BILL REQ. #:  H-3265.1 

Read first time 01/13/12.   Referred to Committee on Labor & Workforce Development.

     AN ACT Relating to increasing protections for employees under the Washington industrial safety and health act of 1973; amending RCW 49.17.160, 49.17.180, and 49.17.190; adding a new section to chapter 49.17 RCW; creating a new section; and prescribing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1   RCW 49.17.160 and 2010 c 8 s 12013 are each amended to read as follows:
     (1) No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or herself or others of any right afforded by this chapter, including reporting any injury, illness, or unsafe condition to the employer, agent of the employer, safety and health committee involved, or employee safety and health representative involved.
     (2) Any employee who believes that he or she has been discharged or otherwise discriminated against by any person in violation of this section may, within ((thirty)) one hundred eighty days after such violation occurs, file a complaint with the director alleging such discrimination. Upon receipt of such complaint, the director shall cause such investigation to be made as he or she deems appropriate. If upon such investigation, the director determines that the provisions of this section have been violated, he ((of [or])) or she shall bring an action in the superior court of the county wherein the violation is alleged to have occurred against the person or persons who is alleged to have violated the provisions of this section. If the director determines that the provisions of this section have not been violated, the employee may institute the action on his or her own behalf within thirty days of such determination. In any such action the superior court shall have jurisdiction, for cause shown, to restrain violations of subsection (1) of this section and order all appropriate relief including rehiring or reinstatement of the employee to his or her former position with back pay.
     (3) Within ninety days of the receipt of the complaint filed under this section, the director shall notify the complainant of his or her determination under subsection (2) of this section.

NEW SECTION.  Sec. 2   A new section is added to chapter 49.17 RCW to read as follows:
     (1) Upon request of a victim or victim's representative, the director must:
     (a) Meet with the victim or victim's representative regarding the inspection or investigation conducted under this chapter concerning the employee's injury or illness, including death. The meeting must take place before the director decides whether to issue a citation.
     (b) Provide to the victim or victim's representative:
     (i) A copy of any citation or report issued as a result of the inspection or investigation. The citation or report must be provided at no cost and provided on the later of the date the citation or report is received by the employer and the date of the request;
     (ii) Notification of any appeal filed under RCW 49.17.140 regarding a citation issued as a result of the inspection or investigation; and
     (iii) An explanation of the rights of employees and employee representatives to participate in the proceedings conducted under RCW 49.17.140.
     (c) Provide to the victim or victim's representative an opportunity to appear and make a statement before the parties conducting any settlement negotiations during reassumption of jurisdiction by the director or appeal before the board of industrial insurance appeals regarding a citation issued as a result of an incident resulting in death or serious injury. This opportunity must be provided before the director enters an agreement to withdraw or modify a citation. For purposes of this subsection, a "serious injury" is an injury or illness requiring hospitalization or resulting in a loss of one or more days of work.
     (2) The director shall establish procedures to inform victims and their representatives of their rights under this section and for the informal review of any claim of a denial of such a right.
     (3) For purposes of this section, "victim" means:
     (a) An employee who has sustained a work-related injury or illness that is the subject of an inspection or investigation conducted under this chapter; or
     (b) A family member of an employee, if as a result of a work-related injury or illness that is the subject of an inspection or investigation conducted under this chapter the employee is killed or cannot reasonably exercise the employee's rights under this section.

Sec. 3   RCW 49.17.180 and 2010 c 8 s 12015 are each amended to read as follows:
     (1) Except as provided in RCW 43.05.090, any employer who willfully or repeatedly violates the requirements of RCW 49.17.060, of any safety or health standard promulgated under the authority of this chapter, of any existing rule or regulation governing the conditions of employment promulgated by the department, or of any order issued granting a variance under RCW 49.17.080 or 49.17.090 may be assessed a civil penalty not to exceed ((seventy)) one hundred twenty thousand dollars for each violation. A minimum penalty of ((five)) eight thousand dollars shall be assessed for a willful violation. If the violation caused the death of an employee, the penalty may not exceed two hundred fifty thousand dollars but may not be less than fifty thousand dollars.
     (2) Any employer who has received a citation for a serious violation of the requirements of RCW 49.17.060, of any safety or health standard promulgated under the authority of this chapter, of any existing rule or regulation governing the conditions of employment promulgated by the department, or of any order issued granting a variance under RCW 49.17.080 or 49.17.090 as determined in accordance with subsection (6) of this section, shall be assessed a civil penalty not to exceed ((seven)) twelve thousand dollars for each such violation. If the violation caused the death of an employee, the penalty may not exceed fifty thousand dollars but may not be less than twenty thousand dollars, except that for an employer with twenty-five or fewer employees the penalty may not be less than ten thousand dollars.
     (3) Any employer who has received a citation for a violation of the requirements of RCW 49.17.060, of any safety or health standard promulgated under this chapter, of any existing rule or regulation governing the conditions of employment promulgated by the department, or of any order issued granting a variance under RCW 49.17.080 or 49.17.090, where such violation is specifically determined not to be of a serious nature as provided in subsection (6) of this section, may be assessed a civil penalty not to exceed ((seven)) twelve thousand dollars for each such violation, unless such violation is determined to be de minimis. If the violation caused the death of an employee, the penalty may not exceed fifty thousand dollars but may not be less than twenty thousand dollars, except that for an employer with twenty-five or fewer employees the penalty may not be less than ten thousand dollars.
     (4) Any employer who fails to correct a violation for which a citation has been issued under RCW 49.17.120 or 49.17.130 within the period permitted for its correction, which period shall not begin to run until the date of the final order of the board of industrial insurance appeals in the case of any review proceedings under this chapter initiated by the employer in good faith and not solely for delay or avoidance of penalties, may be assessed a civil penalty of not more than ((seven)) twelve thousand dollars for each day during which such failure or violation continues.
     (5) Any employer who violates any of the posting requirements of this chapter, or any of the posting requirements of rules promulgated by the department pursuant to this chapter related to employee or employee representative's rights to notice, including but not limited to those employee rights to notice set forth in RCW 49.17.080, 49.17.090, 49.17.120, 49.17.130, 49.17.220(1), and 49.17.240(2), shall be assessed a penalty not to exceed ((seven)) twelve thousand dollars for each such violation. Any employer who violates any of the posting requirements for the posting of informational, educational, or training materials under the authority of RCW 49.17.050(7), may be assessed a penalty not to exceed ((seven)) twelve thousand dollars for each such violation.
     (6) For the purposes of this section, a serious violation shall be deemed to exist in a work place if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use in such work place, unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.
     (7) The director, or his or her authorized representatives, shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the number of affected employees of the employer being charged, the gravity of the violation, the size of the employer's business, the good faith of the employer, and the history of previous violations.
     (8) Civil penalties imposed under this chapter shall be paid to the director for deposit in the supplemental pension fund established by RCW 51.44.033. Civil penalties may be recovered in a civil action in the name of the department brought in the superior court of the county where the violation is alleged to have occurred, or the department may utilize the procedures for collection of civil penalties as set forth in RCW 51.48.120 through 51.48.150.
     (9) The director shall adjust the civil penalty amounts in this section at least once every four years beginning on the effective date of this section to account for the percentage increase or decrease in the consumer price index for all urban wage earners compiled by the bureau of labor statistics, United States department of labor during such period.

