 |
 |
|
|
|
|
| search a lawyer |
|
|
| ACTS, STATUTES |
|
|
|
|
|
|
|
|
|
|
|
|
| Home > Statutes > Usa Arizona |
|
USA Statutes : arizona
Title : Labor
Chapter : EMPLOYMENT PRACTICES AND WORKING CONDITIONS
|
|
23-201 Obtaining labor by false pretenses; civil liability; classification
A. A person who employs for wages any person in any occupation, and who at the time
of employing him does not have sufficient assets within the county in which the work or
labor is to be performed over and above all exemptions allowed by law to cover the amount
of wages accruing to the employee for the term of two weeks, and who makes false
representations or pretenses as to having such assets, and after labor has been done by
the employee under such employment, fails, upon the employee's discharge or resignation,
or for a period of five days after the wages are payable, to pay the employee, on demand,
the wages due, is guilty of obtaining labor under false pretenses.
B. Upon conviction, and in the same proceeding, judgment shall be rendered in favor
of the employee and against the employer for all wages unpaid, together with a reasonable
attorney's fee to be fixed by the court. The judgment shall also include compensation to
the employee at the same rate at which the wages were agreed to be paid, from the time
they became due until the judgment is satisfied.
C. The judgment shall be a first and prior lien against the property of the
employer upon which the work and labor was performed.
D. Obtaining labor under false pretenses is a class 1 misdemeanor.
23-202 Exaction of fee or gratuity as condition of employment prohibited; classification
It is unlawful for a person charged or entrusted by another with the employment or
continuance in employment of any workmen or laborers to demand or receive, either
directly or indirectly, from a workman or laborer employed or continued in employment
through his agency or under his direction or control, a fee, commission or gratuity of
any kind as the price or condition of the employment of the workman or laborer, or as the
price or condition of his continuance in such employment. Any person charged or
entrusted with employment of laborers or workmen for his principal, or under whose
direction or control the workmen and laborers are engaged in work and labor for the
principal, who violates a provision of this section is guilty of a class 2 misdemeanor.
23-203 Compulsion or coercion of employee or another to buy from a particular person; classification
A person who knowingly compels, or in any manner seeks to coerce any employee or any
person to purchase goods or supplies from any particular person is guilty of a class 2
misdemeanor.
23-230 Definitions
In this article, unless the context otherwise requires:
1. "Automatic elevator" means a passenger or freight lift operated by push buttons
so that the starting, moving, leveling, holding and opening and closing of the doors is
entirely automatic.
2. "Clay construction product" means brick, hollow structural tile, sewer pipe,
refractories, architectural terra cotta, glazed structural tile, roofing tile, stove
lining, chimney pipes and tops, wall coping and drain tile.
3. "Construction" means building, altering, repairing, adding to, subtracting from,
improving, moving, wrecking or demolishing a building, highway, road, railroad,
excavation or other structure, project, development or improvement, including the
erection and use of scaffolding or a similar structure and providing mechanical or
structural service for a structure, project, development or improvement.
4. "Elevator" means a power-driven hoisting or lowering mechanism equipped with a
car or platform which moves in guides in a substantially vertical direction. Elevator
does not include dumbwaiters.
5. "Explosive" means ammunition, black powder, blasting caps, fireworks or any
substance or combination of substances commonly used for the purpose of detonation and
which, on exposure to any external force or condition, is capable of a relatively
instantaneous release of gas and heat.
6. "Hazardous agricultural chemicals" means any substance that has a toxicity level
that requires manufacturer or distributor labeling as category I, category II and
category III toxicity in accordance with the regulations adopted by the administrator
pursuant to the federal environmental pesticide control act of 1972, as amended.
7. "Logging" means felling timber, bucking or converting timber into logs, poles,
piles, ties, bolts, pulpwood, chemical wood, excelsior wood, cordwood, fence posts or
similar products, collecting, skidding, yarding, loading, transporting and unloading such
products, constructing, repairing and maintaining roads, railroads, flumes or camps used
in connection with logging, moving, installing, rigging and maintenance of machinery or
equipment used in logging, operation of a sawmill, lath mill, shingle mill or cooperage
stock mill in connection with the storing of logs and bolts, converting logs or bolts
into sawed lumber, laths, shingles or cooperage stock and storing, drying and shipping
lumber, laths, shingles and cooperage stock or other products of such mills.
8. "Manufacturing" means designing, assembling, fabricating, producing,
constructing or preparing a product or part of a product before sale or use.
9. "Mine or quarry" means an underground or surface rock or mineral extracting,
placer, dredging or bore-hole operation including all grinding and metal mills, washer
plants and any other cutting, crushing, grinding, screening, sizing, washing or cleaning
operation performed on extracted rocks or minerals.
10. "Motor vehicle" means an automobile, truck, truck tractor, trailer, semitrailer,
motorcycle or similar vehicle propelled or drawn by mechanical power and designed for use
as a means of transportation. Motor vehicle does not include a vehicle operated
exclusively on rails.
11. "Outside helper" means a person who rides on a motor vehicle other than in the
driver or passenger compartment for the purpose of transporting, loading or unloading
items.
12. "Power-driven bakery machine" means a horizontal or vertical dough mixer, batter
mixer, bread dividing, rounding or molding machine, dough brake, dough sheeter,
combination bread slicing and wrapping machine, cake cutting band saw, cookie machine or
cracker machine.
13. "Power-driven hoist" means an apparatus for raising or lowering a load by the
application of a pulling or pushing force including a crane, derrick or
forklift. Power-driven hoist does not include an elevator or an automatic elevator.
14. "Power-driven meat processing machine" means a meat patty forming machine, meat
and bone cutting saw or knife, head splitter, guillotine cutter, snout puller, jaw
puller, skinning machine, horizontal rotary washing machine, casing cleaning machine,
grinding, mixing, chopping and hashing machines and meat presses.
15. "Power-driven metal working, forming, punching or shearing machine" means a
machine, other than machine tools, which changes the shape of or cuts metal by means of
dies, rolls, knives or similar tools which are mounted on rams, plungers or other moving
parts.
16. "Power-driven paper products machine" means a platen die-cutting press, platen
printing press, punch press which involves hand feeding of the machine, arm-type
wirestitcher or stapler, circular or band saw, corner cutter or mitering machine,
corrugating and single or double-lacing machine, envelope die-cutting press, guillotine
paper cutter or shear, horizontal bar scorer, laminating or combining machine, sheeting
machine, scrap paper baler or vertical slotter or other machine used in the remanufacture
or conversion of paper or pulp into a finished product.
17. "Power-driven woodworking machine" means a fixed or portable machine or tool
driven by power and used or designed for cutting, shaping, forming, surfacing, nailing,
stapling, wire stitching, fastening, assembling, pressing or printing wood or veneer.
18. "Processing" means an activity involving an addition to, subtraction from,
change in or cleaning of any food or foodstuff including filleting fish, dressing poultry
or cracking nuts.
19. "Radiation" means ionizing radiation including gamma rays, x-rays, alpha and
beta particles, high speed electrons, neutrons, protons and other nuclear particles or
rays.
20. "Radioactive substance" means a solid, liquid or gaseous material or materials
that spontaneously emit radiation.
21. "Roofing" means all work performed in connection with the application of
weatherproofing materials and substances, including tar, pitch, asphalt, prepared paper,
tile, slate, metal, translucent materials and shingles of asbestos, asphalt or wood, to
roofs of buildings and other structures. Roofing includes all work performed in
connection with installation of roofs, including related metal work, and alterations,
additions, maintenance and repair including painting and coating of roofs.
22. "Silica refractory products" means items produced from raw materials and
containing free silica as their main constituent.
23. "Warehousing" means loading, unloading, storing or otherwise moving any item or
items to and from trucks, railroad cars, conveyors and buildings.
24. "Wrecking, demolition and shipbreaking" means all work, including cleanup and
salvage work, performed on or at the site of the total or partial razing, demolishing or
dismantling of a building, bridge, steeple, tower, chimney, other structure, motor
vehicle, ship or other vessel.
23-231 Prohibited employments of persons under the age of eighteen
A. Unless a variance is granted pursuant to section 23-241, a person shall not
employ or allow a person under the age of eighteen years to work in, about or in
connection with:
1. An establishment manufacturing or storing explosives, except a retail
establishment if the employment does not include any handling of explosives other than
prepackaged small arms ammunition. In this paragraph "small arms ammunition" means
ammunition not exceeding .60 caliber in size, shotgun shells or blasting caps.
2. Occupations as a motor vehicle driver or outside helper, except for driving
incidental to employment if the person has a valid license for operation of the vehicle
and either:
(a) The total driving time does not exceed two hours per day or twenty-five per
cent of the work period per day.
(b) The total mileage driven is fewer than fifty miles per day.
3. Mine or quarry occupations.
4. Logging occupations.
5. Occupations involving the operation, setup, repair, adjustment, oiling or
cleaning of a power-driven woodworking machine.
6. Occupations involving exposure to radioactive substances and to radiation in
excess of 0.5 rem per year.
7. Occupations involving the operation or assistance in the operation of a
power-driven hoist with a capacity exceeding one ton or an elevator, except operation of
an automatic elevator incidental to employment.
8. Occupations involving the operation of a power-driven metal working, forming,
punching or shearing machine.
9. Occupations involving slaughtering, meat packing, processing or rendering of
meat or the operation, setup, repair, adjustment, oiling or cleaning of a power-driven
meat processing machine.
10. Occupations involving the operation of a power-driven bakery machine.
11. Occupations involving the operation of a power-driven paper products machine.
12. Occupations involving the manufacture of clay construction products or silica
refractory products.
13. Occupations involving the operation of a power-driven saw.
14. Occupations involving wrecking, demolition and ship-breaking operations.
15. Occupations involving roofing operations or equipment attached to or placed on
roofs.
16. Occupations in excavation or tunnel operations, except manual excavation,
backfilling or working in trenches or other penetrations of the ground surface that do
not exceed two feet in depth at any point.
B. The industrial commission may by regulation declare other occupations to be
dangerous to lives or limbs or injurious to the health and morals of persons under the
age of eighteen years and prohibit the employment or allowance to work in, about or in
connection with the occupations by such persons unless a variance is granted.
23-232 Prohibited employments of persons under the age of sixteen
A. In addition to the prohibited employments under section 23-231, unless a
variance is granted pursuant to section 23-241, a person shall not employ or allow a
person under the age of sixteen years to work in, about or in connection with:
1. Manufacturing.
2. Processing.
3. Laundering or dry cleaning in a commercial laundry.
4. Warehousing.
5. Construction.
6. Boiler, furnace or engine rooms.
7. Occupations, including window washing, involving work from a ladder, scaffold,
window sill or similar structure or place more than five feet in height.
8. Any of the following activities in a retail food or gasoline service
establishment:
(a) Maintenance or repair of machines or equipment of the establishment, except
work in connection with cars and trucks if confined to dispensing gasoline and oil,
courtesy service, car cleaning, washing and polishing but not including work involving
the inflation of any tire mounted on a rim equipped with a removable retaining ring.
(b) Cooking and baking, except at soda fountains, lunch counters, snack bars or
cafeteria serving counters.
(c) Setting up, adjusting, cleaning, oiling or repairing power-driven food slicers,
grinders, choppers and cutters.
