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To 1BY, Or Not To 1BY

By Lisa Prince, Walter & Prince, LLP - February 4, 2011

I just got off the phone with Employer Smith. I have never talked to him before; he had seen our website and just called with a "quick question." I should have told him that there are few quick answers in the law.

"I have this form that Cal/OSHA is saying I have to fill out," he said. "I have it all done but a friend just told me I should talk to a lawyer before sending it in."

I immediately flashed back to the webinar Amy Martin, Chief of Cal/OSHA's legal department participated in last week. You know, the one in which she described herself as a prosecutor. Three times.

Martin talked at length about the new Cal/OSHA 1BY form that has been developed to comply with AB 2774's amendments to Labor Code section 6432, and how Cal/OSHA intends to use it.

Among other things, the new law requires Cal/OSHA to attempt to enter into a dialogue with the employer once it is determined that one or more serious citations are going to be issued. The 1BY is Cal/OSHA's answer to that mandate. The front side of the form states the allegations against the employer. The employer is invited to fill in the back side with its explanation and return the form with any documentation it wishes to have considered within 15 days. Documentation includes evidence of training, inspections, supervision and anything else the employer believes will convince Cal/OSHA that a serious1 citation should not be issued.

The employer must sign the 1BY declaring its information to be true and correct.

As Employer Smith described the accident that led to Cal/OSHA's inspection and what his planned responses were, my mind was reeling. How can I get enough information during this call to be able to tell Employer Smith whether he can go ahead and send in the form? For that matter, how can I be sure that Employer Smith has all the information he needs to complete the form accurately? I reviewed my webinar notes as Employer Smith talked. A few of the positions taken by Ms. Martin jumped out:

Cal/OSHA sees this "dialogue" as allowing it to issue better, more defensible citations.

Cal/OSHA will fight any argument that statements on the form are not later admissible during appeal of the citation.

Cal/OSHA will fight any argument that a citation should be dismissed because Cal/OSHA does not consider the employer's information before issuing a serious citation.

For once, this quick question resulted in a quick answer: Employer Smith, do not return that form! Do not set yourself up for failure. Unless you are absolutely certain that the information you would provide is wholly accurate and not subject to re-interpretation at a later date, politely decline. I explained that he would have an opportunity to make his points in the appeal process after seeing Cal/OSHA's inspection file and once he had a better understanding of the allegations against him.

And, I added, the fact that you do not complete the form will not prevent you from defending the citations with this information later.

He was surprised. "What? How do you know that?" he asked. I responded that Labor Code section 6432(d) specifically says that no negative inference will be made if the employer chooses not to complete the 1BY.

"Well!" he said. "That's not on the form!" He is right.

1 This information may act as a defense to a serious classification and result in reclassification to general. The information will not result in complete withdrawal of a citation.

(Source: Permission to reprint by author, Walter & Prince, LLP, 1270 Healdsburg Ave., Suite 201, Healdsburg, CA 95448, Phone: 707-431-7900 / Fax: 707-431-7887, This email address is being protected from spambots. You need JavaScript enabled to view it.