Preview
EKDORSED
1 JACKSON LEWIS P.C.
JAMES T. JONES (SBN 167967) 2020 JAN-3 PM 3=33
2 ASHLEY L. HOFFMAN (SBN 308727)
400 Capitol Mall, Suite 1600 ••UPERIOR COURT OF CALIFORNIA
3 COUNTY OF SACRAHtNlO
Sacramento, Califomia 95814
Telephone: (916)341-0404
4 Facsimile: (916) 341-0141
Email: iames.iones@iacksonlewis.com
5 ashlev.hoffiT>an(5),jack:sonlewis.com
6 Attomeys for Defendant
LIQUI-BOX CORPORATION
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SACRAMENTO
10 SAJIDA ZAMAN, CASE NO. 34-2019-00252121-CU-WT-GDS
11 Plaintiff, DECLARATION OF ASHLEY L.
HOFFMAN IN SUPPORT OF
12 DEFENDANT'S OPPOSITION TO
PLAINTIFF'S MOTION FOR LEAVE TO
13 LIQUI-BOX CORPORATION, and DOES 1 FILE FIRST AMENDED COMPLAINT
through 20, inclusive,
14 DATE: January 16,2020
Defendants. TIME: 2:00 p.m.
15 DEPT.: 53
16
Complamt Filed: March 8, 2019
17 Trial Date: None Set
18
19 I, Ashley L. Hof&nan, declare: BY FAX
20 1. I am an attomey at law licensed to practice before all courts of the State of California, and
21 I am an associate in the law firm of Jackson Lewis P.C, attomeys of record for Defendant Liqui-
22 Box Corporation ("Defendant") in this action. I have personal knowledge of the facts and
23 circumstances set forth herein, and if called upon to testify, I could and would competently testify
24 hereto.
25 2. Defendant filed its answer to Plaintiffs March 8, 2019 complaint on or about May 6,
26 2019.
27 3. Attached hereto as Exhibit A is a true and correct copy of the HR Status Change Form
28 contained in Plaintiffs personnel file that was produced in this action.
1
DECLARATION OF ASHLEY L. HOFFMAN IN SUPPORT OF DEFENDANT'S OPPOSITION TO
PLAINTIFF'S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT
1 4. In or around February 2019, Defendant received a letter firom Plaintiffs counsel
2 requesting copies of her persormel file and age statements. In Febmary 2019 Defendant mailed
3 documents to Plaintiffs counsel in response to that letter. Those documents included Exhibit A
4 that is attached hereto as well as Exhibit A to the declaration of David Fmth, which were
5 subsequently bates-labeled as LBC000051 and LBC000052 and produced in this litigation on or
6 about June 7, 2019.
7 5. On or about November 20, 2019, I received an email communication from Plaintiffs
8 counsel. The email asked if Defendant would stipulate to Plaintiff amending her complaint to
9 allege a cause of action under California's Unfair Competition Law based on the allegation that
10 the Critical Safety Behaviors Policy violates the record-keeping/reporting requirements in 29
11 C.F.R. 1904.35 et seq. applicable to the Occupational Safety and Health Act. A tme and correct
12 copy of that email is attached hereto as Exhibit B.
13 6. I subsequently responded to Plaintiffs counsel stating that Defendant would not stipulate
14 to that amendment because Defendant believes its policy is lawful.
15 7. On December 30, 2019, I accessed the United States Department of Labor's
16 Memorandum from Dorothy Dougherty to the OSHA Regional Administrators and State
17 Designees entitled "Interim Enforcement Procedures for New Recordkeeping Requirements
18 Under 29 CFR 1904.35" (November 10, 2016) on the United States Department of Labor's
19 website: https://www.osha.gov/dep/memos/recordkeeping memo 11102016.html. Attached
20 hereto as Exhibit C is a tme and correct copy of that memorandum.
21 I declare under penalty of perjury under the laws of the State of Califomia that the
22 foregoing is true and correct.
23 Executed this 3rd day of January, 2020 at Sacramento, Califomia.
A s h l ^ ^
25 ^
26
27
28
2
DECLARATION OF ASHLEY L. HOFFMAN IN SUPPORT OF DEFENDANT'S OPPOSITION TO
PLAINTIFF'S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT
EXHIBIT A
L.iQoe-Bo>
DESIGN. CONNECT. OEUV'.
HR Status Change horm
Erhpioyee Name: Sajida Zaman
SECTION 1 - EMPLOYEE
Date of Hire: 12/09/2003 Birth Date: M/D/Y Sex (M or F):
Social Insurance Number. Home Phone Number:
Direct Deposit info
Home Address:
Emergency Contact (Name, Relationship, Address and Phone):
SECTION 2 - JOB INFORMATION
Effective Date: Position Title: Inspector - Packer
Department: Production
SECTION 3 - EMPLOYMENT STATUS
Previous Employment Status - Check one: New Employment Status - Check one:
la Fulltime • Temporary/Contract • Fulltime • Temporary/Contract
• Part time • Other: • Part time • Other Exempt
SECTION 4 ^ WAGE/ SALARY
Effective Date: M/D/Y
Cun-ent Wage / Salary: New Wage / Salary:
SECTION 5 - REASON FOR CHANGE
• New Hire/Rehire • Illness/Disability (not covered by WC)
• Wage / salary increase • Illness/Disability (covered under WC)
• Unpaid Leave (type: • Pnjmotion/Transfer
• Employee Initiated personal info change E! Terminatfon/Reslgnation
SECTION 6 - TERMINATION/LEAVE
Date of actual last day worked: 01/03/2019 Tenninatton Date: 01/10/2019
Vacation Owing: Termination Pay, if applicable:
Leave or Termination Reason: See below Date of planned retum, if applicable:
• All company property has been retumed
Additional Comments: Involuntary - Violation of Critical Safety Behaviors - Neglected to report injury timely
SECTION 7 - AUTHORIZATION
Immediate Manager's Signature:, Date: | iQ ^Ol^
Employee Signature: Date:
LBC000051
EXHIBIT B
Hoffman, Ashley Lynn (Sacramento)
From: Joshua Falakassa
Sent Wednesday, November 20, 2019 12:52 PM
To: Hoffman, Ashley Lynn (Sacramento); Jones, James T. (Sacramento)
Cc: Arash Khosrowshahi
Subject: Zaman v. Liqui-Box—Stipulation to File First Amended Complaint
Categories: Filed to ND
Filinglndicaton -1
Ms. Hoffman and Mr. Jones,
Plaintiff intends to amend her individual complaint to allege additional facts and a cause of action under Business and
Professions Code sectionl7200 et seq for Defendant's violation of OSHA. ("UCL"). Plaintiff seeks to allege that
Defendant's "Critical Safety Behaviors" procedure/policy is in violation ofthe new Occupational Safety and Health
Administration ("OSHA") rules/regulations concerning occupational injury/illness record-keeping/reporting and anti-
retaliation/discrimination provisions (See 29 CFR 1904.35 et seq. and Section 11(c) ofthe OSH Act)
Specifically, Plaintiff's First Amended Complaint will allege that Defendant's "Critical Safety Behaviors" policy is not a
reasonable reporting procedure as it pertains to the "time and means" for filing a report of an injury or illness.
As stated in the OSHA enforcement guidelines, a procedure is reasonable "if the procedure requires employees to report
a work-related injury or illness as soon as practicable after the employee realizes that he or she has a work-related injury
or illness that should be reported to the employer. However, it is not a reasonable time requirement if the employer has
a rigid prompt-reporting requirement that disciplines employees for late reporting when the employee could not have
realized that he or she has a work-related injury or illness. The employer's time requirement for reporting an injury or
illness must take into account situations in which employees cannot reasonably be expected to discover their injuries or
illnesses within a rigid reporting period. For a reporting procedure to be reasonable it must allow for reporting of work-
related injuries and illnesses within a reasonable time after the employee has realized that he or she has suffered the
kind of work-related injury or illness the employer's procedure requires employees to report." (Section 1904.35(b)(l)(i)))
(See https://www.osha.gov/dep/memos/recordkeeping_memo_11102015.html)
Here, Plaintiff will allege that Defendant's procedure requires employees to "immediately report" all incidents.... without
exception." Therefore, the procedure is unreasonably rigid as it pertains to the "time" by which employees are required
to report injuries/illness, and fails to take into account situations in which employees cannot reasonably be expected to
discover their injuries or illnesses, as required by the OSHA regulations. Further, Plaintiff will allege that Defendant's
procedure failed to adequately inform employees of their right to report and prohibition against
discharge/discrimination for reporting.(Section 1904.35(b)(l)(iii)) Finally, Plaintiff will allege that Defendant's
termination of Plaintiff for her "neglect to report injury timely" violates Section I I C ofthe OSH Act and Section
1904.35(b)(l)(iv) which states that employers "must not discharge or in any manner discriminate against any employee
for reporting a work-related injury or illness.".
In light of our continued working relationship, we request that you stipulate to the filing of the First Amended Complaint
to allege these facts and a new cause of action under the UCL Although leave to amend is granted liberally and no
prejudice will result, we hope to prevent any unnecessary court intervention.
Please advise no later than Friday, November 22, 2019, if you are amenable to a stipulation and we will forward you a
Proposed First Amended Complaint for your review/consideration.