(d) All work in preparation of meats for sale, except wrapping, sealing, labeling,
weighing, pricing and stocking.
9. Any of the following activities in agriculture:
(a) Operating a tractor over twenty power take off horsepower that is not equipped
with a rollover protective structure and seatbelts.
(b) Connecting or disconnecting an implement or any of its parts to or from a
tractor over twenty power take off horsepower.
(c) Operating a corn picker, cotton picker, grain combine, hay mower, forage
harvester, hay baler, potato harvester, mobile pea viner, feed grinder, crop dryer,
forage blower, auger conveyor or self-unloading wagon, power post hole digger,
power-driven nonwalking rotary type tiller, trencher or earthmoving equipment or potato
combine. In this subdivision "operating" means starting, stopping, adjusting, feeding or
any other activity regarding physical conduct associated with such machines and
machinery.
(d) Working in a pen occupied by a bull, boar or stud horse maintained for breeding
purposes, a sow with young pigs or a cow with a newborn calf.
(e) Felling, bucking, skidding or unloading timber with butt more than six inches
in diameter.
(f) Picking or pruning from a ladder over eight feet in height.
(g) Riding on a tractor as a helper or driving a bus, truck or automobile.
(h) Working inside a fruit storage area or grain storage area designed to retain an
oxygen deficient or toxic atmosphere, an upright silo within two weeks after silage has
been added, a manure pit or operating a tractor for packing purposes in a horizontal
silo.
(i) Handling hazardous agricultural chemicals.
(j) Handling explosives.
(k) Transporting, transferring or applying anhydrous ammonia.
B. The industrial commission may by regulation declare any other occupation to be
dangerous to lives or limbs or injurious to the health and morals of persons under
sixteen years of age and prohibit the employment or allowance to work in, about or in
connection with the occupations by such persons unless a variance is granted.
23-233 Permissible hours of labor for persons under the age of sixteen; exceptions; definition
A. Employment of persons under the age of sixteen shall be confined to:
1. Not more than forty hours in any one week when the person is not enrolled in a
session of school or when school is not in session.
2. Not more than eighteen hours in any one week when the person is enrolled in any
session of school when school is in session.
3. Not more than eight hours in any one day when the person is not enrolled in a
session of school or on a day when school is not in session.
4. Not more than three hours in any one day when the person is enrolled in any
session of school on a day when school is in session.
B. A person shall not employ persons under the age of sixteen at night nor shall
they be employed in solicitation sales or deliveries on a door-to-door basis between 7:00
p.m. and 9:30 p.m. on days preceding a day when school is in session and between 7:00
p.m. and 11:00 p.m. on days preceding a day when school is not in session.
C. The provisions of this section do not apply to persons who deliver newspapers to
a consumer.
D. For the purpose of this section, "night" means:
1. On a day preceding a day when school is in session, those hours beginning at
9:30 p.m. and continuing until 6:00 a.m. on the succeeding day.
2. On a day preceding a day when school is not in session, those hours beginning at
11:00 p.m. and continuing until 6:00 a.m. on the succeeding day.
23-234 Minimum age of newspaper carriers
No child under the age of ten years shall sell, expose for sale or otherwise offer
for sale newspapers, magazines or periodicals in any street or public place.
23-235 Exemptions
A. The provisions of sections 23-231, 23-232 and 23-233 shall not apply to persons:
1. Employed by a grandparent, brother, sister, aunt, uncle, first cousin,
stepparent or parent, including a relative of the same degree through marriage or
adoption, or person in loco parentis in occupations in which the grandparent, brother,
sister, aunt, uncle, first cousin, stepparent or parent or person in loco parentis owns
at least ten per cent of the employing organization and such owner is actively engaged in
the daily operation of the organization, if either:
(a) The person is under the age of eighteen years and not engaged in manufacturing
or mining occupations.
(b) The person is between the ages of sixteen and eighteen years and is engaged in
manufacturing or mining occupations.
2. Employed as stars or performers in motion picture, theatrical, radio or
television productions if before the beginning of production the production company
provides the department of labor of the industrial commission with the name and address
of the person, the length, location and hours of employment and any other information
required by the department.
3. Involved in career education programs.
4. Involved in vocational or technical training school programs pursuant to title
15, chapter 7, article 5.
5. Employed as apprentices and registered by the bureau of apprenticeship and
training of the United States department of labor in accordance with the standards
established by that bureau or registered by the apprenticeship council or employed under
a written apprenticeship agreement and conditions which are found by the secretary of
labor to conform substantially with such federal or state standards.
6. Trained under either the 4-H federal extension service or the United States
office of education vocational agriculture training programs, if employed outside school
hours on the equipment for which they have been trained.
7. Who have completed vocational or career education programs approved by the
department of education if the programs are directly related to the prohibited occupation
or employment or if working in the prohibited occupation is part of the vocational or
career education program.
8. Who are married.
9. Who have a high school diploma or its equivalent.
B. Sections 23-231 and 23-232 do not apply to:
1. The operation of power-driven equipment used in the care and maintenance of
lawns and shrubbery not connected to retail, food service and gasoline service
establishments.
2. Clerical employment in an office in which duties are performed without exposure
to the hazards described or defined in this article.
23-236 Cease and desist order; time for compliance; civil penalty
A. When the commission has reasonable cause to believe that any person is violating
any provision of this article or any rule or regulation adopted pursuant to this article
it may forthwith serve upon such person by registered or certified mail or in person a
cease and desist order. Such order shall state with particularity the act being done
that constitutes the violation, shall state in its entirety the certain requirement,
provision or rule or regulation being violated, and that the alleged violator is entitled
to a hearing if such hearing is requested in writing within twenty days after the date of
issuance of the order.
B. The cease and desist order shall include a civil penalty of not more than one
thousand dollars against the person named in the order. The civil penalty is payable to
the general fund.
23-237 Hearings on cease and desist orders
A. A cease and desist order issued by the commission shall become final upon the
expiration of the time during which a request for a hearing may be made pursuant to
section 23-236 unless the person or persons named in such order have made a timely
request for a hearing before the commission. The commission may refer the request for
hearing to an administrative law judge for the conduct of the hearing. If a hearing is
requested, the hearing shall be held thirty days from receipt of the request unless such
time is extended by the commission or the administrative law judge to which it is
assigned. Written notice of the time and place of the hearing shall be sent by the
commission or the administrative law judge to the person or persons requesting the
hearing at least fifteen days before the hearing. Such hearing shall be conducted
pursuant to title 41, chapter 6, article 6.
B. If the commission, after the hearing, determines that the act or acts set forth
in the cease and desist order constitute a violation of any provision of this article or
of the rules adopted pursuant to this article, the commission shall affirm or modify the
order accordingly.
C. The order issued by the commission after the hearing is final unless within
thirty days after the date of mailing of a copy of such order to the person named in the
order such person applies to the court of appeals for a writ of certiorari pursuant to
section 23-951. The order shall contain a statement of this right of appeal.
23-238 Injunctive relief
Upon the failure or refusal of a person to comply with a cease and desist order of
the commission, the commission may file an action in the superior court of the county
where the alleged violation occurred to restrain and enjoin the person from engaging in
further acts violating the order. The court shall proceed as in other actions for
injunctions. In the preliminary hearing in an action for an injunction or restraining
order brought pursuant to this article, any findings of the commission shall be prima
facie evidence of the fact or facts found therein until rebutted.
23-239 Violation; classification
Any person who violates any provision of this article is guilty of a class 2
misdemeanor.
23-240 Rules and regulations
The commission shall promulgate such rules and regulations as are necessary to carry
out the provisions of this article.
23-241 Application for variation; contents; notice; denial; hearing
A. A person who desires a variation from this article or a modification or renewal
of a variation granted under this section shall file a written application with the
director of the department of labor of the industrial commission containing the following
information:
1. The name and address of the firm, the name and title of the person filing the
application, the name and date of birth of the person under the age of eighteen years and
the name and address of the school the person under the age of eighteen years is
attending if the person is attending school.
2. The address of the place of employment involved and the type of business.
3. A specific description of the variation, modification or renewal sought.
4. A statement detailing how the granting of the variation would be in the best
interests of the person under the age of eighteen years and the community.
5. A statement indicating any training the person under the age of eighteen years
has received in the proposed employment, including a copy of certification of successful
completion of any training program.
6. The maximum hours to be worked in the employment on a daily and weekly basis.
7. The scale of wages and the method and timing of payment of wages.
8. A statement of how the safety, health and personal well-being of the person
under the age of eighteen years would be protected.
9. The name of the immediate supervisors and the frequency of supervision.
10. The approval of the parent or guardian.
B. The director, after conducting an investigation and evaluation of the jobsite
and application, shall notify the parties concerned by mail of the granting of a
variation, modification or renewal including any prescribed terms and conditions.
C. If a variation is granted, the employer shall retain a copy of the variation at
the place of employment of the person under the age of eighteen years.
D. The director may decline to consider an application for a variation on a
subject, issue or employer if a cease and desist order has been issued or an
investigation is proceeding.
E. On denial of a variation, modification or renewal by the director, the applicant
may request a hearing by the industrial commission. The industrial commission shall
conduct the hearing pursuant to title 41, chapter 4, article 1.
23-242 Applicability of other laws
No provision of this article alters or excuses noncompliance with any applicable
federal statute or regulation relating to the employment of child labor. If both federal
law and the provisions of this article are applicable, the law with the higher standard
governs.
23-281 Operation of certain railroad employers on prescribed time
No railroad employer of two hundred fifty or more persons may operate business on
other than the time as prescribed in section 1-242.
23-282 Underground mine employees and hoisting engineers; eight hour day; exceptions; violation; classification
A. Employment in mining activities in underground mines and underground workings is
declared injurious to health and dangerous to life and limb of those employed therein.
B. The period of employment for all persons employed or engaged in mining
activities in underground mines or underground workings or as hoisting engineers at
underground mines shall not exceed eight hours within any twenty-four hour period and the
eight hours shall include the time used in descending to and ascending from the point or
place of work in an underground mine or underground workings place of work.
C. The period of employment prescribed in subsection B may be deviated from in the
following instances:
1. In an emergency, where life or property is in imminent danger, the period of
labor prescribed in subsection B may be prolonged during the continuance of the
emergency.
2. The hours of employment may be changed from one part of the day to another at
stated periods, the change not to occur more than once in any two weeks, and the
employment may be for more than eight hours during the day in which the change is made.
3. If the employer has adopted a policy of longer periods of employment based on a
collective bargaining agreement between the employer and one or more labor organizations
representing one or more affected employees that expressly authorizes longer periods of
employment, but in no event longer than twelve hours in any twenty-four hour period,
subject to compliance with the terms and conditions for implementing periods of
employment in excess of eight hours as set forth in the collective bargaining
agreement. For purposes of this paragraph, "affected employees" means all or any group
of employees of the employer, regardless of whether or not the employees are members of a
labor organization, whose periods of employment are limited pursuant to subsection B of
this section.
D. Any person violating any provision of this section, and any person who, as
foreman, manager, superintendent, director, or officer of a corporation, or as employer
or superior officer of any person, knowingly commands, persuades, or allows any person to
violate any provision of this section is guilty of a class 2 misdemeanor.
