Alert 02.24.26
Cal/OSHA Proposes Inspection “Walkaround Rule”
Cal/OSHA has proposed its version of the federal OSHA walkaround rule, which permits authorized employee representatives to accompany inspectors during workplace inspections.
Alert
Alert
04.13.26
Enforcement of California’s workplace safety regulations is primarily civil, with most inspections by California’s Division of Occupational Safety and Health (Cal/OSHA) resulting in the issuance of citations and civil penalties. Although it does not happen often, criminal enforcement occurs when Cal/OSHA refers matters to the Bureau of Investigations (BOI) to conduct criminal investigations and refer cases to district attorneys when appropriate. The BOI “must investigate accidents involving violations … in which there is a serious injury to five or more employees, death, or request for prosecution by a Division representative.” [8 C.C.R. section 344.51.] In short, the BOI is responsible for “investigating employee fatality and serious injury cases” and “preparing and referring cases to local and state prosecutors for criminal prosecution.” When Cal/OSHA refers an inspection to BOI, it must provide the BOI with its initial accident reports, inspection reports and any other relevant documents. [Cal. Lab. Code section 6315(b).]
In turn, “District attorneys can prosecute employers … for knowingly, negligently, or willfully violating an occupational safety or health standard. Criminal sanctions can include monetary fines and imprisonment in a county jail or state prison.” In California, district attorneys can use underlying safety violations to pursue claims under California’s Unfair Competition Law (UCL), a broad statute that prohibits “any unlawful, unfair or fraudulent business act or practice .... ” [Bus. & Prof. Code section 17200.] The UCL “borrows violations of other laws and treats them as unlawful practices,” which the UCL then “makes independently actionable.” [Cel-Tech Commc’ns Inc., 20 Cal.4th 163, 180 (1999). (internal quotation marks and citations omitted).] The result of a district attorney prosecution is often civil penalties paid to resolve the UCL claims, on top of civil penalties paid to resolve the underlying Cal/OSHA citations.
In light of a state audit finding that the BOI is understaffed and refers less than 2% of cases to prosecutors, California legislators have introduced Assembly Bill 2321 (AB 2321), a bill that would shift criminal investigations from the BOI to “the appropriate prosecuting authority,” such as county district attorneys. The bill would require prosecutors to investigate workplace safety “violations in which there is a death or permanent total disability …. ” Permanent total disability, a phrase not used in Cal/OSHA’s regulatory framework, is defined under the California Labor Code’s Workers’ Compensation statutes and includes the following: (1) loss of both eyes or the sight thereof; (2) loss of both hands or the use thereof; (3) an injury resulting in a practically total paralysis; and (4) an injury to the brain resulting in permanent mental incapacity.
The California Chamber of Commerce has opposed the bill on the ground that “prosecutors are not workplace safety experts, so forcing them into the driver’s seat for investigations of all total disability or fatality cases will not improve the quality of that investigation or case preparation.” Instead, such cases are “best handled by the Division’s inspectors – who are more knowledgeable about workplace safety law – and employers’ representatives – who are also knowledgeable about workplace safety.” As of April 9, 2026, the bill is in the appropriations committee.
If the bill passes, employers who experience a workplace accident or fatality should be prepared for a potential prosecution case from the very first day of Cal/OSHA’s investigation. This entails the need to keep compliant workplace safety records, conduct internal (and likely privileged) investigations of the underlying incident and involve legal counsel early in the process.
Contact your regular Pillsbury contact or the authors of this alert to submit written comments or for recommendations on how to prepare for future inspections.