We look forward to hearing from you.
Best Regards,
Joshua Falakassa, Esq.
FALAKASSA LAW, P.C.
Joshua S. Falakassa, Esq.
1901 Avenue of the Stars, Suite # 450
Los Angeles, CA 90067
Direct: (818) 456-6168
Fax: (888) 505-0868
www.falakassalaw.com
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named addressee. Unless you are the addressee of this message you may not use, copy or disclose the contents ofthis
message to anyone. If you have received this message in error, please delete the message and advise the sender by
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UNITED STATES
DEPARTMENT OF LABOR
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OSHA Enforcement / Interim Enforcement Procedures for New Recordkeeping Requirements Under 29 CFR 1904.35
To the extent the guidance In this memorandum conflicts with the October 11, 2018 memorandum that provides further
guidance on the
basic principles of these requirements, the October 11, 2018 memorandum supersedes this guidance.
Occupational Safety and Health Administration
U.S. Department of Labor Washington, D.C. 20210
Reply to the attention of:
November 10, 2016
MEMORANDUM FOR: REGION/M. ADMINISTRATORS
STATE DESIGNEES
THROUGH: DOROTHY DOUGHERTY
Deputy Assistant Secretary
FROM:
THOMAS GALASSI, Director
Directorate of Enforcement Programs
SUBJECT: Interim Enforcement Procedures for New Recordkeeping Requirements Under 29 CFR 1904.35
This memorandum establishes interim procedures for enforcing new provisions in OSHA's occupational injury and illness recordkeeping regulation, 29 CFR 1904.35,
Employee involvement. Employers are required to establish and Inform employees of their reasonable procedure for reporting work-related injuries and illnesses
and are prohibited from discharging or retaliating against an employee who reports a work-related Injury or illness.
I. Overview of New Regulations and Procedures
On May 12, 2015, OSHA issued a final rule revising its occupational injury and illness recordkeeping and reporting requirements in 29 CFR 1904.35, Employee
involvement Changes to Section 1904.35 became effective on August 10, 2016. However, the Agency delayed enforcement of those provisions until December 1,
2016. The new provisions addressed In these Interim Enforcement Procedures require employers to have a reasonable procedure for reporting work-related
injuries and illnesses and to inform employees of that procedure and of their right to report work-related injuries and illnesses free from discrimination/retaliation.
Also, the new rule prohibits employers from discriminating or retaliating against any employee who reports a wori<-related injury or illness. (See Appendix A,
Summary of New Requirements.)
The new rule also includes changes to Section 1904.41, Elecb-onic Submission of Injury and Illness Records to OSHA. Those provisions are not effective until
January 1, 2017 and are not addressed in this memorandum. The complete final rule can be viewed at 92 FR 29624-29694, Improve Traddng of Workplace
Injuries and Illnesses.
The National Office has established these Interim Enforcement Procedures to ensure that OSHA field offices are prepared for the receipt of complaints related to
the new provisions. They are interim enforcement guidance that will be evaluated and adjusted after the new provisions are in effect.
Specifically, these Interim Enforcement Procedures provide guidance to the Area Offices for enforcement ofthe new requirements in the recordkeeping sections
1904.35(b)(l)(l),(il), and (iii). Included in these Interim Procedures are Spedal Interim Procedures for enforcing tiie new anti-retaliation provision in section
1904.35(b)(l)(lv) and for making administrative referrals to the Whistieblower Protection Program (WPP) In the Regions for pre-citation consultation and
investigation. These interim procedures follow procedures contained in the Reld Operations Manual (FOM), Chapters 3 and 9.
Concurrent with these Interim Enforcement Pnacedures, the National Office has established Interim Investigation Procedures to ensure that complaints are property
investigated by the WPP. (See Appendix B, Interim Investigation Procedures for Section 29 C.F.R. 1904.35(b)(l)(iv).) Those procedures provide guidance to tiie
WPP for conducting an expedited investigation.
Collectively, these Interim procedures address the separate responsibilities of the WPP and the Area Offices for enforcement of the new anti-retaliation provision.
Among other things, Area Offices have responsibility for following the FOM in determining when an inspection is opened, entering data into OIS, and preparing the
citation package. The WPP has responsibility for investigating the retaliation complaints, recommending whether or not to issue a dtation, and determining make-
whole remedies when appropriate. The procedures provide for coordination between Area Offices and the WPP on matters such as sharing of relevant information
and resolution of citations through informal settiements.
I I . Enforcement and Citation Guidance for Violations of 1904.35(b}(l}(i),(ii), and (ill).
The following is a summary of the enforceable requirements and the inspection and citation guidance for these provisions:
A Enforcement Guidance.
Sedion 1904.35(b)(l}(i)
Establish reasonable reporting procedure. This provision requires that an employer must establish a reasonable procedure for employees to report work-
related Injuries or illnesses promptiy and accurately. While the new regulation uses the word "procedure," the basic requirement is the same as the previous
regulation, which required that the employer must set up "a way" for employees to report work-related injuries and illnesses. The new pnavislon states that "a
procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness." The regulation does
not require that the procedure be In writing.
Evidence to establish a violation is based on whether the employer's procedure is unduly burdensome and/or would discourage a reasonable employee from
reporting. The test of "reasonable" is an objective test: would the procedure discourage a reasonable employee from reporting?
Under these Interim Enforcement Procedures, OSHA will only issue citations under section 1904.35(b)(l)(i) if the employer's procedure regarding the time
and means for filing a report of an injury or illness is "unreasonable." The "time" and "means" refers to when and how the employer's procedure requires
employees to report injuries and illnesses.
For example, It is a reasonable time (when) requirement if the procedure requires employees to report a work-related Injury or illness as soon as practicable
after the employee realizes that he or she has a work-related injury or illness that should be reported to the employer. However, It Is not a reasonable time
requirement if the employer has a rigid prompt-reporting requirement that disciplines employees for late reporting when the employee could not have realized
that he or she has a work-related injury or illness. The employer's time requirement for reporting an injury or Illness must take into account situations in which
employees cannot reasonably be expected to discover their injuries or illnesses within a rigid reporting period. For a reporting procedure to be reasonable It
must allow for reporting of work-related injuries and illnesses within a reasonable time after the employee has realized that he or she has suffered the kind of
work-related injury or illness the employer's procedure requires employees to report.
It is a reasonable means (how) requirement If the procedure requires employees to report: a work-related Injury or illness by reasonable means, such as by
phone, email, or in person when practicable. However, it is not a reasonable means requirement if the procedure requires the employee to report the injury or
illness in person at a location remote from his or her worienefit] [d&aibe any otiter adverse action.]
A citation must be issued by [DA TE].
When the Axea Office determines an inspection is warranted, the Area Office will follow the protocols currentiy In place for referral of a retaliation
complaint to the WPP. The Area Office will send the completed OSHA 7 to tiie WPP and identify the refen^l as a potential violation of 1904.35(b)(l)(iv).
(See C, Opening Conference, below for further notification to the WPP after opening conference.)
2. Complaintftomformer employee.
OSHA anticipates that the Area Office may receive complaints from former employees, or representatives, alleging that a former employee was terminated
or forced to quit because he or she reported a work-related Injury or Illness. The complaint will be treated as a potential 11(c) complaint and will be
referred to the WPP consistent with the current procedure in each Region.
Additionally, the complaint will be treated as a potential violation of 1904.35(b)(l)(lv). The /Vrea Office will attempt to obtain the following information:
• Name of employee making the allegation, induding all contact information, home address, phone numbers;
• Name and address of employer;
• Reason for separation from job: When (date) was employee separated from job (for purposes of calculation of the six-month statute of limitations it is
important to have as an exact date as possible of when the employee quit or was terminate); was the employee fired; what reason did the employer
give the employee for the termination; why does the employee think he or she was terminated; if the employee left the employment what was the
reason.
• Report of injury or illness: What did the employee report; describe injury or Illness that employee reported; how did the injury occur; when (date) did
employee report the injury or illness; name of person to whom employee report;ed injury or illness.
The above Infonnation will be documented on the OSHA 7 and provided to the WPP for a determination as to whether a reasonable basis exists for
believing that a violation of 1904.35(b)(l)(iv) could have occurred. The information will be provided to the WPP follov\ring current procedure for referral of
a whistieblower complaint in each Region. After the WPP has received the information (within two days, if possible), the WPP will make such a
determination and, if appropriate, refer to the Area Office for opening an Inspection pursuant to the FOM, Chapter 9, Section I.C.8. Within 5 days of
receipt of the referral from the WPP, the Area Office will open an inspection. If the WPP determination is that no reasonable basis exists for believing a
violation of section 1904.35(b)(l)(iv) could have occurred, the Area Office will not open an inspection and will inform the former employee.
3. Complaint from a non-aggrieved employee.
OSHA antidpates that the Area Office may receive an allegation of potential non-compliance with section 1904.35(b)(l)(iv) from an individual, or entity,
other than someone who claims to have been retaliated against by the employer based on the report of a work-related injury or illness. In such situations,
the Individual/entity making the allegation may not have the identity/name of an individual who may have been subject to the retaliation. OSHA will
Inquire as to whether the non-aggrieved employee can obtain the identity of an aggrieved employee. If that individual is identified the complaint will be
handled as outiined above, based on the status as a current or former employee. If the identity/name of an individual cannot be determined, OSHA will
ti-eat the complaint as a non-formal complaint and follow current FOM procedures for a phone/fax. A referral to the WPP may be appropriate dependent
on the outcome of the phone/fax.