E. Each day this section is violated constitutes a separate offense.
23-284 Laundry workers; exceptions; posting notice of hours of labor; arrangement of laundry rooms; violation; classification
A. No person shall be employed or permitted to work in the laundry department in a
laundry establishment more than eight hours in any one day except when necessary to make
repairs to prevent interruption of the ordinary running of the machinery or when a
different apportionment of the hours of labor is made for the sole purpose of making a
shorter day's work for one day of the week, or unless it appears that the employment is
to make up for time lost on some previous day of the same week in consequence of a
stoppage of the machinery upon which the person is employed or dependent for employment,
and in no case shall the hours of labor exceed forty-eight hours in a week.
B. Every employer shall post in a conspicuous place in every room where persons are
employed a printed notice stating the number of hours work required of them on each day
of the week, and the employment of any person for a longer period in any day than that so
stated is a violation of this section.
C. Every laundry room shall be constructed to provide at least six hundred cubic
feet of air for each occupant and shall have not less than two windows arranged to admit
a cross-current of external air.
D. A person violating any provision of this section is guilty of a petty offense.
23-286.01 Agricultural operations
A. Section 23-286, subsection A does not apply to drivers transporting agricultural
commodities or farm supplies for agricultural purposes if such transportation:
1. Is limited to an area within a one hundred air mile radius from the source of
the commodities or the distribution point for the farm supplies.
2. Is conducted during the planting and harvesting seasons in this state.
3. Is from the field to cooling facilities to the first point of processing or
packing.
B. A driver transporting agricultural commodities or farm supplies for agricultural
purposes shall not drive for any period after having been on duty sixteen hours following
eight consecutive hours off duty or for any period after having been on duty for one
hundred twelve hours in any consecutive seven day period except that:
1. A driver transporting special situation farm products from the field to cooling
facilities or a driver transporting livestock from pasture to pasture, during one period
of not more than twenty-eight consecutive days or a combination of two periods totaling
not more than twenty-eight days in a calendar year, may drive for not more than twelve
hours during any sixteen hour workday.
2. The director of the department of public safety, for good cause, may temporarily
waive the maximum on-duty time limits applicable to any seven day period if an emergency
exists due to inclement weather, natural disaster or an adverse economic condition that
threatens to disrupt the orderly movement of farm products during harvest for the
duration of the emergency. For purposes of this subdivision, an emergency does not
include a strike or labor dispute.
23-286 Operators of motor carriers and private carriers of property; record required; enforcement
A. A motor carrier or a private carrier of property or any officer or agent of the
carrier shall not require or permit any truck operator, bus operator, or helper to be on
duty for a period longer than ten consecutive hours. When any operator or helper has
been continuously on duty for ten hours he shall be relieved and shall not be permitted
to return to duty until he has been off duty at least eight consecutive hours. No
operator or helper who has been on duty ten hours in the aggregate in any twenty-four
hour period shall be required or permitted to continue or return to duty without having
had at least eight consecutive hours off duty.
B. Every motor carrier and private motor carrier of property shall keep a record on
forms provided by the corporation commission showing the day and the hour when any
operator or helper went on duty and the day and hour of his release, and the entries
shall be signed by the operator or helper to whom they apply. If an operator or helper
is on duty in a state other than this state, and then enters this state while still on
duty, the entries shall show the total time on duty, both within and without this
state. The record of hours of service shall be forwarded to the corporation commission
at the end of every thirty day period.
C. The department of public safety may require any operator or helper when entering
this state from any other state to sign a statement of the number of hours he has been on
duty without at least eight consecutive hours off duty.
D. The records and statements provided for by this section shall be open to
inspection by the department of public safety and the commission.
23-287 Requiring railroad employee to work longer than sixteen consecutive hours; classification
A company operating a railroad in whole or in part within the state which requires a
conductor, engineer, fireman, brakeman, telegraph operator or any employee who has worked
in his respective capacity for sixteen consecutive hours, except in case of casualty, or
actual necessity, to go on duty again, or to perform any work until he has at least nine
hours rest, or an officer or agent of such company who violates or permits to be violated
any provision of this section, is guilty of a petty offense.
23-311 Definitions
In this article, unless the context otherwise requires:
1. "Commission" means the industrial commission of ARIZONA.
2. "Directory order" means a temporary order which becomes mandatory as provided in
this article.
3. "Employee" means every minor in receipt of or entitled to compensation for labor
performed for any employer.
4. "Employer" means every person, firm, corporation, agent, manager,
representative, contractor, subcontractor, principal or other person having control or
direction of any minor employed at any labor, or responsible directly or indirectly for
the wages of another.
5. "Fair wage" means a wage both fairly and reasonably commensurate with the value
of the service or class of service rendered, and sufficient to meet the minimum cost of
living necessary for health.
6. "Mandatory order" means an order the violation of which is subject to the
penalties prescribed in section 23-329, subsection B.
7. "Minor" means a person of either sex under the age of eighteen years. A minor
employed as a part time worker whose principal occupation is that of student actually
attending public or private school shall not be deemed engaged in an employment within
the scope of this article.
8. "Occupation" means any class of work in any industry, trade, business, or branch
thereof, in which minors are gainfully employed, but does not include domestic service in
the home of an employer or agricultural labor.
9. "Oppressive and unreasonable wage" means a wage which is both less than the fair
and reasonable value of the services rendered and less than sufficient to meet the
minimum cost of living necessary for health.
10. "Wage" or "wages" means any compensation for labor measured by time, piece, or
otherwise.
11. "Wage board" means a board created as provided in section 23-314.
23-312 Powers and duties of commission
The commission or any authorized representative may:
1. Investigate and ascertain the wages of minors employed in any occupation.
2. Enter the place of business or employment of any employer of minors in any
occupation for the purpose of examining and inspecting all books, registers, payrolls,
and other records of the employer which in any manner pertain to or have a bearing upon
the question of wages of minors and for the purpose of ascertaining whether the orders of
the commission have been and are being complied with.
3. Require from the employer full and correct written statements of the wages paid
to all minors in his employment when the commission or any authorized representative
thereof deems necessary.
23-313 Investigation of wage rates
The commission, on the petition of twenty or more residents of the state engaged in
any particular occupation, shall cause an investigation to be made of the wages being
paid to minors in that occupation to ascertain whether any substantial number of minors
in the occupation are receiving oppressive and unreasonable wages as defined in section
23-311. If, on the basis of information in the possession of the commission, with or
without a special investigation, the commission is of the opinion that a substantial
number of minors in any occupation or occupations are receiving oppressive and
unreasonable wages as defined in section 23-311, it shall appoint a wage board, as
described in section 23-314, to report upon the establishment of minimum fair wage rates
for minors in such occupation or occupations.
23-314 Wage board; membership; organization; quorum; compensation
A. A wage board shall be composed of three representatives of the employees in any
occupation, trade or industry and an equal number of representatives chosen from among
the employers in the occupation, trade or industry, and one industrial commissioner who
shall be chairman.
B. The commission shall appoint as the members of the wage board the
representatives of the employers to be selected from nominations submitted by employers
and representatives from the employees employed in the occupation, trade or industry from
nominations submitted by the employees in the occupation, trade or industry. All persons
appointed as the representatives by the commission shall be citizens of the state and
shall be selected from individuals engaged in the occupation, trade or industry for which
a wage is being investigated.
C. Two-thirds of the members of the wage board constitute a quorum. The
recommendations or report of the wage board shall require a vote of not less than a
majority of all its members.
D. Members of the wage board, other than the industrial commissioner, shall, while
engaged in a conference, receive five dollars per day and the necessary cost of
transportation.
E. The commission shall make and establish from time to time rules and regulations
governing the selection of a wage board and its manner of procedure not inconsistent with
this article.
23-315 Classification of employments by wage board
A wage board may differentiate and classify employment in any occupation according
to the nature of the service rendered and recommend appropriate minimum fair wage rates
for different employments. A wage board shall give due consideration in the
classification of employment to such items of compensation in employment as board and
lodging or other factors that may be component parts of the total wage rate paid. A wage
board may also recommend minimum fair wage rates varying with localities, if in the
judgment of the wage board conditions make local differentiation proper and do not effect
an unreasonable discrimination against a locality.
23-316 Establishment of minimum fair wage; procedure; criteria
In establishing a minimum fair wage for any service or class of service under this
article, the commission, or the wage board, without being bound by any technical rules of
evidence or procedure, shall:
1. Take into account all relevant circumstances affecting the value of the service
or class of service rendered.
2. Be guided by like considerations as would guide a court in an action for the
reasonable value of services rendered where services are rendered at the request of an
employer without contract as to the amount of the wage to be paid.
3. Consider the wages paid in the state for work of like or comparable character by
employers who voluntarily maintain minimum fair wage standards.
4. Consider the minimum cost of living.
23-317 Learner and apprentice wage rates
A wage board may recommend a suitable scale of wage rates for learners and
apprentices in any occupation. The scale of learners' and apprentices' wage rates may be
less than the regular minimum fair wage rates recommended for experienced minors in the
occupation, but the board shall fix a definite period for which the scale of wages for
learners and apprentices shall be paid.
23-318 Power of wage board to administer oaths, issue subpoenas and take depositions
A. The chairman of a wage board may administer oaths and require by subpoena the
attendance and testimony of witnesses, the production of all books, records, and other
evidence relative to matters under investigation. The subpoenas shall be signed and
issued by the chairman of the wage board, and shall be served and shall have the same
effect as if issued from superior courts.
B. Obedience to subpoenas issued by authority of the wage board shall be enforced
in the superior court of the county in which the subpoena is issued.
C. A wage board may cause depositions of witnesses residing within or without the
state to be taken in the manner prescribed for taking depositions in civil actions in the
superior courts.
23-319 Notice of hearing on wage matters
Upon fixing the time and place for holding a hearing for considering wage matters
referred to in this article, and at least fourteen days before the date of the hearing,
the commission shall give public notice of the time, place and purpose thereof.
23-320 Duty of commission to provide information to wage board
The commission shall present to a wage board promptly upon its organization all the
evidence and information in its possession relating to wages of minors working in
occupations over which the wage board has authority to investigate as provided by this
article, and all other information which the commission deems relevant to the
establishment of a minimum fair wage for such minors, and shall present to the wage board
witnesses whom the commission deems material. A wage board may summon other witnesses or
request the commission to furnish additional information to aid in its deliberation.
23-321 Report of wage board; action by commission
A. Within ten days after its organization a wage board shall submit a report which
shall include its recommendations of minimum fair wage standards for minors in the
occupations the wage board was appointed to investigate. If the report is not submitted
within ten days, the commission shall appoint a new wage board.
B. A report from a wage board submitted to the commission shall be accepted or
rejected by the commission within ten days after its submission. If the report is
rejected, the commission shall resubmit the matter to the same wage board or to a new
wage board with a statement of reasons for resubmission.
23-322 Directory orders
A. If the report of a wage board is approved, the commission shall make and publish
a directory order which shall define minimum fair rates in the occupation or occupations
as recommended in the report of the wage board. The report shall include proposed
administrative regulations the commission deems appropriate to complete the report of the
wage board and to protect and maintain the minimum fair wage standards established. The
administrative regulations shall include, among other things, regulations defining and
governing learners and apprentices, their rates, number, piece rates or their relation to
time rates, overtime or part-time rates, bonuses or special pay for special or extra
work.
