Opinion
B296657
02-06-2020
UPS GROUND FREIGHT INC., Plaintiff and Appellant, v. CALIFORNIA OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD, Defendant and Respondent; DEPARTMENT OF INDUSTRIAL RELATIONS, DIVISION OF OCCUPATIONAL SAFETY AND HEALTH, Defendant and Real Party in Interest.
Jackson Lewis, Nikki L. Wilson, Dylan B. Carp and Melanie L. Paul for Plaintiff and Appellant. J. Jeffrey Mojcher, Aaron R. Jackson, Autumn Gonzales and Andia Farzaneh for Defendant and Respondent. Christopher Grossgart, Rocio Y. Garcia-Reyes and Eric L. Compere for Defendant and Real Party in Interest.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BS171910) APPEAL from a judgment of the Superior Court of Los Angeles County, Mary H. Strobel, Judge. Affirmed. Jackson Lewis, Nikki L. Wilson, Dylan B. Carp and Melanie L. Paul for Plaintiff and Appellant. J. Jeffrey Mojcher, Aaron R. Jackson, Autumn Gonzales and Andia Farzaneh for Defendant and Respondent. Christopher Grossgart, Rocio Y. Garcia-Reyes and Eric L. Compere for Defendant and Real Party in Interest.
____________________
UPS Ground Freight, Inc. (UPSF) appeals the denial of its petition for writ of mandate seeking review of the decision after reconsideration of the California Occupational Safety and Health Appeals Board (Board). The Board upheld the decision of the Administrative Law Judge (ALJ) that UPSF violated California Code of Regulations, title 8, section 3385, subdivision (a) (section 3385(a)) by failing to pay for its employees' required protective footwear.
UPSF contends the Board erred in finding that UPSF was required to pay for its employees' protective footwear and that UPSF had fair notice of that requirement. These are not among the statutory grounds for review provided in Labor Code section 6629, but we construe UPSF to be arguing that the Board acted unreasonably and in excess of its jurisdiction, in arriving at its decision. (See Lab. Code, § 6629.)
Under California Supreme Court and California Occupational Safety and Health Appeals Board decisions, UPSF is required to pay for its employees' protective footwear. These decisions provided fair notice of the payment requirement. We affirm the trial court's denial of the petition for writ of mandate.
BACKGROUND
In 1973 the Legislature enacted the California Occupational Safety and Health Act (Act) for the stated "purpose of assuring safe and healthful working conditions for all California working men and women by authorizing the enforcement of effective standards, assisting and encouraging employers to maintain safe and healthful working conditions." (Lab. Code, § 6300.) All safety standards in California Code of Regulations, title 8 are to give effect to the Labor Code. (In re Southern California Edison (Cal. O.S.H.A., Aug. 26, 1985, No. 81-R4D4-663) 1985 CA OSHA App. Bd. LEXIS 98.)
Under the Act, the Legislature assigned rulemaking, enforcement, and adjudicatory powers to three different administrative bodies—the Standards Board, the Division of Occupational Safety and Health (Division), and the Appeals Board, respectively. (See Lab. Code, §§ 140-147.6 [the Standard Board's functions], 175-176 [the Division's functions], 148-149.5 [the Appeals Board's functions].)
This case began when the Division inspected a UPSF facility in California and issued a citation to UPSF for a workplace violation. UPSF appealed the violation. In lieu of a hearing, the parties agreed to submit briefs to the ALJ who heard UPSF's appeal. In their briefing, the parties stipulated to the following facts and issues:
On June 8, 2016, after an inspection of UPSF's worksite in Bloomington California, the Division issued a citation to UPSF for a violation of California Code of Regulations, title 8, section 3385, subdivision (a). The citation states that "the employer did not ensure that industrial truck operators and employees working in the zone of danger were provided with appropriate foot protection, including but not limited to steel-toed safety shoes." The Division and USPF agreed appropriate protective footwear was required to be worn by employees and employees were wearing such footwear at the time of the inspection. The parties also agreed USPF had not paid for the protective footwear. The parties agreed the "ultimate issues with respect to the footwear are whether UPSF is required to pay for the footwear that is in use at its facility and what classification the citation should carry if it is upheld."