4. Complaint provided to CSHO while conducting on-site safety and health inspection.
If, during the conduct of a safety and health inspection, the CSHO Is Informed of an allegation related to a potential violation of the anti-retaliation
provision at section 1904.35(b)(l)(iv), the CSHO will handle each complaint based on these Special Interim Procedures depending on whether it is a
complaint from a current or former employee.
5. Referral from the WPP.
There may be occasions when the WPP receives directiy from a complainant an allegation of retaliation because he or she reported a wori<-related injury
or illness and the allegation has not been filed with the Area Office. Pursuant to tiie FOM, Chapter 9, Section I.C.8, the WPP will refer the complaint to the
Area Office for a determination about whether an inspection is warranted. The Area Office will handle each case based on these Special Interim
Procedures, depending on whether it is a complaint from a current or former employee.
C Opening Conference.
During the opening conference, the CSHO will follow established procedure and present a copy of the OSHA 7 on which the complainant's name has been
withheld. The CSHO will explain that the investigation of the retaliation complaint will be handled by a Whistieblower (WB) Investigator and that shortiy after
the opening conference a WB Investigator will contact a representative of the company. The CSHO will identify the name of the company representative and
his or her contact infonnation. There may be occasions when, based on discussions between the Area Office and the WPP, the partidpation ofthe WPP may
be appropriate at tiie opening conference.
The CSHO will conduct a review of records. In addition to the OSHA logs for the past 5 years, the CSHO will obtain any documentation related to the report:ed
Injury that is the basis of the retaliation/diSCTimination allegation, and any other document relevant to the complaint of retaliation.
After the inspection, within one business day when practicable, the Area Office will notify the WPP that the inspection has been opened and will provide copies
ofthe OSHA 300 logs and any other relevant documentation. The Area Office will identify the Point of Contact in the Area Office for future coordination, who
will be the contact for a request from the WPP to obtain information that may be available from the employer onsite.
D. Interim Investigation Procedures Foiiowing Referral from the Area Office to the WPP.
The WPP will conduct an Investigation to determine whetiier the facts are sufficient to support an Issuance of a dtation under section 1904.35(b)(l)(Iv). The
WPP will follow its Interim Investigation Procedures for gathering evidence, analyzing the merits of the allegation, reaching a recommendation regarding tiie
determination of retaliation or discrimination, and recommending the appropriate remedies, induding back wages when appropriate. It Is not Intended that the
investigation will be a joint investigation.
E. Conclusion of the WPP Investigation of Potential Violation of Section 1904.35(b)(l)(iv).
When the WPP Investigation has been concluded, regardless of the recommended determination, the WPP will forward a Memorandum of Investigation (MOI),
along with the evidentiary materials, via e-mail or hard copy, to the Area Office. The Area Office will incorporate the fonwarded materials Into the enforcement
case file and maintain the records in accordance with normal procedures.
If the investigation leads to a recommendation not to Issue a citation under 1904.35(b)(l)(iv), the WPP will notify the Area Office via the MOI that "The WPP
does not recommend issuing a dtation under section 1904.35(b)(l)(iv)." The Area Office will take the necessary steps to record this finding in OIS. If the WPP
continues to investigate the matter under section 11(c), the notification will also state, "However, this recommendation should not be viewed or interpreted to
mean that the WPP has made any determination regarding the merit of any con-esponding section 11(c) matter. The WPP continues to Investigate this matter
under section 11(c)."
If the WPP does recommend Issuing a dtation under 1904.35(b)(l)(iv) based on afindingthat reasonable cause exists to believe that section 1904.35(b)(1)
(iv) was violated, the WPP will forward the MOI to the Area Office for indusion in the enforcement file and fbr use in the issuance of dtations. The MOI will
indude recommendations for remedies for the aggrieved employee, which could include back wages, removal of dlsdplinary actions, and recommendations for
abatement of any underiying policy or procedure that is related to the merit determination.
As stated below, the Area Office will assess a penalty for the dtation.
After receipt of the MOI from the WPP, and consultation as necessary with the WPP, the Area Office will hold a dosing conference with the employer. This
dosing conference can be done by telephone.
F. Issuance of Citation and Penalty Policy.
If the AO detenmlnes, after consultation with the WPP, that a citation should be issued, the AO will prepare and issue the citation. The AO is responsible for
ensuring the necessary information is entered into OIS and drafting/issuing any citations, with input from tiie WPP.
An otiier-than-serious citation of Section 1904,35(b)(l)(iv) will normally be Issued if an employer discharges or in any manner disaiminates against any
employee for reporting a work-related injury or illness. The gravity-based penalty for this violation will normally be $5,345. If the Area Director determines
that it Is appropriate to achieve the necessary deterrent effect, the unadjusted penalty may be up to $12,471.
Abatement The dtation must Indude remedies for the aggrieved employee, such as back wages, removal of disciplinary action, reinstatement of lost time and
wages, etc., where appropriate. This abatement will be based on the recommendations received from the WPP. Also, the dtation must indude the means for
abatement of the underiying policy or procedure that is related to the merit determination.
G. Informal Conference/Settlement.
If an employer requests an Infomial Conference regarding the dtation issued for a violation of 1904.35(b)(l)(iv), the Area Office will consult with the WPP
regarding partidpation In the conference. Partidpation can be in person, by telephone, or video conference. Preparation for the informal conference should
indude a discussion on setiJement parameters. Among other things, the Area Office/WPP should be prepared to discuss remedies induding back wages and
other make-whole remedies for the aggrieved employee, As necessary, consultation with the RSOL may be sought.
The Area Office/WPP will consult with the aggrieved employee before the informal conference to advise him or her that the employer has requested the
conference and to discuss settiement parameters. The Area Office/WPP will tell the employee that, if settiement within the discussed parameters seems likely,
the Area Director/WPP will contact the employee to discuss beforefinalizingthe settiement terms. If a settiement is reached, the Area Office, In consultation
with the WPP, will prepare the Informal Settiement Agreement (See Appendix C, Template - Informal Settiement Agreement.)
IV. Data Collection and Input into OIS.
Complaints received by the Area Office will follow the standard procedures for complaint intake. To help aid in tracking the number of complaints received for a
1904.35(b)(1) violation, indude the standard number that is allegedly violated in the text field of the "Hazard Description and Location." At a minimum,
"1904.35(b)(1)" needs to be induded in the text field in order to fadlltate tracking in OIS.
EXAMPLE:
1904.35(b)(l)(iv): Employer has discharged or in some manner discriminated against an employee for reporting a wok-related injury or illness.
V. Federal Agencies.
All Federal Executive Branch agencies regardless of location (including those overseas), size, or industry classification must collect and maintain OSHA-required
Injury and illness data. In addition, with the updates to 29 CFR 1960 on August 5, 2013, Federal agendes were required to annually submit that data to the
Department of Labor. Each agency must submit to the Secretary by May 1 of each year all infomnation induded on the agency's previous calendar year's
occupational injury and illness recordkeeping forms. Currentiy, Federal agendes submit their data through BLS, either by entering the data directiy on-line or
uploading a flat-file of their data.
The revised reporting requirements of 29 CFR 1904.35 are applicable to all Federal agencies, no matter their location.
NOTE: OSHA has also developed a document that answers common questions conceming Federal agencies' recordkeeping. (See Frequently Asked Questions for
OSHA's Injury and Illness Recordkeeping Rule for Federal Agendes.)
VI. Outreach.
To ensure that the public is informed of the new requirements under 29 C.F.R. 1904.35, OSHA Is engaging In outreach to industry and interested parties. Area
Offices are encouraged to conduct their own outreach initiatives. For further information and resources, please see the OSHA website at
https://www.osha.gov/recordkeeping/finalrule/index.html.
If you have any questions regarding these new requirements and the enforcement plan, please contact the Directorate of Enforcement Programs, Office of General
Industry and Agricultural Enforcement.
Resources:
OSHA Poster: http://vmw.osha.gov/Publications/poster.html
Recordkeeping Home Page: http://wvw.osha.gov/recorelkeeping/index.html
Recordkeeping Tutorial: http://www.osha.gov/recordkeeping/tutorial.html
Appendixes:
A Summary of New Requirements of Section 1904.35
B. Interim Investigation Procedures for Section 29 C.F.R. 1904.35(b)(l)(Iv)
C Template - Informal Settiement Agreement
APPENDIX A
Summary of New Requirements of Section 1904.35
Summary of New Requirements of Section 1904.35: Empioyee Involvement and Prohibition Against Discrimination.
One of the goals of the final rule is to ensure the completeness and accuracy of Injury and illness data collected by employers and submitted to OSHA. The final
rule is intended to promote accurate recording of work-related injuries and illnesses by preventing the under-recording that arises when workers are discouraged
from reporting these occurrences. The rule establishes an additional mechanism for OSHA to enforce the existing prohibition on employer retaliation against
employees. Therefore, Section 1904.35 contains new requirements intended to promote complete and accurate reporting of work-related injuries and illnesses.
