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By Tom Valentine, Senior Criminalist,
California Department of Justice, Bureau of Forensic Services
November 15, 1999
Are you a "Safety Officer?" Do you respond to Clandestine Laboratories or other crime scenes and apply hazardous chemicals to locate hidden blood or make fingerprints visible? If you answered "Yes" to any of these questions, this article will be of interest to you.
Larry Kazanjian, attorney with Littler Mendelson in Sacramento, California, was the instructor on legal issues at the California Criminalistics Institute (CCI) Laboratory Safety Officer Training class in October 1999. Written scenarios (case examples) of concern to forensic laboratory workers and specific questions were presented for class discussion. To help frame the discussion, types of "Safety Officers" were defined and applicable laws were reviewed before the discussion:
A MANAGER with authority over budget allocations and policy, i.e., rules/procedures/discipline. This person meets the Cal/OSHA criteria to be identified as a Person Responsible under the Injury and Illness Prevention Program (IIPP).
A SUPERVISOR without budgetary authority who oversees work and enforces policy, i.e., rules/procedures/discipline. In the absence of the Manager, if this person has budgetary authority, they would meet Cal/OSHA’s criteria to be identified as a Person Responsible under the IIPP.
A rank-and-file WORKER without budgetary or policy authority. This WORKER could not be identified as a Person Responsible for the IIPP per Cal/OSHA. In the DOJ, Lab Safety Officers provide information via advice and consultation to staff, supervisors and managers. Safety Officers instruct new staff in local safety procedures, perform periodic inspections, maintain safety devices and equipment, identify necessary protective equipment and maintain inventory of supplies.
ALL EMPLOYEES are expected to anticipate and mitigate hazards and risks (within the scope of their education, training and experience) to themselves and for anyone who is not following proper procedures or who enters the work area, and to report perceived safety problems to the supervisor. Any staff, can make recommendations to supervisors and/or managers for consideration and potential adoption.
CA Labor Code 6423. Except where another penalty is specifically provided, every employer, and every officer, management official, or supervisor having direction, management, control, or custody of any employment, place of employment, or other employee, who does any of the following shall be guilty of a misdemeanor: (a) Knowingly or negligently violates any standard, order, or special order, or any provision of this division, or of any part thereof in, . . . (d) Directly or indirectly, knowingly induces another to do any of the above. . . Any violation of this section is punishable by imprisonment in the county jail not exceeding six months, or by a fine not exceeding five thousand dollars ($5,000), or by both.
CA Labor Code 6425. Any employee having direction, management, control, or custody of any employment, place of employment, or other employee, who willfully violates any occupational safety or health standard, order, or special order, or Section of 25910 of the H&S code, and that violation caused death to any employee, shall, upon conviction, be punished by a fine of not more than $70,000, imprisonment for not more than one year, or by both. Nothing in this section shall prohibit a prosecution under Section 192 PC.
CA 387 Penal Code. Any corporation, limited liability company, or person who is a MANAGER with respect to a product, facility, equipment, process, place of employment, or business practice, is guilty of a public offense punishable by imprisonment and/or fine up to 16 months in State prison an/or $1,000,000 if defendant is a corporation or limited liability company if the MANAGER has management authority in or as a business entity and significant responsibility for any aspect of a business that includes actual authority for the safety of a product or business practice – has "actual knowledge" of a "serious concealed danger" that creates a substantial probability of death, great bodily harm, or serious exposure and DOES NOT WARN affected employees of the serious concealed danger.
The instructor and students were to assume that employer written policies and procedures stemmed from regulatory requirements and/or published prudent practices for the type of work being done. Therefore, a violation of the employer’s policies or procedures should be assumed to be a violation of regulatory requirements. Finally, it was assumed that any advice or recommendations made by Safety Officer III simply followed and re-stated the employer’s written policies and protocols in the Injury Illness Prevention Program (IIPP), Hazard Communication Program (HCP), Chemical Hygiene Plan, Bloodborne Pathogens, or Clandestine Laboratory Manual of Instructions and Procedures (CLMIP), etc.
All of the examples (below) were discussed in class. However, some questions were not discussed in detail because they were answered during previous discussion. During the class discussion, the author verbally summarized conclusions, and subsequently wrote down the conclusions for class review and approval. Thus, the answers below represent the class consensus on what we heard the instructor to say. As a general response, the class heard Mr. Kazanjian to say the following:
In general, when working within the scope of your employment and under the State Workers’ Compensation Program, it is very unlikely that any personal liability would attach even when including conduct where there may be some negligence. However, the legal theory underlying the "Be a Manager – Go to Jail" law applies to anyone who has authority to give orders (Safety Officer I and II) or make recommendations (Safety Officer III). The only caveat for Safety Officer III is that they must have "ostensible authority" to make recommendations (where the Safety Officer is more than a title, they are looked to for direction and advice). General workers who knowingly choose not to follow directions are not personally liable for injury they cause themselves but are subject to disciplinary procedures. Employers need to implement disciplinary procedures to preserve and assert any future defense based on an "independent employee act."