The parties use the terms regulations, standards and general safety orders to refer to sections found in California Code of Regulations, title 8, article 10. All further unspecified references are to California Code of Regulations, title 8.
The ALJ issued a decision upholding the citation. The ALJ reasoned in pertinent part: "Labor Code sections 6401 and 6403 have been interpreted to mean that employers must pay for safety equipment, which is required to protect employees from hazards they are exposed to at work. These statutes are 'general laws enacted to insure the health and safety of employees.' (Bendix Forest Products Corp. v. Division of Occupational Safety and Health (1979) 25 Cal.3d 465, 470 and 471 [(Bendix)].) . . . Where an employer requires an employee to wear safety shoes per section 3385, subdivision (a), they are 'reasonably necessary to protect the life, safety and health of employees', and must be furnished or provided by employer at employer's expense. (Newman Flange & Fitting Company, Cal/OSHA App. 07-2581, Decision After Reconsideration (Oct. 5, 2011).)"
UPSF filed a petition for reconsideration, which the Appeals Board denied. The Board explained its ruling in pertinent part: "The California Supreme Court in Bendix ruled that Bendix Forest Products had to pay for gloves needed for employee hand protection. (Bendix, supra, 25 Cal.3d at p. 473.) Employer argues that since the issue in Bendix was whether the employer had to pay for employees' hand protection equipment, it is distinguished from the instant foot protection issue. [¶] We do not agree that Bendix is so distinguished because the decision rested on statutory provisions relating to safety equipment in general and not just hand protection. As pointed out in Bendix, Labor Code section 6401 states that 'Every employer shall furnish and use safety devices and safeguards . . . which are reasonably adequate to render such employment and places of employment safe and healthful. . . .' (Bendix, supra, 25 Cal.3d at p. 471.)" The Board elaborated: "Furnish means 'to supply, provide or equip with whatever is necessary or useful.' " The Board added: "Bendix also cited Labor Code section 6403, which requires, in pertinent part, employers 'To provide and use safety devices and safeguards reasonably adequate to render the employment and place of employment safe.' The Court held that those provisions supported the view that employers are required to pay for safety equipment, stating, 'Nor do we find error in the Division's interpretation of [Labor Code] section 6403 []' as well as [Labor Code] section 6401. (Bendix, at p. 471.)"
The Board concluded: "Because Bendix rested on Labor Code provisions requiring employers to 'furnish' and 'provide' safety equipment not limited to hand protection equipment, we do not agree that it is distinguishable on that basis. (Labor Code §§ 6401, 6403, respectively.) We therefore hold that Labor Code sections 6401 and 6403 require Employer to pay for foot protection satisfying the requirements of section 3385, subdivision (a)."
The Board concluded Bendix gave UPSF "fair notice of its obligation to pay for footwear, and even if it did not, Labor Code sections 6401 and 6403 do. . . . Moreover, Bendix specifically found 'no error' in the interpretation that Labor Code sections 6401 and 6403 require employers to pay for necessary safety equipment. It follows that the Board historically and the ALJ in her Decision correctly interpreted Bendix and applied it to the instant matter. [¶] As to Employer's claim of lack of notice, we also point out that in 2011 the Board held that employers are obligated to pay for employees' foot protection required by section 3385, subdivision (a). (Newman Flange & Fitting Company, Cal/OSHA App. 07-2581, Decision After Reconsideration (Oct. 5, 2011).)"
UPSF filed a petition for writ of mandate in the superior court, which was denied. This appeal followed.
DISCUSSION
A. Standard Of Review
Our role on appeal is the same as that of the trial court in ruling on the writ petition. (Lusardi Construction Co. v. California Occupational Safety & Health Appeals Bd. (1991) 1 Cal.App.4th 639, 643 (Lusardi Construction).) We decide the matter on the record of the administrative proceedings. The scope of our review is delineated by Labor Code section 6629, which provides that we may determine whether the Board acted without or in excess of its powers, the order or decision was procured by fraud, the order or decision was unreasonable, the order or decision was not supported by substantial evidence or the findings of fact do not support the order or decision. (Lab. Code, § 6629.)