Section 1904.35(a) Basic requirement- retains the requirement that an employer must involve employees and their representatives in the recordkeeping system by
Informing each employee how to report an illness or injury and providing access to employees and employee representatives of the employer's injury and Illness
records.
The new rule darifies that the Injuries and illnesses refen-ed to in 1904,35(a)(l) are work- related injuries and illness. Also,tiienew mle clarifies that tiie
employer, when informing each employee how to report a work related injury or Illness, must provide specific information contained in new section (b)(l)(lii).
Section 1904.35(b)(1) Implementation - retains the requirement that an employer must set up a way for employees to report wortc related injuries and illnesses.
The new rule clarifies that an employer "must establish a reasonable procedure for employees to report work-related injuries and illnesses promptly
and accurately. A procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace
injury or Illness."
Section 1904.35(b)(ii) maintains the requirement that the employer must tell each employee how to report a woric-related injury or illness but now requires that
each employee be informed of the "procedure" for reporting a work-related injury or illness.
Section 1904.35(b)(l)(iii) adds a new provision requiring employers to "inform each employee that employees have the right to report work-related
injuries and illnesses" and prohibiting employers "from discharging or in any manner discriminating against employees for reporting work-related
injuries or illnesses."
Section 1904.35(b)(l)(iv) is a new provision stating that employers "must not discharge or in any manner discriminate against any employee for -
reporting a work-related injury or Illness." While this provision is new in the recordkeeping regulation, this provision is consistent with the existing
prohibition in Section 11(c) of the OSH Act, which prohibits employers from retaliating against employees for reporting work-related Injuries and illnesses.
The new Rule also provides:
1904.36 Prohibition against discrimination
In addition to 1904.35, section 11(c) ofthe OSH Act also prohibits you from discriminating against an employee for reporting a woric related fatality, injury, or
illness. That provision of the Act also protects the employee v^o files a safety and healtii complaint, asks for access to the part 1904 records, or otherwise
exerdses any rights afforded by the OSH Act.
This provision Is not citable as it repeats the current prohibition addressed in Section 11(c) of the OSH Act.
APPENDIX B
Interim Investigation Procedures for Section 29 C.F.R. 1904.35(b)(l)(iv)
(5seOSHA Memorandum, November 10, 2016)
APPENDIX C
Template - Informal Settlement Agreement
NOTE: The AO can use its standard ISA. This template is intended to inciude some ofthe provisions that may be Induded as abatement ofthe 1904.35(b)(lXiv)
dtation. The AO will consult with the WPP regarding the tenvs of the abatement and it Is strongly recommended that RSOL be consulted before execution of these
agreements.
INFORMAL SETTLEMENT AGREEMENT
The undersigned Employer and tiie undersigned Occupational Safety and Health Administration (OSHA), in settiement of the above citation(s) and penalties which
were issued on *****, 20***, hereby agree as follows:
1. The Employer accepts the Citation and Notification of Penalties as issued on ******. [or Employer and OSHA agree to amend the Qtation and Notification of
Penalties as below:]
2. The Employer agrees to pay the penalty of $XXXX within 10 working days of the date this Informal Settlement Agreement is signed. Payment will be made
elecb-onically at www.pay.gov or with a check or money order payable tp "DOL-OSHA", and mailed to U.S. Dept. of Labor — OSHA, [tvea Office Address].
3. The Employer agrees to fully abate the dtation by taking the following actions:
a. The Employer agrees to pay [the name of the employee] $ In back pay (less normal payroll deductions). The Employer shall submit appropriate
documentation to the Social Security Administration allocating back pay to the appropriate calendar quart:ers. [OR Employer agrees to pay [the employee's
name] a lump sum of $ .] Any check shall be made payable to [the name of the employee] and mailed to U.S. Dept. of Labor - OSHA, [Area Office
Address];
b. The Employer shall expunge any references from [the name of the employeej's personnel records relating to the adverse action and shall not make any
references relating to the adverse action in any future requests for employment references;
c Should any third parties, Induding prospective employers, inquire as to the employment of [the employee's name], the Employer agrees to refrain from
any mention of [the employee's name]'s protected activity. The Employer agrees that nothing will be said or conveyed to any third party tiiat could be
construed as damaging the name, character, or employment of [the employee's name];
d. The Employer agrees to change its incentive program by ********;
e The Employer agrees to change its drug testing program by ******;
f. The Employer agrees to change its disciplinary program by ******.
g. The Employer agrees that the abatement actions contained in this paragraph will be completed by *******
4. The Employer, by signing this informal settiement agreement, waives its rights to contest the above dtation(s) and penalties [as amended In paragraph * of
this agreement]. Further the Employer agrees that the terms of this Informal Settiement Agreement are incorporated into the citation.
5. OSHA and the Employer agree that the dtation is amended to indude the terms of this Infomnal Settlement Agreement.
6. The Employer agrees to immediately post a copy of this Informal Settiement Agreement in a prominent place at or near the location of the violation(s) referred
to in paragraph 1 above. This Infomial Settlement Agreement must remain posted until the violations cited have been corrected, or for three working days
(exduding weekends and federal holidays), whichever is longer.
7. Pursuant to 29 C.F.R. 1903.19(c), the Employer will submit abatement verification to the U.S. Dept. of Labor — OSHA, [Area Office Address]; witiiln ten days
of the agreed upon abatement date for each action identified in this Infonnal Settiement Agreement The abatement verification shall Indude the date and
method of abatement and a statement that affected employees and their representatives have been informed of the abatement
8. If a third party submits a Freedom of Information Act ("FOIA") request, OSHA will disdose settiement agreements in accordance with the FOIA, unless one of
the FOIA exemptions applies;
9. Nothing In this Informal Settiement Agreement alters in any manner therightsafforded employees under the OSH Act.
For Occupational Safety For the Employer
And Health Administration (signature and date)
Area Director
(signature and date)
^ Under the FOM, all 1904 citations are issued as other-than-serious.
^ Adverse action could indude a range of activities, including those listed in the Interim Investigation Procedures attached as Appendix B and the OSHA
Whistieblower Investigations Manual, CPL 02-03-007 (1/28/2016).
UNITED STATES
DEPARTMENT OF LABOR
Occupational Safety and Health Administration
200 Constitution Ave NW
Washington, DC 20210
V. 800-321-6742 (OSHA)
TTY
www.OSHA.gov
FEDERAL GOVERNMENT OCCUPATIONAL SAFETY AND HEALTH ABOUTTHE SITE
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No Fear Act Data OSHA Publications Accessibility Statement
U.S. Office of Spedal Counsel Office of Inspector General
1 PROOF OF SERVICE
2 I am employed in the County of Sacramento, State of Califomia. I am over the age of
eighteen years and not a party to the within action; my business address is Jackson Lewis P.C,
3 400 Capitol Mall, Suite 1600, Sacramento, Califomia 95814.
4 On January 3, 2020,1 served the within: DECLARATION OF ASHLEY L. HOFFMAN IN
SUPPORT OF DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE
5 TO FILE FIRST AMENDED COMPLAINT
6 on all interested parties in said action, through their attomeys of record as listed below, by placing
a tme and correct copy thereof, addressed as shown below, by the following means:
7
• PERSONAL SERVICE - by personally delivering a tme and correct copy thereof to
8 the person at the address set forth below, in accordance with Code of Civil Procedure
section 1011(a).
9
• MAIL - by placing a tme and correct copy thereof enclosed in a sealed envelope with
10 postage thereon fully prepaid for deposit in the United States Post Office mail box, at
my business address shown above, following Jackson Lewis P.C.'s ordinary business
11 practices for the collection and processing of mail, of which I am readily familiar, and
addressed as set forth below. On the same day correspondence is placed for collection
12 and mailing, it is deposited in the ordinary course of business with the United States
Postal Service.
13
OVERNIGHT DELIVERY - by depositing a tme and correct copy thereof enclosed
14 in a sealed envelope with delivery fees thereon fully prepaid in a box or other facility
regularly maintained by UPS or delivering to an authorized courier or driver
15 authorized by UPS to receive documents, addressed as set forth below.
16 FACSIMILE TRANSMISSION - by transmitting a tme and correct copy by
• facsimile from facsimile number (916)341-0141 to the person(s) at the facsimile
17 number(s) set forth below, which transmission was confirmed as complete. A copy of
the transmission record is attached hereto.
18
E-MAIL OR ELECTRONIC TRANSMISSION - Based on a Court order or on an
19 • agreement by the parties to accept service by e-mail or electronic transmission, I
caused the document(s) described above to be sent from e-mail address
20 kellv.asano(a!iacksonlewis.com to the persons at the e-mail address(es) listed below. I
did not receive, within a reasonable time after the transmission, any electronic message
21 or other indication that the transmission was unsuccessful.