B. After a directory minimum fair wage order has been in effect for sixty days, and
no appeal has been taken, it shall become mandatory.
23-323 Posting of wage orders
Every employer subject to a minimum fair wage order, whether directory or mandatory,
shall keep a copy of the order posted in a conspicuous place where minors are
employed. Employers shall be furnished copies of orders on request without charge.
23-324 Reconsideration of minimum wages in effect over a year
At any time after a minimum fair wage order has been in effect for one year or more,
the commission may on its own motion, and shall, on petition of twenty or more residents
of the state engaged in any particular occupation, reconsider the minimum fair wage rates
set therein and reconvene the same wage board or appoint a new board to recommend whether
or not the wage rate or rates contained in the order should be revised. The report of the
wage board shall be dealt with in the manner prescribed in this article.
23-325 Judicial review of commission decisions; scope of review; appeal procedure; action of reviewing court
A. All questions of fact arising under this article, except as otherwise provided,
shall be decided by the commission, but there shall be the right of appeal from the
decision of the commission on any question of law or fact, and there shall be a right of
review by the superior court on any decision on a question of law or fact included or
embodied in a decision or order of the commission.
B. The review may be had by filing, within thirty days after the decision of the
commission, an action in the superior court of the county wherein the contract of
employment was entered. The commission shall be named defendant in the action. Summons
shall issue and be served as in civil actions. The county attorney of the county where
the action is filed shall represent the commission.
C. Within twenty days after the date of service of summons on the commission a
transcript of the evidence and testimony offered at the hearing shall be filed with the
clerk of the court, and the review shall be had upon the transcript offered and upon
other evidence. The review shall not stay the order of the commission until the order is
reversed, vacated or modified by the court.
D. Upon setting aside a decision of the commission, the court may recommit the
controversy and remand the record in the case for further proceedings.
E. Either party may appeal to the supreme court from the judgment in the time and
manner provided for appeals from superior courts in civil actions.
23-326 Special licenses to work for less than minimum wage
In an occupation for which minimum fair wage rates have been established, the
commission may issue to a minor, including a learner or apprentice, whose earning
capacity is impaired by age, physical or mental deficiency, or injury, a special license
authorizing employment at wages less than the minimum fair wage rates and for a period of
time fixed by the commission or the wage board which shall be stated in the license.
23-327 Action by employee for recovery of wages; amount of recovery
If a minor is paid less than the minimum fair wage to which such minor is entitled
under a mandatory minimum fair wage order, such minor may recover in a civil action an
amount which is treble the full amount of the minimum wage, together with costs and a
reasonable attorney's fee to be allowed by the court on the basis of time and effort
expended by counsel in behalf of the plaintiff-employee if judgment is rendered against
the employer, less any amount actually paid to the employee by the employer. Any
agreement between the employee and the employer to work for less than the mandatory
minimum fair wages is not a defense to the action.
23-328 Contract or agreement for employment of minor at oppressive wage void
It is contrary to public policy for an employer to employ a minor in an occupation
at an oppressive and unreasonable wage as defined by section 23-311, and any contract,
agreement or understanding for, or in relation to such employment, is void.
23-329 Violations; classification
A. An employer or his agent, or the officer or agent of a corporation, who
knowingly discharges, or in any other manner discriminates against an employee, because
the employee has served, or is about to serve, on a wage board, or has testified, or is
about to testify before a wage board, or in any other investigation or proceeding under
or related to this article, or because the employer believes that the employee may serve
on a wage board, or may testify before a wage board or in an investigation or proceeding
under this article, or who deducts any part of any wages or compensation, other than as
prescribed by law, when due a minor, is guilty of a petty offense.
B. An employer or his agent, or the officer or agent of a corporation, who
knowingly pays or agrees to pay to a minor employee less than the wage rates applicable
to the minor under a mandatory minimum fair wage order is guilty of a class 3
misdemeanor.
C. An employer or his agent, or the officer or agent of a corporation, who fails to
keep the records required by this article or to furnish the records to the commission or
an authorized representative of the commission upon request is guilty of a petty offense.
23-340 Definitions
In this article, unless the context otherwise requires:
1. "Commission" means the industrial commission of ARIZONA.
2. "Employee" means every woman or man in receipt of or entitled to compensation
for labor performed for any employer.
3. "Employer" means this state and any political subdivision of this state which
receives state tax monies and every person, firm, corporation, agent, manager,
representative, contractor, subcontractor, principal or other person having control or
direction of any woman or man employed at any labor, or responsible directly or
indirectly for the wages of another.
4. "Wage" or "wages" means any compensation for labor measured by time, piece, or
otherwise.
23-341 Equal wage rates; variations; penalties; enforcement
A. Notwithstanding the other provisions of this chapter, no employer shall pay any
person in his employ at wage rates less than the rates paid to employees of the opposite
sex in the same establishment for the same quantity and quality of the same
classification of work, provided, that nothing herein shall prohibit a variation of rates
of pay for male and female employees engaged in the same classification of work based
upon a difference in seniority, length of service, ability, skill, difference in duties
or services performed, whether regularly or occasionally, difference in the shift or time
of day worked, hours of work, or restrictions or prohibitions on lifting or moving
objects in excess of specified weight, or other reasonable differentiation, factor or
factors other than sex, when exercised in good faith.
B. Any employer who violates subsection A of this section is liable to the employee
affected in the amount of the wages of which such employee is deprived by reason of such
violation.
C. Any affected employee may register with the commission a complaint that the
wages paid to such employee are less than the wages to which such employee is entitled
under this section.
D. The commission shall take all proceedings necessary to enforce the payment of
any sums found to be due and unpaid to such employees.
E. Any employee receiving less than the wage to which such employee is entitled
under this section may recover in a civil action the balance of such wages, together with
the costs of suit, notwithstanding any agreement to work for a lesser wage.
F. Any action based upon or arising under this section shall be instituted within
six months after the date of the alleged violation, but in no event shall any employer be
liable for any pay due under this section for more than thirty days prior to receipt by
the employer of written notice of claim thereof from the employee.
G. The burden of proof shall be upon the person bringing the claim to establish
that the differentiation in rate of pay is based upon the factor of sex and not upon
other differences, factor or factors.
23-350 Definitions
In this article, unless the context otherwise requires:
1. "Department" means the labor department of the industrial commission of ARIZONA.
2. "Employee" means any person who performs services for an employer under a
contract of employment either made in this state or to be performed wholly or partly
within this state.
3. "Employer" means any individual, partnership, association, joint stock company,
trust, corporation, the administrator or executor of the estate of a deceased individual
or the receiver, trustee or successor of any of such persons employing any
person. Employer also includes this state and any county, municipality, school district
or other political subdivision of this state.
4. "Hours worked" includes all time an employee is employed.
5. "Wages" means nondiscretionary compensation due an employee in return for labor
or services rendered by an employee for which the employee has a reasonable expectation
to be paid whether determined by a time, task, piece, commission or other method of
calculation. Wages include sick pay, vacation pay, severance pay, commissions, bonuses
and other amounts promised when the employer has a policy or a practice of making such
payments.
23-351 Designation of paydays for employees; payment; exceptions; violation; classification
A. Each employer in this state shall designate two or more days in each month, not
more than sixteen days apart, as fixed paydays for payment of wages to the employees.
B. Notwithstanding the provisions of subsection A, each employer in this state
whose principal place of business is located outside the state of ARIZONA and whose
payroll system is centralized outside the state of ARIZONA may designate one or more days
in each month as fixed paydays for payment of wages to the following employees:
1. Professional, administrative or executive employees or employees employed in the
capacity of an outside salesman as those terms are defined under the fair labor standards
act of 1938, as amended.
2. Employees employed in a supervisory capacity as defined under the national labor
relations act.
C. Each employer shall, on each of the regular paydays, pay to the employees, in
lawful money of the United States, or in negotiable bank checks or, in the case of the
state or any political subdivision thereof, warrants payable on demand and bearing even
date with the payday or, with the written consent of the employee, by deposit on the
payday to the employee's credit at a financial institution of the employee's choice which
is a member of the federal deposit insurance corporation or of any other comparable
federal or state agency, all wages due the employees up to such date, except:
1. In the case of employees remaining in the service of any such employer, with the
exception of school district employees, all wages other than overtime or exception pay
not to exceed five days of labor may be withheld. School districts may withhold wages
during their normal two week payroll processing cycle. An employer other than a school
district may satisfy the requirements of this paragraph by any of the following:
(a) Personally delivering the wages to the employee no later than five days after
the end of the most recent pay period.
(b) Depositing the wages in the United States mail no later than five days after
the end of the most recent pay period for delivery to an address specified by the
employee.
(c) Personally delivering the wages to the employee no later than ten days after
the end of the most recent pay period for an employer whose payroll system is centralized
outside the state of ARIZONA.
2. In the case of employees of school districts or of the ARIZONA state school for
the deaf and the blind, the annual salary may be prorated in any number of payments, and
the employee may select whether to have the salary prorated or paid during the actual
months worked. If the employee's salary is prorated, all such payments still due at the
close of the school attendance year or fiscal year may at the option of the employee be
paid in either a lump sum or paid within a period of two months after the close of the
fiscal year.
3. Overtime or exception pay shall be paid no later than sixteen days after the end
of the most recent pay period.
D. When an employee's wages are paid by deposit in a financial institution he shall
be furnished with a statement of his earnings and withholdings. Any wage deposit plan
adopted by an employer shall entitle the employee to one withdrawal for each deposit,
free of any service charge to the employee. The consent of an employee for payment of
wage by deposit shall not constitute a prior assignment of wages to the financial
institution and is revocable at any time prior to the transmittal to the financial
institution by the employer. No person shall be denied employment nor discharged for
refusal to consent to payment of wage by deposit in a financial institution.
E. Subsection B shall not apply to employees whose salaries are subject to
provisions of collective bargaining agreements.
F. Any employer who violates a provision of this section is guilty of a petty
offense.
23-352 Withholding of wages
No employer may withhold or divert any portion of an employee's wages unless one of
the following applies:
1. The employer is required or empowered to do so by state or federal law.
2. The employer has prior written authorization from the employee.
3. There is a reasonable good faith dispute as to the amount of wages due,
including the amount of any counterclaim or any claim of debt, reimbursement, recoupment
or set-off asserted by the employer against the employee.
23-353 Payment of wages of discharged employee; violation; classification
A. When an employee is discharged from the service of an employer, he shall be paid
wages due him within three working days or the end of the next regular pay period,
whichever is sooner.
B. When an employee quits the service of an employer he shall be paid in the usual
manner all wages due him no later than the regular payday for the pay period during which
the termination occurred. If requested by the employee, such wages shall be paid by
mail.
C. Every employer, including the state and its political subdivisions, shall pay
wages or compensation due an employee under this section in lawful money of the United
States by negotiable check, draft, money order or warrant, in the case of the state or
any political subdivision, which can be immediately redeemed in cash at a bank or other
financial institution, payable on demand or by deposit in a financial institution of
employee's choice and dated not later than the day upon which the check, draft, money
order or warrant is given, and not otherwise.
D. A person violating this section is guilty of a petty offense.
23-354 Preference of wages in insolvency proceedings or upon death of employer
A. In assignments of property for benefit of creditors or in proceedings in
insolvency, the wages of salesmen, clerks or laborers employed by the debtor or
insolvent, to the amount of two hundred dollars each for services rendered within sixty
days previous to such assignment or insolvency proceedings, are preferred claims and
shall be paid by the trustee, receiver, or assignee before any other creditor is paid.