When an administrative agency such as the Board is charged with enforcing a particular statute or regulation, its interpretation of the statue or regulation will be accorded great weight by the courts and will be followed if not clearly erroneous. (Davey Tree Surgery Co. v. Occupational Safety & Health Appeals Bd. (1985) 167 Cal.App.3d 1232, 1240; Lusardi Construction, supra, 1 Cal.App.4th at p. 645.) B. UPSF Received Fair Notice Of Its Obligation To Pay For Required Protective Footwear For Its Employees.
UPSF contends it did not have "fair notice" it had to pay for its employees' protective footwear. UPSF contends Bendix could not provide fair notice because UPSF was not cited for violating the same statutes as the Bendix employer. In UPSF's view, the Court in Bendix ultimately held Labor Code section 6403 supported the requirement that employers must pay for the protective handwear described in section 3384. In contrast, the only section referred to in UPSF's citation was section 3385(a), not 3384 or 6403.
Here UPSF mixes two concepts. "Fair notice" is a prospective concept, intended to ensure that the law has "the degree of certainty necessary for an ordinary person to conform his or her conduct to the requirements of the law." (People v. Nguyen (1984) 161 Cal.App.3d 687, 691-692.) On the other hand, the notice provided by a citation is largely retrospective, intended to inform a person that his or her past conduct has violated the law; it must also be sufficient to permit the alleged violator to prepare a defense.
1. The Citation Provided Adequate Notice to UPSF to Prepare Its Challenge to the Alleged Violation.
We consider first the issue of the notice provided by the citation. The citation refers to section 3385(a). UPSF claims, without citation to relevant legal authority, that the Division was also required to list Labor Code sections 6401 and 6403 in the citation in order to provide "fair notice." UPSF further claims, without citation to any legal authority, that "[t]he Board is not permitted to rewrite a citation for the Division nor to enforce provisions of the Labor Code that have not been issued by the Division."
There is no immutable pleading requirement for citations. Decisions of the OSHA Appeals Board state that reference in a citation to a safety order may be modified before the hearing, during the hearing, or even after the hearing to conform to proof. (In re Williams Brothers Engineering Company (Cal. O.S.H.A., Dec. 18, 1984, No. 79-R3D5-1355) 1984 CA OSHA App. Bd. LEXIS 78; In re Hood Corporation (Cal. O.S.H.A., Feb. 14, 1986, No. 83-R5D2-0093, 0094) 1986 CA OSHA App. Bd. LEXIS 8.) The essential question for the administrative proceedings is whether the alleged violator has received sufficient notice of the violation to cure any surprise and prepare a defense. (In re General Motors, Assembly Division (Cal. O.S.H.A., Oct. 5, 1984, No. 80-R4D5-1179) 1984 CA OSHA App. Bd. LEXIS 3); see Stearns v. Fair Employment Practice Com. (1971) 6 Cal.3d 205, 213 [administrative proceedings are not bound by strict rules of pleading].)
If an employer argues another provision more particularly addresses the violation as alleged by the Division, the employer must show it has complied with that provision. (In re General Motors, Assembly Division, supra, 1984 CA OSHA App. Bd. LEXIS 3.) Here, if UPSF is arguing that Labor Code sections 6401 and 6403 apply rather than section 3385(a), UPSF must show it has complied with those provisions. We see no such showing.
Here, the citation stated UPSF "did not ensure that [employees] were provided with appropriate foot protection." UPSF acknowledges the word "provide" means "pay for." In its appeal from the citation, UPSF did not argue employers are not required to pay for footwear described in section 3385(a). UPSF argued, in effect, that the required footwear was not the type of protective footwear for which an employer must pay. UPSF stated: "These shoes are not specialty shoes and can be worn at times other than work." The first brief filed by UPSF acknowledged the Division was taking "the position that the California Supreme Court's decision in [Bendix] is controlling on the issue of an employer's duty to pay for appropriate footwear." UPSF itself argued "it was Section 6403 of the Labor Code that served as the basis for the Division's position in Bendix." Thus, UPSF had adequate notice of the charge against it, and the legal basis for the Division's requirement that UPSF pay for its employees' protective footwear.
