By Fred Walter
Governor Newsom has announced his proposed budget for 2020-2021 and it has some good news and some bad for Cal/OSHA. Under the Governor’s proposal, Cal/OSHA’s overall budget will increase by $12,107,000, or just over 8% to $168,661,000.
This will be split between the three arms of Cal/OSHA. The budget for the Standards Board, which adopts regulations, is slated to increase to $3,946,000. The Appeals Board, which hears appeals of citations, is expected to get $6,706,000. But the Division of Occupational Safety and Health (DOSH) is by far the elephant in the room. Its current budget of $146,743,000 is 24 times that of the Appeals Board and 41 times that of the Standards Board. Its budget for 2021 will be $158,009,000.
The largest piece of the DOSH pie (33%) will go to the Elevator Unit. Consultation, PSM, and the Pressure Vessel Unit each will receive an 8% increase while Mining and Tunneling will get 9%.
But here is where it gets weird. Compliance (also called Enforcement) – the folks who write the tickets and defend appeals by employers – will only get a measly 0.5%, raising its budget from $95,116,000 to $95,462,000. With the roll-out of the Covid-19 emergency temporary regulation – an historic, and historically complex, regulation – and with AB 685’s mandates also being added to their workload, why is Enforcement being short-changed?
Part of the answer lies in the myriad funding sources DOSH enjoys. California does not have to spend so much on Cal/OSHA because Fed/OSHA funds about 27% of Compliance’s budget. The Occupational Safety and Health Fund (more than $65,000,000 per year, paid as part of each employer’s workers’ compensation premium dollar) pays a major part of the remainder.
But this also comes at a time when Enforcement is trying to get back up to speed after promotional exam shenanigans a few years ago led the Office of Personnel Services to freeze all hiring. The results of the freeze are far-reaching and will be long lasting. The freeze is just now thawing, with the implementation of a hiring system run jointly by DOSH and OPS. Last year Enforcement had 60 open inspector positions. While they may have filled 40 or more of those slots with new hires, those folks will need training.
Aside from lacking boots on the ground, district managers are normally promoted from the ranks of inspectors. With seasoned inspectors in short supply and Boomers retiring at a steady clip the ranks of middle management have been decimated. Of the Division’s 26 district manager positions, only 16 are currently filled with permanent assignments. Some of these positions are being manned by “retired annuitants,” former CSHOs who have been lured back into service.
The personnel strain extends to DOSH’s clerical staff as well. At least one district office has no clerical staff. Others have been reduced to having their inspectors and acting district managers gather and copy files to respond to discovery requests. Other managers simply describe their staff off the record as “incompetent.”
DOSH’s legal units have also seen an exodus. In Southern California, 4 of its 9 attorney slots are empty. The Bureau of Investigations, DOSH’s criminal investigation arm within the legal unit, is shockingly understaffed. We understand that it has two investigators for all of Southern California and one part-time investigator for Northern California.
The dearth of personnel up and down DOSH’s chain is affecting the appeals process as well, driving the Appeals Board to delay setting appeals for hearing until the Division can get its arms around its appellate case load.
This does not mean that DOSH has lost its zeal for writing citations. It has not. What it does mean is that those citations are frequently based on hurried inspections and superficial reviews by managers. Which means more appeals. Which will drive the process deeper into the hole.
Conn Maciel Carey LLP