B. Upon the death of an employer, such wages of such employees rank in priority
next after the funeral expenses, expenses of the last sickness, the charges and expenses
of administering upon the estate and the allowance to the surviving spouse and infant
children, and shall be paid before any other claims against the estate of the deceased
person.
23-355 Action by employee to recover wages; amount of recovery
If an employer, in violation of the provisions of this chapter, shall fail to pay
wages due any employee, such employee may recover in a civil action against an employer
or former employer an amount which is treble the amount of the unpaid wages.
23-356 Wage claims
A. Instead of proceeding under section 23-355, an employee may file a written claim
with the department for unpaid wages against an employer if the amount of such wages does
not exceed two thousand five hundred dollars and if such claim is filed within one year
of the accrual of such claim.
B. The department may, on behalf of an employee, or the employee may obtain
judgment and execution, garnishment, attachment or other available remedies for
collection of unpaid wages established by final determination by the department.
C. The department may receive payment on wage claims on behalf of employees. The
department may deposit, pursuant to sections 35-146 and 35-147, monies it receives as
payment on wage claims in a special state fund for disbursement to wage claimants on
proper authorization by the department.
23-357 Investigation of wage claims
A. The department shall investigate wage claims timely filed under section 23-356
to determine if wages are due or if a dispute exists between the parties to the claim.
B. Upon completion of its investigation, the department shall notify the parties to
the claim of its findings in writing, which may include a finding that a dispute exists
which cannot be resolved by the department's investigation. If it is determined that the
claim for unpaid wages is valid, the department shall direct that the unpaid wages be
paid by the party responsible for their payment.
23-358 Review of department determination
A. A party aggrieved by a determination under section 23-357 may seek review
pursuant to title 12, chapter 7, article 6.
B. If the department's determination finds that there is a dispute which cannot be
resolved by investigation, the employee may attempt to recover the amount of wages
claimed to be due by instituting a civil action pursuant to section 23-355.
23-359 Effect of department determination
Unless review is sought pursuant to section 23-358, the department's determination
shall be final upon the expiration of the time for seeking review. A final determination
by the department shall be in writing and signed by the director. The final
determination may be filed, recorded and executed upon in the same manner as provided by
law for judgments and shall draw interest at the same rate as a judgment from the date of
final determination. A final determination of the department which determines or
purports to determine the validity or amount of any counterclaim or any claim of debt,
reimbursement, recoupment or set-off by the employer shall be binding and conclusive only
as to the amount of wages to be paid the employee, if any, and shall not in any way
preclude the employer from raising and litigating such counterclaim or claim in a civil
action.
23-360 Penalty
An employer who has been ordered by the department pursuant to section 23-357 or a
court to pay wages due an employee and who fails to do so within ten days after the order
becomes final is liable to pay the employee an amount which is equal to treble the amount
of the unpaid wages and which shall be subject to interest at the legal rate.
23-361 Rules and regulations
The commission may adopt such rules and regulations as necessary for the purpose of
administering and enforcing this article.
23-362 Minimum wage; prohibition
A. The legislature declares that the establishment of a uniform minimum wage is a
matter of statewide concern.
B. No political subdivision of this state may establish, mandate or otherwise
require a minimum wage that exceeds the federal minimum wage prescribed in 29 United
States Code section 206.
23-391 Overtime pay; work week
A. Subject to availability of appropriated funds, an employee of the state or any
political subdivision, serving in a position determined by the law enforcement merit
system council, the director of the department of administration, the ARIZONA board of
regents, the board of directors for the ARIZONA state schools for the deaf and the blind
or the governing body of a political subdivision, in the discretion of such board or
body, to be eligible for overtime compensation who is required to work in excess of such
person's normal work week, shall be compensated for such excess time at the following
rates:
1. One and one-half times the regular rate at which such person is employed or one
and one-half hours of compensatory time off for each hour worked if overtime compensation
is mandated by federal law.
2. If federal law does not mandate overtime compensation, the person shall receive
the regular rate of pay or compensatory leave on an hour for hour basis at the discretion
of the board or governing body.
B. Notwithstanding subsection A, the state or a political subdivision may provide,
by action of the law enforcement merit system council, the board of regents, the board of
directors for the ARIZONA state schools for the deaf and the blind or the director of the
department of administration in the case of the state or of the governing body of the
political subdivision, for a work week of forty hours in less than five days for certain
classes of employees employed by the state or the political subdivision.
23-392 Overtime compensation for certain law enforcement or probation officer activities; option; definitions
A. Any person engaged in law enforcement activities shall be compensated for each
hour worked in excess of forty hours in one work week at the option of such employer at
the following rates:
1. One and one-half times the regular rate at which such person is employed or one
and one-half hours of compensatory time off for each hour worked if by the person's job
classification overtime compensation is mandated by federal law.
2. If by the person's job classification federal law does not mandate overtime
compensation, the person shall receive the regular rate of pay or compensatory leave on
an hour for hour basis.
B. Any person engaged in probation officer activities shall be compensated for each
hour worked in excess of eighty hours in a two week work period at the option of such
employer at the following rates:
1. One and one-half times the regular rate at which such person is employed or one
and one-half hours of compensatory time off for each hour worked if by the person's job
classification overtime compensation is mandated by federal law.
2. If by the person's job classification federal law does not mandate overtime
compensation, the person shall receive the regular rate of pay or compensatory leave on
an hour for hour basis.
C. Paid leave may be considered hours worked for the purpose of calculating
overtime.
D. The director of the department of public safety may establish alternate work
periods, in accordance with federal law, for the purpose of determining overtime
compensation for those employees of the air rescue section of the department of public
safety.
E. Notwithstanding subsection C of this section, an alternate work period
established by the director of the department of public safety for the purpose of
determining overtime compensation shall not exceed twenty-eight days or one hundred sixty
hours.
F. For the purposes of this section:
1. "Person engaged in law enforcement activities":
(a) Means:
(i) A law enforcement officer as defined by section 38-1001.
(ii) A peace officer as defined by section 41-1701.
(iii) Any security personnel responsible for controlling or maintaining custody of
inmates in correctional institutions maintained by this state or a county, city or town.
(b) Does not include any such person employed in a bona fide executive or
administrative capacity as defined by the employer.
2. "Probation officer" includes a probation officer or surveillance officer who is
employed by this state or a political subdivision of this state. 23-401 Definitions
In this article, unless the context otherwise requires:
1. "Board" means a review board established pursuant to section 23-422.
2. "Commission" means the industrial commission of ARIZONA.
3. "De minimis violation" means a condition or practice which, although
undesirable, has no direct or immediate relationship to safety or health.
4. "Director" means the director of the division.
5. "Division" means the division of occupational safety and health within the
commission.
6. "Employee" means any person performing services for an employer, including any
person defined as an employee pursuant to section 23-901, except employees engaged in
household domestic labor.
7. "Employer" means any individual or type of organization, including the state and
all its political subdivisions, which has in its employ one or more individuals
performing services for it in employment and includes self-employed persons, but does not
include employers of household domestic labor.
8. "Interested party" means the commission and its agents, the employer and the
affected employees of such employer.
9. "Non-serious violation" means a condition or practice in a place of employment
which does not constitute a serious violation but which violates a standard or regulation
and has a direct or immediate relationship to safety or health, unless the employer did
not, and could not with the exercise of reasonable diligence, know of the presence of
such condition or practice.
10. "Recognized hazard" means an unsafe or unhealthful condition or practice
recognized as such with respect to the standard of knowledge in the industry.
11. "Regulation" means any written regulation of occupational safety and health
governing places of employment formulated pursuant to section 23-410, exclusive of
standards, and shall have the same meaning as and include the term "rule".
12. "Serious violation" means a condition or practice in a place of employment which
violates a standard, regulation or section 23-403, subsection A and produces a
substantial probability that death or serious physical harm could result, unless the
employer did not, and could not with the exercise of reasonable diligence, know of the
presence of such condition or practice.
13. "Standard" means any occupational safety and health standard which has been
adopted and promulgated by a nationally recognized standards-producing organization or
the federal government and shall have the same meaning as, and include the term "code".
14. "Trade secret" means a plan or process, tool, mechanism, or compound not
patented, known only to its owner and those of his employees to whom it is necessary to
confide it.
15. "Workplace" means a location or site wherein work, either temporary or
permanent, is being conducted in connection with an industry, trade or business. 23-402 Applicability
Nothing in this article shall apply to working conditions of employees with respect
to which any state agency acting under section 274(b) of the atomic energy act of 1954,
as amended, or under title 27, chapter 3, ARIZONA Revised Statutes, exercises statutory
authority to prescribe or enforce standards or regulations affecting occupational safety
or health.
23-403 Employer's duty
A. Each employer shall furnish to each of his employees employment and a place of
employment which are free from recognized hazards that are causing or are likely to cause
death or serious physical harm to his employees.
B. Each employer shall comply with occupational safety and health standards and all
regulations and orders issued pursuant to this article.
C. Notwithstanding subsection A of this section, a condition or practice which is
common within an industry is not deemed a recognized hazard unless a standard or
regulation concerning the condition or practice has been developed pursuant to section
23-410 or 23-414.
23-404 Employee's duty
Each employee shall comply with occupational safety and health standards and all
rules, regulations and orders issued pursuant to this article which are applicable to his
own actions and conduct.
23-405 Duties and powers of the industrial commission relative to occupational safety and health
The commission shall:
1. Administer the provisions of this article through the division of occupational
safety and health.
2. Appoint the director of the division of occupational safety and health.
3. Cooperate with the federal government to establish and maintain an occupational
safety and health program as effective as the federal occupational safety and health
program.
4. Promulgate standards and regulations as required, pursuant to section 23-410,
and promulgate such other rules and regulations as are necessary for the efficient
functioning of the division.
5. Have the authority to issue reasonable temporary, experimental and permanent
variances pursuant to sections 23-411 and 23-412.
6. Exercise such other powers as are necessary to carry out the duties and
requirements of this article.
23-406 Division of occupational safety and health; director; appointment; qualifications; compensation
A. There shall be a division of occupational safety and health within the
industrial commission.
B. The director of the division of occupational safety and health shall be the
administrative head of the division under the control of the commission. The director
shall be appointed by the commission and shall be subject to the rules and regulations of
the personnel commission, pursuant to title 41, chapter 4, article 5.
C. The director shall be:
1. A person who has been employed in the safety or health profession a minimum of
ten years in the aggregate and is currently engaged in the broad practice of safety or
health or one of its relevant specialties or holds a degree from an accredited college or
university appropriate to the field of safety and health and has a minimum of five years'
experience in the broad practice of safety or one of its relevant specialties, and has
been registered or licensed by a state agency as a professional appropriate to his field
of safety and health or has been certified as competent within the broad practice of
safety or health or one of its relevant specialties by an organization recognized as
qualified by the American society of safety engineers or American industrial hygiene
association.
2. Competent to deal with the planning, design and needs of business operations as
the use of such operations relate to the safe, convenient and economic performance of
their business functions, with not less than three years' experience in an administrative
capacity in the field of occupational safety and health.