2. UPSF Had the Fair Notice Needed to Conform Its Conduct to the Law
Supreme Court opinions interpreting statutory language may be taken into account in determining if a statute provides fair notice. (See People v. Superior Court (Caswell) (1988) 46 Cal.3d 381, 390.) Here UPSF argues Bendix did not give it fair notice (before the citation was issued) because the Bendix Court considered section 3884, not section 3385(a). We do not agree.
The concept of " 'fair notice' or 'fair warning,' focuses on the degree of certainty necessary for an ordinary person to conform his or her conduct to the requirements of the law. "Fair notice" requires only that a violation be described with a " 'reasonable degree of certainty' " . . . so that "ordinary people can understand what conduct is prohibited." ' " (People v. Nguyen, supra, 161 Cal.App.3d at pp. 691-692.)
The Bendix opinion arises out of the employer's primary responsibility for safety in the workplace, as set forth in Labor Code sections 6400, 6401 and 6403. These are "general laws enacted to insure the health and safety of employees." (Bendix, supra, 25 Cal.3d at pp. 470-471.) Labor Code section 6401 states the employer is required to "furnish and use safety devices and safeguards . . . reasonably adequate to render such employment and place of employment safe and healthful," while section 6403 of the Labor Code state the employer shall not fail or neglect to "provide and use safety devices and safeguards reasonably adequate to render the employment and place of employment safe."
The Bendix Court found no error in the Division's interpretation of the word "provide" in Labor Code section 6403 and the word "furnish" in Labor Code section 6401 to mean "pay for" required safety devices. (Bendix, supra, 25 Cal.3d at pp. 471-472.) The Court more specifically found the Division "did not err in interpreting the law and standards to require the employer to bear the expense" of the necessary protective handwear at issue. (Id. at p. 473.)
In the section of its brief headed "Bendix Decision Does Not Provide FPSF Fair Notice," UPSF acknowledges that the Court in Bendix expressly stated it was not deciding whether the payment for personal protective equipment was a proper subject for collective bargaining. Then, in a footnote, UPSF states it has a collective bargaining agreement with its employees which is silent on the issue of who is to pay for footwear. UPSF has not historically paid for the footwear. UPSF asserts nonpayment is consistent with the federal OSHA standard on protective footwear, which states the employer is not required to pay for "non-specialty safety-toe protective footwear." UPSF has not provided any reasoned argument or legal authority to explain how either circumstance affects the authority of the Division to issue the citation at issue or the correctness of the Board's decision in this matter. (See Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862-863 [argument waived if not raised or supported by reasoned argument and citations to authority].)
UPSF does not explain why the reasoning of Bendix applies to section 3384 only and not to section 3385(a). At the time Bendix was decided, section 3384 provided: " 'Hand protection may be required for employees whose work regularly exposes their hands to hazardous substances, cuts or burns.' " (Bendix, supra, 25 Cal.3d at p. 468, fn. 4.) The Bendex Court described section 3384 as an accompanying regulation" of Labor Code section 6403. (Bendix, at p. 471) The Bendex Court concluded that the Division "did not err in interpreting the law and standards to require the employer to bear the expense" of protective handwear. (Id. at p. 473.)
At times, UPSF argues the Court relied on a "special order" and not section 3384. This is incorrect. The employer in Bendix was cited for failing to pay for protective handwear pursuant to a "special order" issued under the authority of Labor Code sections 6305 and 6308. However, the Division found, and the Court agreed, that the special order did not comply with Labor Code section 6305. (Bendix, supra, 25 Cal.3d at pp. 468, 470.) The Division found it nevertheless had authority under section 3383 to order the use of protective handwear and "to require that the employer provide them." (Bendix, at p. 468.) The Court found no error in the Division's "interpretation of [Labor Code] section 6403 and the accompanying regulation, section 3384." (Bendix, at p. 471.)