22 Joshua F. Falakassa (SBN 295045) Arash S. Khosrowshahi (SBN 293246)
FALAKASSA LAW, P.C. LIBERTY MAN LAW
23 1901 Avenue ofthe Stars, Suite 450 1010 F Street, Suite 300
Los Angeles, CA 90067 Sacramento, CA 95814
24 Telephone: (818)456-6168 Telephone: (916)573-0469
Facsimile; (888) 505-0868 Facsimile: (866) 700-0787
25 Email: J05h@Falakassalaw.com
26
I declare under penalty of perjury imder the laws of the State of Califomia that the
27 foregoing is tme and correct, and that this declaration was executed on January 3, 2020 at
Sacramento, Califomia. >^ ,
28
Kelly Asano
PROOF OF SERVICE
Preview
EKDORSED 1 JACKSON LEWIS P.C. JAMES T. JONES (SBN 167967) 2020 JAN-3 PM 3=33 2 ASHLEY L. HOFFMAN (SBN 308727) 400 Capitol Mall, Suite 1600 ••UPERIOR COURT OF CALIFORNIA 3 COUNTY OF SACRAHtNlO Sacramento, Califomia 95814 Telephone: (916)341-0404 4 Facsimile: (916) 341-0141 Email: iames.iones@iacksonlewis.com 5 ashlev.hoffiT>an(5),jack:sonlewis.com 6 Attomeys for Defendant LIQUI-BOX CORPORATION 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SACRAMENTO 10 SAJIDA ZAMAN, CASE NO. 34-2019-00252121-CU-WT-GDS 11 Plaintiff, DECLARATION OF ASHLEY L. HOFFMAN IN SUPPORT OF 12 DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE TO 13 LIQUI-BOX CORPORATION, and DOES 1 FILE FIRST AMENDED COMPLAINT through 20, inclusive, 14 DATE: January 16,2020 Defendants. TIME: 2:00 p.m. 15 DEPT.: 53 16 Complamt Filed: March 8, 2019 17 Trial Date: None Set 18 19 I, Ashley L. Hof&nan, declare: BY FAX 20 1. I am an attomey at law licensed to practice before all courts of the State of California, and 21 I am an associate in the law firm of Jackson Lewis P.C, attomeys of record for Defendant Liqui- 22 Box Corporation ("Defendant") in this action. I have personal knowledge of the facts and 23 circumstances set forth herein, and if called upon to testify, I could and would competently testify 24 hereto. 25 2. Defendant filed its answer to Plaintiffs March 8, 2019 complaint on or about May 6, 26 2019. 27 3. Attached hereto as Exhibit A is a true and correct copy of the HR Status Change Form 28 contained in Plaintiffs personnel file that was produced in this action. 1 DECLARATION OF ASHLEY L. HOFFMAN IN SUPPORT OF DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT 1 4. In or around February 2019, Defendant received a letter firom Plaintiffs counsel 2 requesting copies of her persormel file and age statements. In Febmary 2019 Defendant mailed 3 documents to Plaintiffs counsel in response to that letter. Those documents included Exhibit A 4 that is attached hereto as well as Exhibit A to the declaration of David Fmth, which were 5 subsequently bates-labeled as LBC000051 and LBC000052 and produced in this litigation on or 6 about June 7, 2019. 7 5. On or about November 20, 2019, I received an email communication from Plaintiffs 8 counsel. The email asked if Defendant would stipulate to Plaintiff amending her complaint to 9 allege a cause of action under California's Unfair Competition Law based on the allegation that 10 the Critical Safety Behaviors Policy violates the record-keeping/reporting requirements in 29 11 C.F.R. 1904.35 et seq. applicable to the Occupational Safety and Health Act. A tme and correct 12 copy of that email is attached hereto as Exhibit B. 13 6. I subsequently responded to Plaintiffs counsel stating that Defendant would not stipulate 14 to that amendment because Defendant believes its policy is lawful. 15 7. On December 30, 2019, I accessed the United States Department of Labor's 16 Memorandum from Dorothy Dougherty to the OSHA Regional Administrators and State 17 Designees entitled "Interim Enforcement Procedures for New Recordkeeping Requirements 18 Under 29 CFR 1904.35" (November 10, 2016) on the United States Department of Labor's 19 website: https://www.osha.gov/dep/memos/recordkeeping memo 11102016.html. Attached 20 hereto as Exhibit C is a tme and correct copy of that memorandum. 21 I declare under penalty of perjury under the laws of the State of Califomia that the 22 foregoing is true and correct. 23 Executed this 3rd day of January, 2020 at Sacramento, Califomia. A s h l ^ ^ 25 ^ 26 27 28 2 DECLARATION OF ASHLEY L. HOFFMAN IN SUPPORT OF DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT EXHIBIT A L.iQoe-Bo> DESIGN. CONNECT. OEUV'. HR Status Change horm Erhpioyee Name: Sajida Zaman SECTION 1 - EMPLOYEE Date of Hire: 12/09/2003 Birth Date: M/D/Y Sex (M or F): Social Insurance Number. Home Phone Number: Direct Deposit info Home Address: Emergency Contact (Name, Relationship, Address and Phone): SECTION 2 - JOB INFORMATION Effective Date: Position Title: Inspector - Packer Department: Production SECTION 3 - EMPLOYMENT STATUS Previous Employment Status - Check one: New Employment Status - Check one: la Fulltime • Temporary/Contract • Fulltime • Temporary/Contract • Part time • Other: • Part time • Other Exempt SECTION 4 ^ WAGE/ SALARY Effective Date: M/D/Y Cun-ent Wage / Salary: New Wage / Salary: SECTION 5 - REASON FOR CHANGE • New Hire/Rehire • Illness/Disability (not covered by WC) • Wage / salary increase • Illness/Disability (covered under WC) • Unpaid Leave (type: • Pnjmotion/Transfer • Employee Initiated personal info change E! Terminatfon/Reslgnation SECTION 6 - TERMINATION/LEAVE Date of actual last day worked: 01/03/2019 Tenninatton Date: 01/10/2019 Vacation Owing: Termination Pay, if applicable: Leave or Termination Reason: See below Date of planned retum, if applicable: • All company property has been retumed Additional Comments: Involuntary - Violation of Critical Safety Behaviors - Neglected to report injury timely SECTION 7 - AUTHORIZATION Immediate Manager's Signature:, Date: | iQ ^Ol^ Employee Signature: Date: LBC000051 EXHIBIT B Hoffman, Ashley Lynn (Sacramento) From: Joshua Falakassa Sent Wednesday, November 20, 2019 12:52 PM To: Hoffman, Ashley Lynn (Sacramento); Jones, James T. (Sacramento) Cc: Arash Khosrowshahi Subject: Zaman v. Liqui-Box—Stipulation to File First Amended Complaint Categories: Filed to ND Filinglndicaton -1 Ms. Hoffman and Mr. Jones, Plaintiff intends to amend her individual complaint to allege additional facts and a cause of action under Business and Professions Code sectionl7200 et seq for Defendant's violation of OSHA. ("UCL"). Plaintiff seeks to allege that Defendant's "Critical Safety Behaviors" procedure/policy is in violation ofthe new Occupational Safety and Health Administration ("OSHA") rules/regulations concerning occupational injury/illness record-keeping/reporting and anti- retaliation/discrimination provisions (See 29 CFR 1904.35 et seq. and Section 11(c) ofthe OSH Act) Specifically, Plaintiff's First Amended Complaint will allege that Defendant's "Critical Safety Behaviors" policy is not a reasonable reporting procedure as it pertains to the "time and means" for filing a report of an injury or illness. As stated in the OSHA enforcement guidelines, a procedure is reasonable "if the procedure requires employees to report a work-related injury or illness as soon as practicable after the employee realizes that he or she has a work-related injury or illness that should be reported to the employer. However, it is not a reasonable time requirement if the employer has a rigid prompt-reporting requirement that disciplines employees for late reporting when the employee could not have realized that he or she has a work-related injury or illness. The employer's time requirement for reporting an injury or illness must take into account situations in which employees cannot reasonably be expected to discover their injuries or illnesses within a rigid reporting period. For a reporting procedure to be reasonable it must allow for reporting of work- related injuries and illnesses within a reasonable time after the employee has realized that he or she has suffered the kind of work-related injury or illness the employer's procedure requires employees to report." (Section 1904.35(b)(l)(i))) (See https://www.osha.gov/dep/memos/recordkeeping_memo_11102015.html) Here, Plaintiff will allege that Defendant's procedure requires employees to "immediately report" all incidents.... without exception." Therefore, the procedure is unreasonably rigid as it pertains to the "time" by which employees are required to report injuries/illness, and fails to take into account situations in which employees cannot reasonably be expected to discover their injuries or illnesses, as required by the OSHA regulations. Further, Plaintiff will allege that Defendant's procedure failed to adequately inform employees of their right to report and prohibition against discharge/discrimination for reporting.(Section 1904.35(b)(l)(iii)) Finally, Plaintiff will allege that Defendant's termination of Plaintiff for her "neglect to report injury timely" violates Section I I C ofthe OSH Act and Section 1904.35(b)(l)(iv) which states that employers "must not discharge or in any manner discriminate against any employee for reporting a work-related injury or illness.". In light of our continued working relationship, we request that you stipulate to the filing of the First Amended Complaint to allege these facts and a new cause of action under the UCL Although leave to amend is granted liberally and no prejudice will result, we hope to prevent any unnecessary court intervention. Please advise no later than Friday, November 22, 2019, if you are amenable to a stipulation and we will forward you a Proposed First Amended Complaint for your review/consideration. We look forward to hearing from you. Best Regards, Joshua Falakassa, Esq. FALAKASSA LAW, P.C. Joshua S. Falakassa, Esq. 1901 Avenue of the Stars, Suite # 450 Los Angeles, CA 90067 Direct: (818) 456-6168 Fax: (888) 505-0868 www.falakassalaw.com This electronic message contains information which may be confidential and privileged and is intended only for the named addressee. Unless you are the addressee of this message you may not use, copy or disclose the contents ofthis message to anyone. If you have received this message in error, please delete the message and advise the sender by reply e-mail or by calling (818) 456-6168. Thank you. UNITED STATES DEPARTMENT OF LABOR OSHA Menu Q SEARCH OSHA OSHA V' STANDARDS v TOPICS v HELP AND RESOURCES ^ Contact Us FAQ A to Z Index English Espar^ol OSHA Enforcement / Interim Enforcement Procedures for New Recordkeeping Requirements Under 29 CFR 1904.35 To the extent the guidance In this memorandum conflicts with the October 11, 2018 memorandum that provides further guidance on the basic principles of these requirements, the October 11, 2018 memorandum supersedes this guidance. Occupational Safety and Health Administration U.S. Department of Labor