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June 30, 2017

Happy 4th, Adult Industry! Cal/OSHA Is Increasing Its Fines!

SACRAMENTO, Calif.—In an announcement that appeared in today's edition of the CalOSHA Reporter, the California Division of Occupational Safety & Health (Cal/OSHA) announced that "in order to protect the life and safety of employees," a new budget bill had just been signed by Gov. Jerry Brown that raises the fines for certain violations by nearly double the previous top limits on such penalties—and some of the categories for which fines will be raised are ones that may affect adult industry productions. According to a press release by the Division, "The California Occupational Safety and Health Act of 1973 authorizes the Division of Occupational Safety and Health to administer laws and enforce labor standards, orders, or special orders in order to protect the life and safety of employees. Under that law, an employer who violates an occupational safety or health standard, order, or special order or a prohibition against asbestos spraying that is specifically determined not to be of a serious nature may be assessed a civil penalty of up to $7,000 per violation. Existing law also authorizes a civil penalty of up to $7,000 for violating any of the occupational posting, recordkeeping, or notice requirements. That law further authorizes the imposition of a civil penalty of not more than $70,000 per violation upon an employer who willfully or repeatedly violates any of these occupational safety or health standards. "This bill would increase those civil penalty amounts to up to $12,471 for each violation that is not of a serious nature and each violation of the posting, recordkeeping, or notice requirements, and up to $124,709, but not less than $8,908, for each willful or repeated violation of any of these occupational safety or health standards or orders. The bill would also permit those maximum penalty amounts to be increased on January 1, 2018, and each January 1 thereafter based on the percentage in the Consumer Price Index for All Consumers (CPI-U), as specified. The bill would also exempt any regulation issued increasing those penalty amounts based on the CPI-U from the rulemaking provisions of the Administrative Procedure Act, but would require the filing of those regulations with the Office of Administrative Law for publication in the California Code of Regulations." Get that? Not only will violation of "occupational safety or health standards or orders"—like, for instance, failing to use "barrier protections" when shooting adult content—now possibly cost producers $54,000 more for each offense, that amount may increase each January 1—and best of all, the legislature will have virtually no power to rescind those increases, thanks to the Administrative Procedure Act! "During the quiet of summer, the legislature and the governor sometimes shuffle new regulations and laws right under our noses—and Cal/OSHA penalties just got higher," noted Karen Tynan, a First Amendment attorney who frequently represents adult producers accused of Cal/OSHA violations. "Within the budget bill signed by Governor Brown, Cal/OSHA is now authorized to issue higher penalties for the more mundane violations involving record-keeping, reporting, and notices. General violations that had typically been calculated at a few hundred or a few thousand dollars can now go up to $12,471. That’s quite a bite for a violation that many employers inadvertently commit. Willful violations are now calculated at up to $124,709. That’s a huge jump, especially when you consider that Cal/OSHA uses that 'willful' classification against employers within the adult film industry.  "My 'take away' for adult film industry employers is this," she added. "1) Keep your OSHA 300 log up to date and accurate; 2) If you have a serious accident in the workplace, take action to follow the reporting requirements; and 3) Make sure you have all of your California required workplace postings up to date." Additionally, the Division will be reporting to the Cal/OSHA Standards Board when it meets in San Diego on July 20 regarding the two petitions currently before it, one from Free Speech Coalition and one from AIDS Healthcare Foundation, and both involving protections for adult performers. While it is unlikely that any decision will be made regarding either petition at that Standards Board meeting, a healthy presence from the adult industry at that meeting would show the Standards Board that the issue is of great concern to the industry. The meeting will be held in Room 310 of the County Administration Center, 1600 Pacific Highway, San Diego 92101, beginning at 10 a.m.

 
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