D. The salary of the director shall be determined pursuant to section 38-611.
23-407 Duties and powers of the division
The division on behalf of the commission shall:
1. Recommend all standards, rules or changes thereto, pursuant to section 23-410,
to the commission for its approval or disapproval.
2. Have the authority to enforce all such standards or rules, after their adoption
by the commission, pursuant to the procedures and requirements of this article.
3. Implement an occupational safety and health program, which shall include, but
not be limited to, the following duties and responsibilities:
(a) Development of a statewide occupational safety and health education and
training program to acquaint employers, supervisors, employees and employee
representatives with the most modern and effective techniques of accident prevention and
occupational health control.
(b) Development of training programs for employees of the division, and where
necessary develop certification programs for recognition of competent, trained personnel.
(c) Planning, organizing, conducting or attending occupational safety and health
seminars, conferences and meetings designed for management, supervisory personnel,
employees and employer representatives and establishing liaison with other safety and
health groups as may be necessary.
(d) Definition and establishment of necessary research projects.
(e) Arrangement and procurement of necessary contractual services and training
aids.
(f) Development of specific occupational safety and health programs for employer
and employee representative groups.
4. Develop and maintain an effective program of collection, compilation and
analysis of occupational safety and health statistics. The division shall compile
statistics on work injuries and illnesses which shall include all disabling, serious or
significant injuries and illnesses whether or not involving loss of time from work, other
than minor injuries requiring only first aid treatment and which do not involve medical
treatment, loss of consciousness, restriction of work or motion or transfer to another
job.
5. Coordinate the responsibilities and functions of other state agencies and
political subdivisions of the state with regard to occupational safety and health in
order to develop a comprehensive statewide program.
23-408 Inspection of places and practices of employment; employee initiation of investigation; violation; classification; injunction
A. The director of the division of occupational safety and health, or his
authorized representative, upon presentation of credentials, shall be permitted to
inspect places of employment, question employees, and investigate conditions, practices
or matters in connection with employment subject to this article at reasonable times, as
he may deem appropriate to determine whether any person has violated any provision of
this article, or any rule or regulation issued thereunder or which may aid in the
enforcement of the provisions of this article. No employer or other person shall refuse
to admit the director or his authorized representatives to any such place or refuse to
permit any such inspection if the proper credentials are presented and the inspection is
made at a reasonable time.
B. The director or his authorized representative shall inspect at least every six
months any operation which mixes rock, sand, gravel or similar materials with water and
cement or with asphalt and which is not included in the definition of mine in section
27-301. The director or his representative shall monitor and work with the mine
inspector only to the extent necessary to ensure the state's compliance with federal
occupational safety and health act standards, (P.L. 91-596).
C. Notice of an intended inspection shall not be given to an employer prior to the
time of actual entry upon the workplace, except by specific authorization by the
director.
D. A representative of the employer and a representative authorized by his
employees shall be given an opportunity to accompany the director or his authorized
representative during the physical inspection of any workplace for the purpose of aiding
such inspection. Where there is no authorized employee representative, the director or
his authorized representative shall consult a reasonable number of employees concerning
matters of safety and health in the workplace.
E. Except as provided in section 23-426, information and facts developed by the
commission, the director or any employee of the commission or division in the course of
any inspection or investigation are public records subject to inspection pursuant to
title 39, chapter 1, article 2, if, pursuant to section 23-415, subsection D, the
inspection or investigation has been closed or a citation has been issued. Such
information and facts shall not be admissible in any court or before any administrative
body except pursuant to the provisions of this article. Notwithstanding the provisions of
this subsection, the director or any commission employee is not required to appear at any
deposition, trial or hearing concerning a division inspection or investigation unless the
appearance is related to a hearing held pursuant to this article. Hearings held pursuant
to this article are open to the public.
F. An employee or a representative of employees who believes that a violation of a
safety or health standard or regulation exists that threatens physical harm or that an
imminent danger exists may request an investigation by giving notice to the director or
his authorized representative of such violation or danger. Any such notice shall be
reduced to writing, shall set forth with reasonable particularity the grounds for the
notice and shall be signed by the employees or representative of the employees. Upon the
request of the employee giving such notice, his name and the names of other employees
referred to therein shall not appear on any copy of such notice or any record published,
released or made available. If upon receipt of such notification the director determines
that there are reasonable grounds to believe that such violation or danger exists, he
shall make an investigation in accordance with the provisions of this article as soon as
practicable to determine if such violation or danger exists. If the director determines
there are no reasonable grounds to believe that a violation or danger exists, he shall
notify the employees or representative of the employees in writing of such a
determination.
G. Any person who violates any provision of this section is guilty of a class 2
misdemeanor.
H. The commission, or its authorized representative, in addition to initiating an
action under subsection F, may file in the superior court in the county where the
inspection was refused a verified complaint against an employer who violates subsection A
and request an injunction against continued refusal to permit an inspection.
23-409 Advisory committees
A. The commission shall create an occupational safety and health advisory committee
to assist the commission in drafting standards and regulations. The committee shall also
recommend names to be considered by the governor as members of the review board,
established pursuant to section 23-422, and the committee may be asked to perform other
functions as may be necessary. Such committee shall be appointed by the commission and
shall be composed of a reasonably balanced representation of regulated industries,
including agriculture, and labor and other persons knowledgeable in safety and health and
shall serve at the will of the commission. The commission may establish other committees
as it deems necessary. Such advisory committees may be paid their reasonable and
necessary travel and other expenses in accordance with standard travel regulations.
B. The director shall be an ex officio member of any advisory committee established
pursuant to this section.
23-410 Development of standards and rules
A. Safety and health standards and rules shall be formulated in the following
manner:
1. The division shall either propose adoption of national consensus standards or
federal standards or draft such rules as it considers necessary after conducting
sufficient investigations through the division's employees and through consultation with
the occupational safety and health advisory committee and other persons knowledgeable in
the business for which the standards or rules are being formulated.
2. Proposed standards or rules, or both, shall be submitted to the commission for
its approval. If the commission approves the proposed standards or rules, or both, it
shall promulgate them in accordance with the procedures established in title 41, chapter
6.
B. The division shall not propose standards or rules for products distributed or
used in interstate commerce which are different from federal standards for such products
unless such standards are required by compelling local conditions and do not unduly
burden interstate commerce.
C. Any standards or rules promulgated under this section shall prescribe the use of
labels or other appropriate forms of warning as are necessary to insure that employees
are apprised of all recognized hazards to which they are exposed, relevant symptoms and
appropriate emergency treatment and proper conditions and precautions of safe use or
exposure. Where appropriate such standards or rules shall also prescribe suitable
protective equipment and control or technological procedures to be used in connection
with such hazards and shall provide for monitoring or measuring employee exposure at such
locations and intervals and in such manner as may be necessary for the protection of
employees. In addition, where appropriate, any such standards or rules shall prescribe
the type and frequency of medical examinations or other tests which shall be made
available, by the employer or at his cost, to employees exposed to such hazards in order
to most effectively determine whether the health of such employees is adversely affected
by such exposure. Any standards or rules promulgated pursuant to this section shall
assure, as far as possible, that no employee will suffer material impairment of health or
functional capacity even if such employee has regular exposure to the hazard dealt with
by such standard for the period of his working life.
D. In case of conflict between standards and rules, the rules shall take
precedence.
E. Any person who may be adversely affected by a standard or rule issued under this
article may at any time prior to the sixtieth day after such standard or rule is
promulgated file a complaint challenging the validity of such standard or rule with the
superior court in the county in which the person resides or has his principal place of
business, for a judicial review of such standard or rule. The filing of such a complaint
shall not, unless otherwise ordered by the court, operate as a stay of the standard or
rule. The determinations of the commission shall be conclusive if supported by
substantial evidence in the record considered as a whole.
23-411 Temporary and experimental variances
A. Any employer may apply to the commission for a temporary order granting a
variance from a standard or regulation or any provision thereof promulgated under this
article.
B. Such temporary order shall be granted only if the employer files an application
which meets the requirements of subsection C of this section and establishes all of the
following:
1. He is unable to comply with a standard or regulation by its effective date
because of unavailability of professional or technical personnel or of materials and
equipment needed to come into compliance with the standard or regulation or because
necessary construction or alteration of facilities cannot be completed by the effective
date.
2. He is taking all available steps to safeguard his employees against the hazards
covered by the standard or regulation.
3. He has an effective program for coming into compliance with the standard or
regulation as quickly as practicable. Any temporary order issued under this section shall
prescribe the practices, means, methods, operations and processes which the employer must
adopt and use while the order is in effect and state in detail his program for coming
into compliance with the standard or regulation. Such a temporary order may be granted
only after notice to employees and an opportunity for a hearing before the commission. A
hearing must be requested within twenty days of such notice to employees. The commission
may issue one interim order to be effective until a decision is made on the basis of the
hearing. No temporary order may be in effect for longer than the period needed by the
employer to achieve compliance with the standard or regulation or six months, whichever
is shorter, except that such an order may be renewed not more than once so long as the
requirements of this section are met and if an application for renewal is filed at least
sixty days prior to the expiration date of the order. No interim renewal of an order may
remain in effect for longer than one hundred eighty days.
C. An application for a temporary order under this section shall contain all of the
following:
1. A specification of the standard or regulation or portion thereof from which the
employer seeks a variance.
2. A representation by the employer, supported by representations from qualified
persons having firsthand knowledge of the facts represented, that he is unable to comply
with the standard or regulation or portion thereof and a detailed statement of the
reasons therefor.
3. A statement of the steps he has taken and will take with specific dates to
protect employees against the hazard covered by the standard or regulation.
4. A statement of when he expects to be able to comply with the standard or
regulation and what steps he has taken and what steps he will take with dates specified
to come into compliance with the standard or regulation.
5. A certification that he has informed his employees of the application by giving
a copy thereof to their authorized representative, posting a statement giving a summary
of the application and specifying where a copy may be examined at the place or places
where notices to employees are normally posted and by other appropriate means. A
description of how employees have been informed shall be contained in the
certification. The information to employees shall also inform them of their right to
petition the commission for a hearing.
D. The commission is authorized to grant an experimental variance from any standard
or regulation or portion thereof whenever it determines that such variance is necessary
to permit an employer to participate in an experiment approved by the commission and
designed to demonstrate or validate new and improved techniques to safeguard the safety
or health of workers. An employer applying for an experimental variance must comply with
the requirements of subsection C, paragraphs 1, 3 and 5 of this section.
23-412 Permanent variances
Any affected employer may apply to the commission for a rule or order for a variance
from a standard or regulation promulgated under this article. Affected employees shall
be given notice of each such application and an opportunity to participate in a
hearing. The commission shall issue such rule or order if it determines on the record,
after opportunity for an inspection where appropriate and a hearing before the commission
that the proponent of the variance has demonstrated by a preponderance of the evidence
that the conditions, practices, means, methods, operations or processes used or proposed
to be used by an employer will provide employment and places of employment to his
employees which are as safe and healthful as those which would prevail if he complied
with the standard or regulation. The rule or order so issued shall prescribe the
conditions the employer must maintain, the practices, means, methods, operations and
processes which he must adopt and utilize to the extent they differ from the standard or
regulation in question. Such a rule or order may be modified or revoked upon application
by an employer, employees or by the commission on its own motion, in the manner
prescribed for its issuance under this section at any time after six months from its
issuance.