Washington, D.C. 20210 Reply to the attention of: November 10, 2016 MEMORANDUM FOR: REGION/M. ADMINISTRATORS STATE DESIGNEES THROUGH: DOROTHY DOUGHERTY Deputy Assistant Secretary FROM: THOMAS GALASSI, Director Directorate of Enforcement Programs SUBJECT: Interim Enforcement Procedures for New Recordkeeping Requirements Under 29 CFR 1904.35 This memorandum establishes interim procedures for enforcing new provisions in OSHA's occupational injury and illness recordkeeping regulation, 29 CFR 1904.35, Employee involvement. Employers are required to establish and Inform employees of their reasonable procedure for reporting work-related injuries and illnesses and are prohibited from discharging or retaliating against an employee who reports a work-related Injury or illness. I. Overview of New Regulations and Procedures On May 12, 2015, OSHA issued a final rule revising its occupational injury and illness recordkeeping and reporting requirements in 29 CFR 1904.35, Employee involvement Changes to Section 1904.35 became effective on August 10, 2016. However, the Agency delayed enforcement of those provisions until December 1, 2016. The new provisions addressed In these Interim Enforcement Procedures require employers to have a reasonable procedure for reporting work-related injuries and illnesses and to inform employees of that procedure and of their right to report work-related injuries and illnesses free from discrimination/retaliation. Also, the new rule prohibits employers from discriminating or retaliating against any employee who reports a wori<-related injury or illness. (See Appendix A, Summary of New Requirements.) The new rule also includes changes to Section 1904.41, Elecb-onic Submission of Injury and Illness Records to OSHA. Those provisions are not effective until January 1, 2017 and are not addressed in this memorandum. The complete final rule can be viewed at 92 FR 29624-29694, Improve Traddng of Workplace Injuries and Illnesses. The National Office has established these Interim Enforcement Procedures to ensure that OSHA field offices are prepared for the receipt of complaints related to the new provisions. They are interim enforcement guidance that will be evaluated and adjusted after the new provisions are in effect. Specifically, these Interim Enforcement Procedures provide guidance to the Area Offices for enforcement ofthe new requirements in the recordkeeping sections 1904.35(b)(l)(l),(il), and (iii). Included in these Interim Procedures are Spedal Interim Procedures for enforcing tiie new anti-retaliation provision in section 1904.35(b)(l)(lv) and for making administrative referrals to the Whistieblower Protection Program (WPP) In the Regions for pre-citation consultation and investigation. These interim procedures follow procedures contained in the Reld Operations Manual (FOM), Chapters 3 and 9. Concurrent with these Interim Enforcement Pnacedures, the National Office has established Interim Investigation Procedures to ensure that complaints are property investigated by the WPP. (See Appendix B, Interim Investigation Procedures for Section 29 C.F.R. 1904.35(b)(l)(iv).) Those procedures provide guidance to tiie WPP for conducting an expedited investigation. Collectively, these Interim procedures address the separate responsibilities of the WPP and the Area Offices for enforcement of the new anti-retaliation provision. Among other things, Area Offices have responsibility for following the FOM in determining when an inspection is opened, entering data into OIS, and preparing the citation package. The WPP has responsibility for investigating the retaliation complaints, recommending whether or not to issue a dtation, and determining make- whole remedies when appropriate. The procedures provide for coordination between Area Offices and the WPP on matters such as sharing of relevant information and resolution of citations through informal settiements. I I . Enforcement and Citation Guidance for Violations of 1904.35(b}(l}(i),(ii), and (ill). The following is a summary of the enforceable requirements and the inspection and citation guidance for these provisions: A Enforcement Guidance. Sedion 1904.35(b)(l}(i) Establish reasonable reporting procedure. This provision requires that an employer must establish a reasonable procedure for employees to report work- related Injuries or illnesses promptiy and accurately. While the new regulation uses the word "procedure," the basic requirement is the same as the previous regulation, which required that the employer must set up "a way" for employees to report work-related injuries and illnesses. The new pnavislon states that "a procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness." The regulation does not require that the procedure be In writing. Evidence to establish a violation is based on whether the employer's procedure is unduly burdensome and/or would discourage a reasonable employee from reporting. The test of "reasonable" is an objective test: would the procedure discourage a reasonable employee from reporting? Under these Interim Enforcement Procedures, OSHA will only issue citations under section 1904.35(b)(l)(i) if the employer's procedure regarding the time and means for filing a report of an injury or illness is "unreasonable." The "time" and "means" refers to when and how the employer's procedure requires employees to report injuries and illnesses. For example, It is a reasonable time (when) requirement if the procedure requires employees to report a work-related Injury or illness as soon as practicable after the employee realizes that he or she has a work-related injury or illness that should be reported to the employer. However, It Is not a reasonable time requirement if the employer has a rigid prompt-reporting requirement that disciplines employees for late reporting when the employee could not have realized that he or she has a work-related injury or illness. The employer's time requirement for reporting an injury or Illness must take into account situations in which employees cannot reasonably be expected to discover their injuries or illnesses within a rigid reporting period. For a reporting procedure to be reasonable It must allow for reporting of work-related injuries and illnesses within a reasonable time after the employee has realized that he or she has suffered the kind of work-related injury or illness the employer's procedure requires employees to report. It is a reasonable means (how) requirement If the procedure requires employees to report: a work-related Injury or illness by reasonable means, such as by phone, email, or in person when practicable. However, it is not a reasonable means requirement if the procedure requires the employee to report the injury or illness in person at a location remote from his or her worienefit] [d&aibe any otiter adverse action.] A citation must be issued by [DA TE]. When the Axea Office determines an inspection is warranted, the Area Office will follow the protocols currentiy In place for referral of a retaliation complaint to the WPP. The Area Office will send the completed OSHA 7 to tiie WPP and identify the refen^l as a potential violation of 1904.35(b)(l)(iv). (See C, Opening Conference, below for further notification to the WPP after opening conference.) 2. Complaintftomformer employee. OSHA anticipates that the Area Office may receive complaints from former employees, or representatives, alleging that a former employee was terminated or forced to quit because he or she reported a work-related Injury or Illness. The complaint will be treated as a potential 11(c) complaint and will be referred to the WPP consistent with the current procedure in each Region. Additionally, the complaint will be treated as a potential violation of 1904.35(b)(l)(lv). The /Vrea Office will attempt to obtain the following information: • Name of employee making the allegation, induding all contact information, home address, phone numbers; • Name and address of employer; • Reason for separation from job: When (date) was employee separated from job (for purposes of calculation of the six-month statute of limitations it is important to have as an exact date as possible of when the employee quit or was terminate); was the employee fired; what reason did the employer give the employee for the termination; why does the employee think he or she was terminated; if the employee left the employment what was the reason. • Report of injury or illness: What did the employee report; describe injury or Illness that employee reported; how did the injury occur; when (date) did employee report the injury or illness; name of person to whom employee report;ed injury or illness. The above Infonnation will be documented on the OSHA 7 and provided to the WPP for a determination as to whether a reasonable basis exists for believing that a violation of 1904.35(b)(l)(iv) could have occurred. The information will be provided to the WPP follov\ring current procedure for referral of a whistieblower complaint in each Region. After the WPP has received the information (within two days, if possible), the WPP will make such a determination and, if appropriate, refer to the Area Office for opening an Inspection pursuant to the FOM, Chapter 9, Section I.C.8. Within 5 days of receipt of the referral from the WPP, the Area Office will open an inspection. If the WPP determination is that no reasonable basis exists for believing a violation of section 1904.35(b)(l)(iv) could have occurred, the Area Office will not open an inspection and will inform the former employee. 3. Complaint from a non-aggrieved employee. OSHA antidpates that the Area Office may receive an allegation of potential non-compliance with section 1904.35(b)(l)(iv) from an individual, or entity, other than someone who claims to have been retaliated against by the employer based on the report of a work-related injury or illness. In such situations, the Individual/entity making the allegation may not have the identity/name of an individual who may have been subject to the retaliation. OSHA will Inquire as to whether the non-aggrieved employee can obtain the identity of an aggrieved employee. If that individual is identified the complaint will be handled as outiined above, based on the status as a current or former employee. If the identity/name of an individual cannot be determined, OSHA will ti-eat the complaint as a non-formal complaint and follow current FOM procedures for a phone/fax. A referral to the WPP may be appropriate dependent on the outcome of the phone/fax. 4. Complaint provided to CSHO while conducting on-site safety and health inspection. If, during the conduct of a safety and health inspection, the CSHO Is Informed of an allegation related to a potential violation of the anti-retaliation provision at section 1904.35(b)(l)(iv), the CSHO will handle each complaint based on these Special Interim Procedures depending on whether it is a complaint from a current or former employee. 