Sec. 4   RCW 49.17.190 and 2011 c 96 s 40 are each amended to read as follows:
     (1) Any person who gives advance notice of any inspection to be conducted under the authority of this chapter, without the consent of the director or his or her authorized representative, shall, upon conviction be guilty of a ((gross misdemeanor)) class C felony and be punished by a fine of not more than ((one)) two hundred fifty thousand dollars or by imprisonment for not more than ((six months)) two years, or by both.
     (2) Whoever knowingly makes any false statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained pursuant to this chapter shall, upon conviction be guilty of a ((gross misdemeanor)) class C felony and be punished by a fine of not more than ((ten)) two hundred fifty thousand dollars, or by imprisonment for not more than ((six months)) five years or by both.
     (3) Any employer who ((wilfully)) willfully and knowingly violates the requirements of RCW 49.17.060, any safety or health standard promulgated under this chapter, any existing rule or regulation governing the safety or health conditions of employment and adopted by the director, or any order issued granting a variance under RCW 49.17.080 or 49.17.090 and that violation caused death to any employee shall, upon conviction be guilty of a ((gross misdemeanor)) class B felony and be punished by a fine of not more than ((one)) two hundred fifty thousand dollars or by imprisonment for not more than ((six months)) ten years or by both; except, that if the conviction is for a violation committed after a first conviction of such person, ((punishment shall be)) such person upon conviction shall be guilty of a class A felony punishable by a fine of not more than two hundred fifty thousand dollars or by imprisonment for not more than ((three hundred sixty-four days)) twenty years, or by both.
     (4) Any employer who willfully and knowingly violates the requirements of RCW 49.17.060, any safety or health standard promulgated under this chapter, any existing rule or regulation governing the safety or health conditions of employment and adopted by the director, or any order issued granting a variance under RCW 49.17.080 or 49.17.090 and that violation caused serious bodily injury to any employee but did not cause death to any employee shall, upon conviction, be guilty of a class C felony and be punished by a fine of not more than two hundred fifty thousand dollars or by imprisonment for not more than five years or by both; except, that if the conviction is for a violation committed after a first conviction of such person, such person upon conviction shall be guilty of a class B felony punishable by a fine of not more than two hundred fifty thousand dollars or by imprisonment for not more than ten years, or by both.
     (5) Any employer who has been issued an order immediately restraining a condition, practice, method, process, or means in the work place, pursuant to RCW 49.17.130 or 49.17.170, and who nevertheless continues such condition, practice, method, process, or means, or who continues to use a machine or equipment or part thereof to which a notice prohibiting such use has been attached, shall be guilty of a ((gross misdemeanor)) class C felony, and upon conviction shall be punished by a fine of not more than ((ten)) two hundred fifty thousand dollars or by imprisonment for not more than ((six months)) five years, or by both.
     (((5))) (6) Any employer who shall knowingly remove, displace, damage, or destroy, or cause to be removed, displaced, damaged, or destroyed any safety device or safeguard required to be present and maintained by any safety or health standard, rule, or order promulgated pursuant to this chapter, or pursuant to the authority vested in the director under RCW 43.22.050 shall, upon conviction, be guilty of a ((misdemeanor)) class C felony and be punished by a fine of not more than ((one)) two hundred fifty thousand dollars or by imprisonment for not more than ((ninety days)) two years, or by both.
     (((6))) (7) Whenever the director has reasonable cause to believe that any provision of this section defining a crime has been violated by an employer, the director shall cause a record of such alleged violation to be prepared, a copy of which shall be referred to the prosecuting attorney of the county wherein such alleged violation occurred, and the prosecuting attorney of such county shall in writing advise the director of the disposition he or she shall make of the alleged violation.

NEW SECTION.  Sec. 5   Sections 3 and 4 of this act apply to violations committed after the effective date of this section.