23-413 Protest of validity of order
Any interested party adversely affected by a rule or order issued under sections
23-411 or 23-412 may appeal in accordance with the procedures established in sections
23-945 and 23-946.
23-414 Emergency temporary standards
A. The commission may provide for emergency temporary standards or regulations to
take immediate effect upon filing with the secretary of state, if it determines that
employees are exposed to grave danger from exposure to substances or agents determined to
be toxic or physically harmful or from new hazards and that such emergency standard or
regulation is necessary to protect employees from such danger.
B. Such emergency temporary standards or regulations shall be effective until
superseded by standards or regulations promulgated in accordance with the procedures
prescribed in section 23-410.
C. Upon filing such a standard or regulation with the secretary of state the
commission shall commence a proceeding in accordance with section 23-410 and the
emergency temporary standard or regulation shall serve as a proposed standard or
regulation for the proceeding. The commission shall promulgate a standard or regulation
under this subsection no later than six months after filing of the emergency temporary
standard or regulation.
23-415 Citations
A. If the director, following an inspection or investigation determines that there
is reasonable cause to believe that violation exists he shall with reasonable promptness
issue a citation to the employer. Each citation shall be in writing and shall contain
the following:
1. A particular description of the nature of the violation, including a reference
to the provision of this article, or of any standard or regulation alleged to have been
violated.
2. A reasonable time for the abatement of the violation.
3. A notice that the employer may request a hearing pursuant to section 23-420 if
he is aggrieved by the citation.
B. A certified mail delivery receipt or a signed verification of delivery in person
shall be prima facie evidence of receipt of a citation.
C. Each citation issued under this section or a copy or copies thereof shall be
prominently posted at or near each place a violation referred to in the citation existed.
D. No citation may be issued after the expiration of a period of six months from
the date of the inspection or investigation which produced evidence of the violation.
23-416 De minimis violations
The division may issue an advisory notice setting forth de minimis violations of
standards and regulations which shall carry no penalty, unless the employer wilfully and
repeatedly violates such standard or regulation, in which case the division may refer the
matter to the commission for appropriate action pursuant to section 23-418.
23-417 Enforcement procedure
A. If the director, following an inspection or investigation, issues a citation
pursuant to section 23-415 he shall, within a reasonable time after termination of the
inspection or investigation, notify the employer by mail of any penalty proposed to be
assessed pursuant to section 23-418 and that the employer has fifteen working days within
which to notify the director in writing if he wishes to contest the citation or proposed
assessment of penalty. If the employer fails to notify the director in writing within
fifteen working days of receipt of the notice that he intends to contest the citation or
penalty and no notice is filed by any employee or representative of employees pursuant to
subsection D of this section within such time, the citation and the assessment, as
proposed, shall be a final order of the commission and not subject to review by any court
or agency.
B. The period permitted for correction of a violation shall not begin to run until
the entry of a final order in the case of any review proceedings pursuant to this section
initiated by the employer in good faith and not solely for delay or avoidance of
penalties. If the division has reason to believe an employer has failed to correct a
violation for which a citation has been issued within the period permitted, the director
shall notify the employer by mail of such failure, of the penalty proposed to be assessed
pursuant to section 23-418 and that the employer has fifteen working days within which to
notify the director in writing if he wishes to contest the notification or proposed
assessment of penalty. If the employer fails to notify the director in writing within
fifteen working days of receipt of the notice that he intends to contest the notice or
penalty, the notice and assessment, as proposed, shall be deemed a final order of the
commission and not subject to review by any court or agency.
C. Any employer who corrects the violations for which a citation was issued within
the period permitted shall so notify the director in writing.
D. Any affected employee or employee representative may request a hearing to appeal
the period allowed an employer to abate a particular violation pursuant to section 23-420
if he files such appeal with the director within the abatement period allowed in the
citation or within fifteen days from the date of receipt of the citation, whichever is
shorter.
E. Upon a showing by an employer of a good faith effort to comply with the
abatement requirements of a citation, and that abatement has not been completed because
of factors beyond the reasonable control of the employer, the commission or its
authorized designee, after an opportunity for a hearing as provided in section 23-420,
shall issue an order affirming or modifying the abatement requirements in such
citation. The rules of procedure prescribed by the commission shall provide affected
employees or representatives of affected employees an opportunity to participate as
parties to hearings under this subsection.
23-418.01 Additional penalty for wilful or repeated violation causing employee permanent disability or death covered by workers' compensation; payment to employee; enforcement
A. An additional penalty of twenty-five thousand dollars shall be assessed by the
commission against an employer who is assessed a penalty under section 23-418, subsection
A, for each employee injury resulting in permanent disability or death if the commission
finds all of the following:
1. The employee injury resulting in permanent disability or death was caused by the
violation for which the employer is assessed a penalty under section 23-418, subsection
A.
2. Compensation benefits are paid to the injured employee, or in the event of
death, his dependents, under chapter 6 of this title.
3. The violation for which the employer is assessed a penalty under section 23-418,
subsection A, did not result from the injured or deceased employee's disobedience to
specific instructions given to the employee regarding the job condition causing his
injury or death or relating to the safety standards applicable to that job condition.
B. Each additional penalty assessed under subsection A of this section shall be
paid to the injured employee, or in the event of death, his dependents, in addition to
the benefits paid under chapter 6 of this title.
C. If an employer requests a hearing on an additional penalty assessed under this
section, the commission may either hear the issues raised pursuant to the hearing
procedures under this article or may refer the matter to an administrative law judge
assigned to hear matters relating to the workers' compensation claim under chapter 6 of
this title. If the hearing procedures are under this article, the procedures for further
review or appeal shall be in accordance with this article. If the hearing procedures are
under chapter 6 of this title, the procedures for further review or appeal shall be in
accordance with chapter 6, article 3 of this title. An additional penalty under this
section that becomes final shall operate as a judgment against the employer and may be
enforced by either the commission or the injured employee, or in the case of death, his
dependents, and all lawful remedies for the collection of judgments, including
provisional remedies, shall be available. This section does not create any right of
action or recovery against the employer's workers' compensation insurance carrier, and
the additional penalty provided by this section is not a compensation benefit under
chapter 6 of this title and is not subject to the payment of attorney fees.
23-418 Penalties; violation; classification
A. Any employer who wilfully or repeatedly violates the requirements of section
23-403 or any standard or regulation adopted pursuant to section 23-410 or 23-414 or any
provision of this article may be assessed a civil penalty of not more than seventy
thousand dollars for each violation, but not less than five thousand dollars for each
wilful violation.
B. Any employer who has received a citation for a serious violation of any
provision of this article shall be assessed a civil penalty of up to seven thousand
dollars for each such violation.
C. Any employer who has received a citation for a non-serious violation of any
provision of this article may be assessed a civil penalty of up to seven thousand dollars
for each such violation.
D. Any employer who fails to correct a violation for which a citation has been
issued within the abatement period permitted for its correction, which period shall be
suspended in case of a review proceeding before an administrative law judge or the review
board initiated by the employer in good faith and not solely for delay or avoidance of
penalties, may be assessed a civil penalty of not more than seven thousand dollars for
each day during which such failure or violation continues after the abatement date.
E. Any employer who knowingly violates the requirements of section 23-403 or any
standard or regulation adopted pursuant to section 23-410 or 23-414 or any provision of
this article and that violation causes death to an employee is guilty of a class 6
felony, except that if the conviction is for a second or subsequent violation the
employer is guilty of a class 5 felony.
F. Any person who knowingly gives advance notice of any inspection to be conducted
under this article without authority from the director is guilty of a class 2
misdemeanor.
G. Whoever knowingly makes any false statement, representation or certification in
any application, record, report, plan or other document filed or required to be
maintained pursuant to this article is guilty of a class 2 misdemeanor.
H. Any employer who violates any of the posting requirements of this article shall
be assessed a civil penalty of up to seven thousand dollars for each violation.
I. The commission shall have authority to assess all civil penalties provided in
this section, giving due consideration to the appropriateness of the penalty with respect
to the gravity of the violation, the number of employees employed by the employer, the
good faith of the employer and the history of previous violations under this article.
J. Civil penalties owed under this article shall be paid to the commission for
deposit in the state general fund. After an order or decision on a civil penalty becomes
final pursuant to section 23-417, 23-421 or 23-423, the civil penalty shall act as a
judgment against the employer. The commission shall file the civil penalty in the office
of the clerk of the superior court in any county in this state and the clerk shall enter
the civil penalty in the civil order book and judgment docket. When the civil penalty is
filed and entered it is a lien for eight years from the date of the final order or
decision on the property of the employer located in the county. Execution may issue on
the civil penalty within eight years in the same manner and with like effect as a
judgment of the superior court. The civil penalty judgment shall accrue interest
pursuant to section 44-1201. The commission may recover reasonable attorney fees
incurred pursuant to this section.
23-419 Imminent dangers
A. The superior court has jurisdiction upon filing of a verified complaint by the
commission to restrain any conditions or practices in any place of employment which are
such that a danger exists which could reasonably be expected to cause death or serious
physical harm immediately or before the imminence of such danger can be eliminated
through the enforcement procedures otherwise provided by this article. Any order issued
under this section may require such steps to be taken as may be necessary to avoid,
correct or remove such imminent danger and prohibit the employment or presence of any
individual in locations or under conditions where such imminent danger exists, except
individuals whose presence is necessary to avoid, correct or remove such imminent danger
or to maintain the capacity of a continuous process operation to resume normal operations
or where a cessation of operations is necessary, to permit such to be accomplished in a
safe and orderly manner.
B. Upon the filing of any such complaint the superior court has jurisdiction to
grant such injunctive relief or temporary restraining order pending the outcome of an
enforcement proceeding pursuant to this article. The proceeding shall be as provided by
the rules of civil procedure.
C. Whenever, and as soon as the commission or its authorized representative
concludes that conditions or practices described in subsection A exist in any place of
employment, it shall inform the affected employees and employers of the danger and that
it is recommending that relief be sought.
D. If the commission or its authorized representative arbitrarily or capriciously
fails to seek relief under this section, any employee who may be injured by reason of
such failure or the representative of such employees may bring an action against the
commission in superior court for a writ of mandamus to compel the commission to seek such
an order and for such further relief as may be appropriate.
23-420 Hearing rights and procedures
A. Subject to the provisions of section 23-417 an interested party may request a
hearing.
B. A request for hearing shall be made in writing, signed by or on behalf of the
interested party and including his address, stating that a hearing is desired, and mailed
to the commission. The request shall also state with particularity the violation,
abatement period or penalty which is being protested. Any violation, abatement period or
penalty not protested within the time limit specified on the citation or penalty notice
will be deemed admitted.
C. The commission shall refer the request for hearing to the administrative law
judge division for determination as expeditiously as possible. The administrative law
judge assigned to hear a case arising out of this article shall either be a member of the
administrative law judge division of the commission established pursuant to section
23-108.02 or an attorney appointed by the commission to hear specifically matters arising
under this article.
D. At least five days prior to any hearing, notice of the time and place of such
hearing shall be given to all parties in interest by mail at their last known
address. The hearing shall be held in the county where the violation has occurred or
such other place as selected by the administrative law judge.