5. Referral from the WPP. There may be occasions when the WPP receives directiy from a complainant an allegation of retaliation because he or she reported a wori<-related injury or illness and the allegation has not been filed with the Area Office. Pursuant to tiie FOM, Chapter 9, Section I.C.8, the WPP will refer the complaint to the Area Office for a determination about whether an inspection is warranted. The Area Office will handle each case based on these Special Interim Procedures, depending on whether it is a complaint from a current or former employee. C Opening Conference. During the opening conference, the CSHO will follow established procedure and present a copy of the OSHA 7 on which the complainant's name has been withheld. The CSHO will explain that the investigation of the retaliation complaint will be handled by a Whistieblower (WB) Investigator and that shortiy after the opening conference a WB Investigator will contact a representative of the company. The CSHO will identify the name of the company representative and his or her contact infonnation. There may be occasions when, based on discussions between the Area Office and the WPP, the partidpation ofthe WPP may be appropriate at tiie opening conference. The CSHO will conduct a review of records. In addition to the OSHA logs for the past 5 years, the CSHO will obtain any documentation related to the report:ed Injury that is the basis of the retaliation/diSCTimination allegation, and any other document relevant to the complaint of retaliation. After the inspection, within one business day when practicable, the Area Office will notify the WPP that the inspection has been opened and will provide copies ofthe OSHA 300 logs and any other relevant documentation. The Area Office will identify the Point of Contact in the Area Office for future coordination, who will be the contact for a request from the WPP to obtain information that may be available from the employer onsite. D. Interim Investigation Procedures Foiiowing Referral from the Area Office to the WPP. The WPP will conduct an Investigation to determine whetiier the facts are sufficient to support an Issuance of a dtation under section 1904.35(b)(l)(Iv). The WPP will follow its Interim Investigation Procedures for gathering evidence, analyzing the merits of the allegation, reaching a recommendation regarding tiie determination of retaliation or discrimination, and recommending the appropriate remedies, induding back wages when appropriate. It Is not Intended that the investigation will be a joint investigation. E. Conclusion of the WPP Investigation of Potential Violation of Section 1904.35(b)(l)(iv). When the WPP Investigation has been concluded, regardless of the recommended determination, the WPP will forward a Memorandum of Investigation (MOI), along with the evidentiary materials, via e-mail or hard copy, to the Area Office. The Area Office will incorporate the fonwarded materials Into the enforcement case file and maintain the records in accordance with normal procedures. If the investigation leads to a recommendation not to Issue a citation under 1904.35(b)(l)(iv), the WPP will notify the Area Office via the MOI that "The WPP does not recommend issuing a dtation under section 1904.35(b)(l)(iv)." The Area Office will take the necessary steps to record this finding in OIS. If the WPP continues to investigate the matter under section 11(c), the notification will also state, "However, this recommendation should not be viewed or interpreted to mean that the WPP has made any determination regarding the merit of any con-esponding section 11(c) matter. The WPP continues to Investigate this matter under section 11(c)." If the WPP does recommend Issuing a dtation under 1904.35(b)(l)(iv) based on afindingthat reasonable cause exists to believe that section 1904.35(b)(1) (iv) was violated, the WPP will forward the MOI to the Area Office for indusion in the enforcement file and fbr use in the issuance of dtations. The MOI will indude recommendations for remedies for the aggrieved employee, which could include back wages, removal of dlsdplinary actions, and recommendations for abatement of any underiying policy or procedure that is related to the merit determination. As stated below, the Area Office will assess a penalty for the dtation. After receipt of the MOI from the WPP, and consultation as necessary with the WPP, the Area Office will hold a dosing conference with the employer. This dosing conference can be done by telephone. F. Issuance of Citation and Penalty Policy. If the AO detenmlnes, after consultation with the WPP, that a citation should be issued, the AO will prepare and issue the citation. The AO is responsible for ensuring the necessary information is entered into OIS and drafting/issuing any citations, with input from tiie WPP. An otiier-than-serious citation of Section 1904,35(b)(l)(iv) will normally be Issued if an employer discharges or in any manner disaiminates against any employee for reporting a work-related injury or illness. The gravity-based penalty for this violation will normally be $5,345. If the Area Director determines that it Is appropriate to achieve the necessary deterrent effect, the unadjusted penalty may be up to $12,471. Abatement The dtation must Indude remedies for the aggrieved employee, such as back wages, removal of disciplinary action, reinstatement of lost time and wages, etc., where appropriate. This abatement will be based on the recommendations received from the WPP. Also, the dtation must indude the means for abatement of the underiying policy or procedure that is related to the merit determination. G. Informal Conference/Settlement. If an employer requests an Infomial Conference regarding the dtation issued for a violation of 1904.35(b)(l)(iv), the Area Office will consult with the WPP regarding partidpation In the conference. Partidpation can be in person, by telephone, or video conference. Preparation for the informal conference should indude a discussion on setiJement parameters. Among other things, the Area Office/WPP should be prepared to discuss remedies induding back wages and other make-whole remedies for the aggrieved employee, As necessary, consultation with the RSOL may be sought. The Area Office/WPP will consult with the aggrieved employee before the informal conference to advise him or her that the employer has requested the conference and to discuss settiement parameters. The Area Office/WPP will tell the employee that, if settiement within the discussed parameters seems likely, the Area Director/WPP will contact the employee to discuss beforefinalizingthe settiement terms. If a settiement is reached, the Area Office, In consultation with the WPP, will prepare the Informal Settiement Agreement (See Appendix C, Template - Informal Settiement Agreement.) IV. Data Collection and Input into OIS. Complaints received by the Area Office will follow the standard procedures for complaint intake. To help aid in tracking the number of complaints received for a 1904.35(b)(1) violation, indude the standard number that is allegedly violated in the text field of the "Hazard Description and Location." At a minimum, "1904.35(b)(1)" needs to be induded in the text field in order to fadlltate tracking in OIS. EXAMPLE: 1904.35(b)(l)(iv): Employer has discharged or in some manner discriminated against an employee for reporting a wok-related injury or illness. V. Federal Agencies. All Federal Executive Branch agencies regardless of location (including those overseas), size, or industry classification must collect and maintain OSHA-required Injury and illness data. In addition, with the updates to 29 CFR 1960 on August 5, 2013, Federal agendes were required to annually submit that data to the Department of Labor. Each agency must submit to the Secretary by May 1 of each year all infomnation induded on the agency's previous calendar year's occupational injury and illness recordkeeping forms. Currentiy, Federal agendes submit their data through BLS, either by entering the data directiy on-line or uploading a flat-file of their data. The revised reporting requirements of 29 CFR 1904.35 are applicable to all Federal agencies, no matter their location. NOTE: OSHA has also developed a document that answers common questions conceming Federal agencies' recordkeeping. (See Frequently Asked Questions for OSHA's Injury and Illness Recordkeeping Rule for Federal Agendes.) VI. Outreach. To ensure that the public is informed of the new requirements under 29 C.F.R. 1904.35, OSHA Is engaging In outreach to industry and interested parties. Area Offices are encouraged to conduct their own outreach initiatives. For further information and resources, please see the OSHA website at https://www.osha.gov/recordkeeping/finalrule/index.html. If you have any questions regarding these new requirements and the enforcement plan, please contact the Directorate of Enforcement Programs, Office of General Industry and Agricultural Enforcement. Resources: OSHA Poster: http://vmw.osha.gov/Publications/poster.html Recordkeeping Home Page: http://wvw.osha.gov/recorelkeeping/index.html Recordkeeping Tutorial: http://www.osha.gov/recordkeeping/tutorial.html Appendixes: A Summary of New Requirements of Section 1904.35 B. Interim Investigation Procedures for Section 29 C.F.R. 1904.35(b)(l)(Iv) C Template - Informal Settiement Agreement APPENDIX A Summary of New Requirements of Section 1904.35 Summary of New Requirements of Section 1904.35: Empioyee Involvement and Prohibition Against Discrimination. One of the goals of the final rule is to ensure the completeness and accuracy of Injury and illness data collected by employers and submitted to OSHA. The final rule is intended to promote accurate recording of work-related injuries and illnesses by preventing the under-recording that arises when workers are discouraged from reporting these occurrences. The rule establishes an additional mechanism for OSHA to enforce the existing prohibition on employer retaliation against employees. Therefore, Section 1904.35 contains new requirements intended to promote complete and accurate reporting of work-related injuries and illnesses. Section 1904.35(a) Basic requirement- retains the requirement that an employer must involve employees and their representatives in the recordkeeping system by Informing each employee how to report