CalChamber Fighting Unlimited Access to Employer Documents

A California Chamber of Commerce-opposed a bill that allows organizations unaffiliated with the employer to access an undefined and potentially unlimited scope of employer internal documents. This bill awaits action by the state Senate when legislators return from their summer break. AB 978 (Limón; D-Goleta) also circumvents the rulemaking process now underway to provide employees access to their employer’s Injury and Illness Prevention Program (IIPP). In response to a public request, the California Occupational Safety and Health (Cal/OSHA) Standards Board is moving to establish in regulation a process for employees to gain access to their employer’s IIPP. The CalChamber-led coalition opposing AB 978 proposes the bill be amended to reflect in statute the regulatory action ordered by the Board to begin the rulemaking process. The scope of the new rule is to identify the appropriate methods and representatives to obtain a copy of an employer’s IIPP.

The coalition supports the Board’s decision to begin rulemaking on this important issue without waiting for legislation to develop a rule. Therefore, the coalition opposes AB 978 as drafted unless the bill is amended to reflect the rulemaking that is currently mandated by the Board under its authority to protect worker safety and health in the workplace.

The coalition opposes AB 978 as drafted for these reasons:

• Preempts the regulatory process currently underway to provide a process for employees to access their employer’s IIPP.

• Allows unlimited organizations and individuals having no affiliation with the employer or employee (other than being designated as such) to access the employer’s internal documents.

• Keeps the identity of the employee making the request hidden from the employer.

• Leaves open the question of the scope of the documents to be provided.

• Creates easy opportunity for outside organizations and individuals to harass employers and "fish" for information in an unlimited manner.

• Creates burdens and unlimited costs on employers to comply.

• Circumvents established pathways for access to employer documents through legitimate means.

All employers are required by Cal/OSHA regulations and the California Labor Code to establish, implement and maintain an effective written IIPP.

Implementation of the program requires employers to provide information to employees at critical times about working safely through communication and training. Specific safety instructions and safety practices are not part of the IIPP.

AB 978 allows not only an employee to obtain a copy of the IIPP, but also any number of individuals and organizations unaffiliated with the employer or the employee to be designated to request and receive a copy of the IIPP.

Furthermore, employees are not limited to their authorized union representative for this purpose, nor are they limited to just one representative.

Under AB 978, a request for the IIPP also would require the employer to provide "all required attachments," a term that is not currently in statute or regulation, leaving it open to interpretation. It is the author’s intent for the term "attachments" to include all the employer’s internal records related to implementation of the program.

Currently, these records are available exclusively to either Cal/OSHA in an enforcement action or to plaintiffs in a legal action. During Cal/OSHA enforcement actions, the records available are limited to the matter at hand so as to limit disruption to the workplace. When requested during legal proceedings, the records are limited in scope by the laws governing Cal/OSHA investigations or litigation discovery laws. No such limiting provisions are included in AB 978.

It is concerning that an outside advocacy organization would be allowed to request and receive more employer internal operational documents and records where no violation or legal proceedings are involved than an attorney in legal proceedings, and more than Cal/OSHA is entitled to in an investigation of a safety violation.

The bill does not require the identity of the employee to be disclosed to the employer. Although the language allows the employer to take reasonable steps to verify the identity of the employee or the representative, the requester isn’t required to respond, leaving the employer to wonder if in fact the individual making the request is a current employee.

This provision leaves the door open to harassment of employers by multiple representatives making requests for documents for unnamed or nonexistent employees.

Employers would be subject to an unlimited number of requests by an unlimited number of organizations for a potentially unending supply of documents. The employer would be required to pull together all the documents in question, copy them, and return them to their proper storage for each request.

Most employers will contact an attorney before responding to determine the extent of documents subject to the request, which also has a cost, plus the costs of nuisance litigation that surely would follow many requests. Compliance costs would depend on the size of the company, the number of employees and the type of company.

For example, a construction company would have more records, such as weekly tailgate meetings, regular worksite inspections, job hazard assessments and regular training documentation. The coalition-proposed amendments seek to limit these costs.

To put this in perspective, a construction contractor employer that has 100 employees is likely to have at least 20 projects in a year, generating at least one tailgate and one inspection per week per job plus records kept for its subcontractors on each project, plus subcontractors on a construction site maintaining and providing the same records. The volume of this collection consisting of just tailgate meetings and inspection records would be around 61,200 documents—not including individual training records for each employee, jobsite communications, enforcement or discipline records or other potential "attachments" to the IIPP. One can surmise the cost of assembling and producing only 12 months of such a volume of documents would be an enormous cost to an employer.

The cost of fulfilling just one request for the IIPP and attachments (using Cal/OSHA’s charge of $0.19 per black-and-white copy that assumes labor costs included) would be $11,628. This estimate is for one request and assumes each document is just one page; this bill does not limit the number of requests. Multiple requests will result in skyrocketing costs to employers.

The Cal/OSHA Standards Board is the appropriate entity to establish a safety rule to encompass the requirements of providing employees access to their employer’s IIPP. The rulemaking process currently underway should be allowed to continue with the result of a rule in the California Code of Regulations.

AB 978 is awaiting a vote by the Senate when legislators return from summer recess. The CalChamber is asking members to contact their senators and urge them to oppose AB 978.