on July 1, 2003:
 
 4      (2)  On July 1, 2003, subsection (c) of section 396-4,
 
 5           Hawaii Revised Statutes, is reenacted in the form in
 
 6           which it read on June 30, 1994; and
 
 7      (3)  The director of finance shall transfer to the credit of
 
 8           the state general fund, all unexpended and unencumbered
 
 9           balances remaining in the occupational safety and
 
10           health training and assistance fund established
 
11           pursuant to section 396-4, Hawaii Revised Statutes, as
 
12           of the close of business on June 30, 2003]."
 
13      SECTION 6.  Statutory material to be repealed is bracketed.
 
14 New statutory material is underscored.
 
15      SECTION 7.  This Act shall take effect upon its approval.
 
16 
 
17 
 
18                         INTRODUCED BY:___________________________
 

 
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