an illness or injury and providing access to employees and employee representatives of the employer's injury and Illness records. The new rule darifies that the Injuries and illnesses refen-ed to in 1904,35(a)(l) are work- related injuries and illness. Also,tiienew mle clarifies that tiie employer, when informing each employee how to report a work related injury or Illness, must provide specific information contained in new section (b)(l)(lii). Section 1904.35(b)(1) Implementation - retains the requirement that an employer must set up a way for employees to report wortc related injuries and illnesses. The new rule clarifies that an employer "must establish a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately. A procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or Illness." Section 1904.35(b)(ii) maintains the requirement that the employer must tell each employee how to report a woric-related injury or illness but now requires that each employee be informed of the "procedure" for reporting a work-related injury or illness. Section 1904.35(b)(l)(iii) adds a new provision requiring employers to "inform each employee that employees have the right to report work-related injuries and illnesses" and prohibiting employers "from discharging or in any manner discriminating against employees for reporting work-related injuries or illnesses." Section 1904.35(b)(l)(iv) is a new provision stating that employers "must not discharge or in any manner discriminate against any employee for - reporting a work-related injury or Illness." While this provision is new in the recordkeeping regulation, this provision is consistent with the existing prohibition in Section 11(c) of the OSH Act, which prohibits employers from retaliating against employees for reporting work-related Injuries and illnesses. The new Rule also provides: 1904.36 Prohibition against discrimination In addition to 1904.35, section 11(c) ofthe OSH Act also prohibits you from discriminating against an employee for reporting a woric related fatality, injury, or illness. That provision of the Act also protects the employee v^o files a safety and healtii complaint, asks for access to the part 1904 records, or otherwise exerdses any rights afforded by the OSH Act. This provision Is not citable as it repeats the current prohibition addressed in Section 11(c) of the OSH Act. APPENDIX B Interim Investigation Procedures for Section 29 C.F.R. 1904.35(b)(l)(iv) (5seOSHA Memorandum, November 10, 2016) APPENDIX C Template - Informal Settlement Agreement NOTE: The AO can use its standard ISA. This template is intended to inciude some ofthe provisions that may be Induded as abatement ofthe 1904.35(b)(lXiv) dtation. The AO will consult with the WPP regarding the tenvs of the abatement and it Is strongly recommended that RSOL be consulted before execution of these agreements. INFORMAL SETTLEMENT AGREEMENT The undersigned Employer and tiie undersigned Occupational Safety and Health Administration (OSHA), in settiement of the above citation(s) and penalties which were issued on *****, 20***, hereby agree as follows: 1. The Employer accepts the Citation and Notification of Penalties as issued on ******. [or Employer and OSHA agree to amend the Qtation and Notification of Penalties as below:] 2. The Employer agrees to pay the penalty of $XXXX within 10 working days of the date this Informal Settlement Agreement is signed. Payment will be made elecb-onically at www.pay.gov or with a check or money order payable tp "DOL-OSHA", and mailed to U.S. Dept. of Labor — OSHA, [tvea Office Address]. 3. The Employer agrees to fully abate the dtation by taking the following actions: a. The Employer agrees to pay [the name of the employee] $ In back pay (less normal payroll deductions). The Employer shall submit appropriate documentation to the Social Security Administration allocating back pay to the appropriate calendar quart:ers. [OR Employer agrees to pay [the employee's name] a lump sum of $ .] Any check shall be made payable to [the name of the employee] and mailed to U.S. Dept. of Labor - OSHA, [Area Office Address]; b. The Employer shall expunge any references from [the name of the employeej's personnel records relating to the adverse action and shall not make any references relating to the adverse action in any future requests for employment references; c Should any third parties, Induding prospective employers, inquire as to the employment of [the employee's name], the Employer agrees to refrain from any mention of [the employee's name]'s protected activity. The Employer agrees that nothing will be said or conveyed to any third party tiiat could be construed as damaging the name, character, or employment of [the employee's name]; d. The Employer agrees to change its incentive program by ********; e The Employer agrees to change its drug testing program by ******; f. The Employer agrees to change its disciplinary program by ******. g. The Employer agrees that the abatement actions contained in this paragraph will be completed by ******* 4. The Employer, by signing this informal settiement agreement, waives its rights to contest the above dtation(s) and penalties [as amended In paragraph * of this agreement]. Further the Employer agrees that the terms of this Informal Settiement Agreement are incorporated into the citation. 5. OSHA and the Employer agree that the dtation is amended to indude the terms of this Infomnal Settlement Agreement. 6. The Employer agrees to immediately post a copy of this Informal Settiement Agreement in a prominent place at or near the location of the violation(s) referred to in paragraph 1 above. This Infomial Settlement Agreement must remain posted until the violations cited have been corrected, or for three working days (exduding weekends and federal holidays), whichever is longer. 7. Pursuant to 29 C.F.R. 1903.19(c), the Employer will submit abatement verification to the U.S. Dept. of Labor — OSHA, [Area Office Address]; witiiln ten days of the agreed upon abatement date for each action identified in this Infonnal Settiement Agreement The abatement verification shall Indude the date and method of abatement and a statement that affected employees and their representatives have been informed of the abatement 8. If a third party submits a Freedom of Information Act ("FOIA") request, OSHA will disdose settiement agreements in accordance with the FOIA, unless one of the FOIA exemptions applies; 9. Nothing In this Informal Settiement Agreement alters in any manner therightsafforded employees under the OSH Act. For Occupational Safety For the Employer And Health Administration (signature and date) Area Director (signature and date) ^ Under the FOM, all 1904 citations are issued as other-than-serious. ^ Adverse action could indude a range of activities, including those listed in the Interim Investigation Procedures attached as Appendix B and the OSHA Whistieblower Investigations Manual, CPL 02-03-007 (1/28/2016). UNITED STATES DEPARTMENT OF LABOR Occupational Safety and Health Administration 200 Constitution Ave NW Washington, DC 20210 V. 800-321-6742 (OSHA) TTY www.OSHA.gov FEDERAL GOVERNMENT OCCUPATIONAL SAFETY AND HEALTH ABOUTTHE SITE White House Frequentiy Asked Questions Freedom of Information Act Severe Storm and Flood Recovery Assistance A -ZIndex Privacy & Security Statement Disaster Recovery Assistance Freedom of Information Act Disclaimers Disaster/^ssistance.gov Read tiie OSHA Newsletter Important Website Notices USA.gov Subscribe to the OSHA Newsletter Plug-Ins Used by DOL No Fear Act Data OSHA Publications Accessibility Statement U.S. Office of Spedal Counsel Office of Inspector General 1 PROOF OF SERVICE 2 I am employed in the County of Sacramento, State of Califomia. I am over the age of eighteen years and not a party to the within action; my business address is Jackson Lewis P.C, 3 400 Capitol Mall, Suite 1600, Sacramento, Califomia 95814. 4 On January 3, 2020,1 served the within: DECLARATION OF ASHLEY L. HOFFMAN IN SUPPORT OF DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE 5 TO FILE FIRST AMENDED COMPLAINT 6 on all interested parties in said action, through their attomeys of record as listed below, by placing a tme and correct copy thereof, addressed as shown below, by the following means: 7 • PERSONAL SERVICE - by personally delivering a tme and correct copy thereof to 8 the person at the address set forth below, in accordance with Code of Civil Procedure section 1011(a). 9 • MAIL - by placing a tme and correct copy thereof enclosed in a sealed envelope with 10 postage thereon fully prepaid for deposit in the United States Post Office mail box, at my business address shown above, following Jackson Lewis P.C.'s ordinary business 11 practices for the collection and processing of mail, of which I am readily familiar, and addressed as set forth below. On the same day correspondence is placed for collection 12 and mailing, it is deposited in the ordinary course of business with the United States Postal Service. 13 OVERNIGHT DELIVERY - by depositing a tme and correct copy thereof enclosed 14 in a sealed envelope with delivery fees thereon fully prepaid in a box or other facility regularly maintained by UPS or delivering to an authorized courier or driver 15 authorized by UPS to receive documents, addressed as set forth below. 16 FACSIMILE TRANSMISSION - by transmitting a tme and correct copy by • facsimile from facsimile number (916)341-0141 to the person(s) at the facsimile 17 number(s) set forth below, which transmission was confirmed as complete. A copy of the transmission record is attached hereto. 18 E-MAIL OR ELECTRONIC TRANSMISSION - Based on a Court order or on an 19 • agreement by the parties to accept service by e-mail or electronic transmission, I caused the document(s) described above to be sent from e-mail address 20 kellv.asano(a!iacksonlewis.com to the persons at the e-mail address(es) listed below. I did not receive, within a reasonable time after the transmission, any electronic message 21 or other indication that the transmission was unsuccessful. 22 Joshua F. Falakassa (SBN 295045) Arash S. Khosrowshahi (SBN 293246) FALAKASSA LAW, P.C. LIBERTY MAN LAW 23 1901 Avenue ofthe Stars, Suite 450 1010 F Street, Suite 300 Los Angeles, CA 90067 Sacramento, CA 95814 24 Telephone: (818)456-6168 Telephone: (916)573-0469 Facsimile; (888) 505-0868 Facsimile: (866) 700-0787 25 Email: J05h@Falakassalaw.com 26 I declare under penalty of perjury imder the laws of the State of Califomia that the 27 foregoing is tme and correct, and that this declaration was executed on January 3, 2020 at Sacramento, Califomia. >^ , 28 Kelly Asano PROOF OF SERVICE