Labor Code sections 6401 and 6403 require an employer to pay for necessary protective equipment. Section 3385(a) is found in the same article as section 3384; that article is titled "Personal Safety Devices and Safeguards." It is likewise an accompanying regulation to Labor Code section 6304. Sections 3384 and 3385(a) both refer to "required" protective wear. Both involve forms of protective "clothing" worn by employees: handwear and footwear. As was the situation in Bendix, it is undisputed that the protective wear was required for the particular place of employment cited by the Division.
Section 3385(a) provides in full: "Appropriate foot protection shall be required for employees who are exposed to foot injuries from electrical hazards, hot, corrosive, poisonous substances, falling objects, crushing or penetrating actions, which may cause injuries or who are required to work in abnormally wet locations."
The reasoning of Bendix applies, at a minimum, to section 3385(a) and requires employer payment for protective footwear. UPSF is presumed to know the law. (See Robinson v. Fair Employment & Housing Com. (1992) 2 Cal.4th 226, 244 ["employers are presumed to know the law" applicable to them].) Bendix alone provided fair notice.
Even if there were uncertainty about the application of the Bendix reasoning to section 3385(a), that uncertainty was resolved well before the citation was issued in this case. In Newman Flange & Fitting Company, the Board explained that "Labor Code sections 6401 and 6403 have been interpreted to mean that employers must pay for safety equipment which is required to protect employees from hazards they are exposed to at work. ([Bendix, supra, 25 Cal.3d at pp. 470, 471.]) Those statutes, among others, are 'general laws enacted to insure the health and safety of employees.' (Bendix, [at p.] 470.) . . . Since safety shoes are 'required' to be worn by employees, per section 3385(a), they are 'reasonably necessary to protect the life, safety and health of employees[,]' and therefore must be furnished or provided by Employer at Employee's expense." (In re Newman Flange & Fitting Company (Cal. O.S.H.A., Oc. 5, 2011, No. 07-R2D4-2581) 2011 CA OSHA App. Bd. LEXIS 146, at pp. 13-14 (Newman Flange).)
UPSF contends Newman Flange expanded Bendix beyond its facts when the Supreme Court had warned against doing so. In Tidewater Marine Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557, 573 (Tidewater), the Court described Bendix as involving "the interpretation of a regulation in the context of a specific adjudication, not a blanket interpretation that the agency memorialized in a policy manual, intending to apply it in all cases of a particular class or kind." UPSF argues the Tidewater Court decreed "the Bendix decision should not be used for . . . broad application to all 'cases of a particular class or kind.' " We disagree.
UPSF has misread Tidewater. The Court in Tidewater was responding to the Court of Appeal's finding that an agency's policy for calculating overtime was not a regulation within the meaning of the APA but was "merely an interpretation precedent to enforcement." The Supreme Court explained that the Bendix opinion was not helpful because it "involved the interpretation of a regulation in the context of a specific adjudication, not a blanket interpretation that the agency memorialized in a policy manual, intending to apply it in all cases of a particular class or kind." (Tidewater, supra, 14 Cal.4th at p. 573.) This is not a warning against the broad application of Bendix. The reference to the "blanket interpretation that the agency memorialized in a policy manual intending it to apply in all cases" was to the agency's blanket interpretation of the proper method of calculating overtime, which method the agency intended to be applied in all cases. Nothing in Tidewater prevents the holding of Bendix from being applied to other sections in article 10.
The Board in Newman Flange made just such a permitted application of Bendix. It considered the language of section 3385(a) and Labor Code sections 6401 and 6403, including the analysis of the Labor Code sections by the Supreme Court in Bendix. As we discuss above, UPSF has not provided any cogent reason why Labor Code section 6403, as interpreted by Bendix, would be inapplicable to section 3385(a). The analysis in Newman Flange is not flawed and is sufficient to give employers notice of the Board's view that Labor Code section 6403 applies to the specific standard set forth in section 3385(a) and requires employers to pay for protective footwear. C. UPSF Has Forfeited Its Claim of Improper Rulemaking.
