California civil lawyers and prosecutors thought they found an easy way to piggy back Unfair Competition Claims on Cal OSHA’s liability findings. Instead of relying on Cal OSHA, they filed civil actions under the California Unfair Competition law against employers when Cal OSHA assessed liability, fines and penalties for employee safety and health violations. Ordinarily, Cal OSHA’s jurisdiction would preclude direct civil actions by anyone other than Cal OSHA for these violations. However, to avoid Cal OSHA jurisdiction, these suits argued that when workplace safety corners are cut in violation of the law, the liable employer is at an illegal advantage over competing companies that did not violate the safety and health laws. Thus, in these civil suits lawyers and prosecutors sought damages unavailable from Cal OSHA, including punitive damages.

In Solus Industrial Innovations, LLC v. The Superior Court of Orange County, a case now pending before the California Supreme Court, the Orange County District used the Unfair Competition Law to seek large civil penalties against Solus after an investigation by Cal OSHA resulted in criminal charges from a water heater explosion that killed two individuals.

The trial judge was prepared to let the case go to trial, however, Solus obtained a writ of mandate from the Court of Appeals that directed that the case be dismissed on the grounds that federal OSHA law preempted, and did not allow an exception for, claims under the state UCL. The Orange County District Attorney appealed to the California Supreme Court Oral argument is scheduled for November 7, 2017.Thus, whether the Unfair Competition law can be used where Cal OSHA assesses liability is still unresolved.

OSHA compliance is incredibly important as the lives, health and safety of employees and the public are at risk. It is imperative that your company comply with these health and safety requirements. If you or your company is unsure if it is in compliance and/or if you have any questions regarding compliance, you should discuss them with your legal counsel. The consequences of failing to comply are stiff.

The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.