UPSF contends the Board is attempting to designate Newman Flange as binding precedent on the issue of payment for footwear, thereby circumventing the rulemaking process entirely. Respondent contends UPSF has waived this argument by failing to raise it in the motion for reconsideration. We agree.
The California Rules of Court require separate headings. This is an additional reason for forfeiture.
UPSF did not mention Newman Flange at all in the brief it filed with the ALJ. The ALJ cited Newman Flange in its decision. UPSF then moved for reconsideration and as part of that motion asked the Board to "reconsider" Newman Flange. The only specific error UPSF identified was "in the Newman Flange case, the Appeals Board has . . . read into the safety order language that requires payment for appropriate footwear when the Standards Board has explicitly chosen not to use language [that] would require an employer to pay for appropriate footwear." UPSF cited an Occupational Safety and Health Appeals Board decision that the Board may not read language into a safety order. This is not an argument that Newman Flange was being improperly designated as binding precedent or that doing so would be improper rulemaking.
A petitioner waives all objections, irregularities, and illegalities except those asserted in the petition for reconsideration. (Lab. Code, § 6618.) Thus, UPSF cannot raise this alleged illegality now. (Kaiser Foundation Hospitals v. Occupational Safety & Health Appeals Bd. (1984) 155 Cal.App.3d 282, 286, fn. 2.) D. Bendix Is Still Good Law.
UPSF argues two post-Bendix events show the Standards Board did not intend employers to pay for protective footwear. First, UPSF contends the Standards Board's failure to amend section 3385(a), after it amended section 3384 in 2014, shows the Board did not intend to require employers to pay for protective footwear. Second, UPSF contends the Board's unsuccessful attempt in 2011 to promulgate a new regulation, proposed section 3800.1, shows an employer's duty to pay for all protective gear was unclear; UPSF contends the Standards "Board stated that the payment for [personal protective equipment] was intended for standards where verbiage such as 'provided' was used."
1. Unadopted Section 3800.1 Has No Probative Value.
UPSF has not provided a citation showing the text of proposed section 3800.1. UPSF's omissions are not significant, however, in light of the general rule that legislative inaction is " ' "a weak reed upon which to lean." ' " (Troy Gold Industries, Ltd. v. Occupational Safety & Health Appeals Bd. (1986) 187 Cal.Ap.3d 379, 391, fn. 6.)
"Usually it is not possible by purely deductive reasoning to account for the failure of bills to gain approval as they run the gamut of legislative committees." (Oakland Police Officers Association v. City of Oakland (1973) 30 Cal.App.3d 96, 101) Thus, the Court in Oakland specifically rejected an argument similar to the one UPSF makes in this case: "We also reject respondents' argument that because certain bills which would have provided for payment of the equipment in question were defeated by the Legislature in 1963 (AB 1390), in 1965 (AB 1319), and 1967 (AB 902), it must be concluded that at no time did the Legislature consider the equipment as coming within the [payment] provisions of Labor Code section 6401." (Ibid.)
Generally, unpassed bills invoke conflicting inferences. (Sacramento Newspaper Guild v. Sacramento County Bd. of Suprs. (1968) 263 Cal.App.2d 41, 57-58 ["Some legislators might propose them to replace an existing prohibition; others to clarify an existing permission. A third group of legislators might oppose them to preserve an existing prohibition, and a fourth because there was no need to clarify an existing permission."]) Thus, "[t]he light shed by such unadopted proposals is too dim to pierce statutory obscurities. As evidences of legislative intent they have little value." (Ibid.)
Although here we consider administrative rulemaking rather than legislative action on bills, the same reasoning applies. Accordingly, we do not adopt UPSF's argument that the Standards Board's mere contemplation of promulgating section 3800.1 means the Standards Board believed current law did not require employer to pay for all personal protective equipment. (See Ambrose v. Cranston (1968) 261 Cal.App.2d 137, 142 [declining to consider evidence of unadopted bill because it raised conflicting inferences, one of which was that the Legislature deemed the existing law adequate].)
2. The Standards Board's Action in Amending Section 3384 Does Not Show the Board's Intent in Leaving Section 3385(a) Unaltered.
In 2014, section 3384 was amended to add the word "provide," so that it reads in pertinent part: "Employers shall select, provide and require employees to use appropriate hand protection . . . ." UPSF contends the Standards Board added the word "provide" to clarify the intent of section 3384, subdivision (a); without citation to authority, UPSF claims the Board uses the word "provide" when it intends that an employer pay for the required equipment. UPSF argues if the Standards Board had intended for employers to pay for appropriate footwear, "it would have similarly amended Section 3385(a) to make the intent clear."
The same principles that apply to the non-adoption of proposed section 3800.1 also apply to the Board's failure to amend 3385(a). There could be many reasons for this inaction, which is a weak reed to lean upon.
Further, UPSF's foundational argument that the Standards Board added the word "provide" to section 3384 to clarify that employers are required to pay for hand protection is particularly unpersuasive. Section 3384 is the section which least needs clarification. Bendix was and is clear that the employer must pay for protective handwear. In addition, we note that although UPSF's highlighting of the single word "provide" in its brief implies this was the only change made by the 2014 amendment, that is not the case. The 2014 amendments were extensive. An argument giving major significance to one word out of many is unconvincing on its face.
The 2013 version of section 3384, subdivision (a) contained the following provisions:
"Hand protection shall be required for employees whose work involves unusual and excessive exposure of hands to cuts, burns, harmful physical or chemical agents or radioactive materials which are encountered and capable of causing injury or impairments."
The current version, as amended in 2014, states: "Employers shall select, provide and require employees to use appropriate hand protection when employee's hands are exposed to hazards such as those from skin absorption of harmful substances, cuts or lacerations, abrasions, punctures, chemical burns, thermal burns, radioactive materials, and harmful temperature extremes. [¶] EXCEPTION: Hand protection for cuts, lacerations, and abrasions shall not be required when the employer's personal protective equipment hazard assessment, required by Section 3380(f) of this Article, determines that the risk of such injury to the employee's hands is infrequent and superficial." (Cal. Code Regs., tit. 8, § 3384, subd. (a).)
Similarly, section 3384, subdivision (b), while not directly relevant to any issue on this appeal, was substantially expanded, to add two notes elaborating on entanglement risks.
3. The Language of Section 3380 Does Not Show the Standards Board's Understanding of Employer Payment Requirements.
UPSF points to section 3380 to buttress its argument that the Standards Board did not believe or intend that all required protective gear should be paid for by the employer.
Section 3380, subdivision (d) provides: "The employer shall assure that all required safety devices and safeguards, whether employer or employee provided, including personal protective equipment for the eyes, face, head, hand, foot, and extremities (limbs), protective clothing, respiratory protection, protective shields and barriers, comply with the applicable Title 8 standards and are maintained in a safe, sanitary condition."
UPSF argues that this regulation shows that the "Standards Board specifically anticipated that some required safety devices would be 'employee provided,' " that is, paid for by the employee. The section dates back to at least 1974, and has been amended 4 times since then. UPSF offered no evidence of when the "employer or employee provided" language became a part of the section. The phrase may predate Bendix and now be superfluous. It may have been added after the Bendix decision to indicate the limitations of its reach. We will not speculate.
Section 3380 was not discussed in Bendix.
We do not find the bare language of current section 3380 useful. The clear purpose of this regulation is to make the employer responsible for (1) ensuring that all safety devices and safeguards meet the standards of title 8 and (2) maintaining those devices and safeguards. The phrase "employer or employee provided" is descriptive and UPSF has pointed to no proscriptive language which would prevent an employee from paying for his or her own protective equipment even though the employer has a duty to pay for that same equipment. An employee might, for example, desires a higher level of protection or find a different brand of equipment more comfortable. An employee's decision to pay for his or her own personal protective equipment does not relieve the employer of its responsibility to pay for that equipment. (Bendix, supra, 25 Cal.3d. at p. 473; Oakland Police Officers Association v. City of Oakland, supra, 30 Cal.App.3d at p. 101.)
DISPOSITION
We affirm the trial court's denial of the petition for writ of mandate.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, J. We concur:
BIGELOW, P. J.
GRIMES, J.