E. A record of all proceedings at the hearing shall be kept but need not be
transcribed unless a party requests a review of the decision of the administrative law
judge.
F. Except as otherwise provided in this section and by rules of procedure
promulgated by the commission pursuant to section 23-405, paragraph 5, the administrative
law judge is not bound by common law or statutory rules of evidence or by technical or
formal rules of procedure and shall conduct the hearing in any manner that will achieve
substantial justice.
G. An interested party shall be entitled to the issuance of subpoenas for the
attendance of witnesses, parties and the production of reports, papers, contracts, books,
accounts, documents and testimony which are relevant and material to the issue. The
commission shall issue such subpoenas. The commission may initiate contempt proceedings
against any person who refuses to comply with a duly issued subpoena, upon application to
the superior court. Any person held in contempt may be punished by a fine of not to
exceed one thousand dollars.
23-421 Decisions of the administrative law judge
A. Upon the conclusion of any hearing, or prior thereto with concurrence of the
parties, the administrative law judge shall promptly and not later than thirty days after
the matter is submitted for decision decide the matter in accordance with his
determination. He may affirm, reverse or modify the disputed action and any penalty.
B. The decision shall be filed with the commission. A copy of the decision shall
be sent immediately by mail to all parties in interest.
C. The decision is final unless within fifteen days after the date on which a copy
of the decision is mailed to the parties one of the parties requests a review under
section 23-423. The request for review shall be filed within fifteen days from the date
of mailing of the decision. For the purposes of this section, filed means deposited in
the United States mail, postage prepaid or actually received at an office of the
industrial commission. The decision shall contain a statement explaining these rights
and the rights of the parties under section 23-423.
23-422 Review board
A. A review board shall be established to hear and rule on appeals of
administrative law judge decisions generated in this article. The board shall consist of
five members appointed by the governor. The occupational safety and health advisory
committee shall submit to the governor a list of names of persons to be considered for
appointment to the board who by reason of training, education or experience are qualified
to carry out the powers and duties of the board. One member shall be a representative of
management, one member shall be a representative of labor and three members shall be
representatives of the general public. The board shall elect a chairman from its
membership.
B. Members of the review board shall be appointed to five-year terms, except that
of the members first appointed, one each shall serve for a term of one, two, three, four
and five years. A vacancy occurring on the board other than by expiration of a term
shall be filled in the manner original appointments were made, for the unexpired portion
of the term. Members of the board may be removed by the governor for inefficiency,
neglect of duty, malfeasance or nonfeasance in office. The review board shall meet as
often as necessary to hold review hearings as provided in section 23-423, at such times
and places as the chairman may determine. One member from management, one member from
labor and one member from the general public shall be present in order to conduct review
hearings or other business. All decisions of the board shall be determined by a majority
decision.
C. The review board shall employ a staff necessary for the efficient administration
of the board's activities. All such personnel of the review board shall be under the
supervision of the chairman of the review board. Such employees shall be paid from the
general fund, subject to legislative appropriation.
D. Board members shall receive compensation pursuant to section 38-611 which shall
be paid from the general fund, subject to legislative appropriation.
E. The sums appropriated to carry out the purposes of subsections C and D of this
section shall be appropriated to the review board and shall not exceed twenty thousand
dollars per year and are exempt from the provisions of section 35-190 relating to lapsing
of appropriations. Such sums shall be kept separate and apart from any funds of the
industrial commission and shall be available only to the review board.
F. No member of the review board shall participate on a matter with which he is
personally associated. If a member disqualifies himself pursuant to this subsection or
is unable to participate for any other reason on a particular matter, the governor shall
appoint a person as a temporary member to participate in such hearing. The occupational
safety and health advisory committee shall submit to the governor a list of names of
persons to be considered for a temporary appointment. Such person shall meet the
qualifications of subsection A of this section, and shall be representative of the same
area as that of the member for whom he is serving as alternate.
23-423 Review board rights and procedures
A. A request for review to the review board shall be filed with the commission
within fifteen days from the date the decision was mailed to the parties and copies of
the request shall be mailed to all other parties to the proceeding before the
administrative law judge. For the purposes of this section, "filed" means deposited in
the United States mail, postage prepaid or actually received by the commission.
B. The request for review shall state the grounds for review and whether oral
argument is requested.
C. When review has been requested, the record of such oral proceedings at the
hearing before the administrative law judge for purposes of the review shall be
transcribed at the expense of the party requesting review. The record shall be certified
to be true and correct by the administrative law judge.
D. Notice of review shall be given the parties by mail by the board.
E. If oral argument is requested a hearing date shall be established and notice of
such will be sent with the notice of review to the parties.
F. The review of the board shall be based upon the record submitted to it under the
provisions of subsection C and such oral argument as may be requested and received. If
the board determines that a case has been improperly, incompletely or otherwise
insufficiently developed or heard by the administrative law judge, it may remand the case
to the administrative law judge for further evidence taking, correction or other
necessary action.
G. The board may affirm, reverse, modify or supplement the decision of the
administrative law judge and make such disposition of the case as it determines to be
appropriate. It shall make a decision within thirty days after review has been
submitted.
H. The decision of the board shall be filed with the commission and a copy thereof
sent by mail to the parties.
1. All decisions of the review board shall be in writing.
2. Decisions of the review board shall be made by a majority vote of the review
board.
3. A decision of the review board is binding upon the director and the division
with respect to the parties involved in the particular appeal. The director shall have
the right to seek judicial review of a review board decision irrespective of whether or
not he appeared or participated in the appeal to the review board.
I. The decision of the board is final unless within ten days after the date of
service of copies of such decision on the parties, one of the parties applies to the
court of appeals for a writ of certiorari to review the lawfulness of the decision. A
copy of such application shall be forthwith transmitted to the clerk of the court, to the
review board, to the commission and to the other parties and within ten days therefrom,
the commission shall certify the record, proceedings and evidence before the
administrative law judge and the review board to the court of appeals. Upon such filing,
the court shall have jurisdiction of the proceedings and of the question determined
therein, and shall have power to make and enter upon the pleadings, testimony and
proceedings set forth in such record a decree affirming, modifying or setting aside in
whole or in part, the order of the review board and enforcing the same to the extent that
such order is affirmed or modified. The commencement of proceedings under this
subsection shall not, unless ordered by the court, operate as a stay of the order of the
review board. No objection that has not been urged before the review board shall be
considered by the court, unless the failure or neglect to urge such objection shall be
excused because of extraordinary circumstances. The findings of the review board with
respect to questions of fact, if supported by substantial evidence on the record
considered as a whole, shall be conclusive. If any party shall apply to the court for
leave to adduce additional evidence and shall show to the satisfaction of the court that
such additional evidence is material and that there were reasonable grounds for the
failure to adduce such evidence in the hearing before the administrative law judge, the
court may order such additional evidence to be taken before the administrative law judge
and to be made a part of the record. Petitions filed under this subsection shall be
heard expeditiously and the decision of the review board shall contain a statement of
this right of appeal.
23-425 Employee discharge or discrimination
A. No person shall discharge or in any manner discriminate against any employee
because such employee has filed any complaint or instituted or caused to be instituted
any proceeding under or related to this article or has testified or is about to testify
in any such proceeding or because of the exercise by such employee on behalf of himself
or others of any right afforded by this article.
B. Any employee who believes that he has been discharged or otherwise discriminated
against by any person in violation of this section may within thirty days after such
violation occurs, file a complaint with the commission alleging such
discrimination. Upon receipt of such complaint, the commission shall cause such
investigation to be made as it deems appropriate. If upon such investigation, the
commission determines that the provisions of this section have been violated, it shall
bring an action in any appropriate superior court against such person. In any such
action the superior court shall have jurisdiction for cause shown to restrain violations
of subsection A and order all appropriate relief including rehiring or reinstatement of
the employee to his former position with back pay.
C. Within ninety days of the receipt of a complaint filed under this section the
commission shall notify the complainant of its determination under subsection B.
23-426 Confidentiality of trade secrets
All information reported to or likewise obtained by the commission or its
representatives in connection with any inspection or investigation under this article
which contains or which might reveal a trade secret shall be considered confidential for
the purpose of this article, except that such information may be disclosed to other
representatives of the division or commission concerned with carrying out this article or
when relevant in any proceeding under this article. In any such proceeding, the
director, the commission, the administrative law judge, the review board or the courts
shall issue orders as may be appropriate to protect the confidentiality of trade secrets.
23-427 Employer recordkeeping
A. Each employer shall make, keep and preserve, and make available to the
commission such records regarding his activities relating to this article as the
commission may prescribe by regulations as necessary or appropriate for the enforcement
of this article or for developing information regarding the causes and prevention of
occupational accidents and illnesses. In order to carry out the provisions of this
subsection such regulations may include provisions requiring employers to conduct
periodic inspections. The commission shall also issue regulations requiring that
employers, through posting of notices or other appropriate means, keep their employees
informed of their protections and obligations under this article including the provisions
of applicable standards.
B. The commission shall prescribe regulations requiring employers to maintain
accurate records of and to make periodic reports on work-related deaths, injuries and
illnesses other than minor injuries requiring only first aid treatment and which do not
involve medical treatment, loss of consciousness, restriction of work or motion or
transfer to another job.
C. The commission shall issue regulations requiring employers to maintain accurate
records of employee exposures to potentially toxic materials or harmful physical agents
which are required to be monitored or measured under section 23-410. Such regulations
shall provide employees or their representatives with an opportunity to observe such
monitoring or measuring and to have access to the records thereof. Such regulations
shall also make appropriate provision for each employee or former employee to have access
to such records as will indicate his own exposure to toxic materials or harmful physical
agents. Each employer shall promptly notify any employee who has been or is being
exposed to toxic materials or harmful physical agents in concentrations or at levels
which exceed those prescribed by an applicable occupational safety and health standard
promulgated under section 23-410 and shall inform any employee who is being thus exposed
of the corrective action being taken.
D. Any information obtained by the commission under this article shall be obtained
with a minimum burden upon employers, especially those operating small
businesses. Unnecessary duplication of efforts in obtaining information shall be reduced
to the maximum extent feasible, with concern for the required federal information.
E. No recordkeeping or information requirements promulgated by the commission shall
eliminate an employer's responsibility under the federal law to provide information
required by the secretary of labor.
23-428 State legal representation
A. The office of the chief counsel of the industrial commission of ARIZONA may
appear for and represent the commission or the director or his authorized representative
in any civil litigation brought under this article.
B. In any criminal proceeding initiated under this article, the office of the chief
counsel of the industrial commission of ARIZONA may appear for, represent and prosecute
in the name of the state of ARIZONA.
23-429 Employer and employee representation
Notwithstanding the provisions of section 32-261, any affected employee or employer
may designate any person or persons to represent him for the purpose of proceedings
before any administrative law judge or review board under this article.
23-430 Political subdivision jurisdiction
A. Nothing in this article shall prevent any county, city or other political
subdivision of the state or any court from asserting jurisdiction over any occupational
safety or health issue with respect to which no standard or regulation is in effect under
section 23-410 or 23-414.
B. Any county, city or other political subdivision of this state which at any time
desires to assume responsibility for development or enforcement of occupational safety
and health standards or regulations relating to any occupational safety or health issue
with respect to which a state standard or regulation has been promulgated under section
23-410 or 23-414 shall submit a plan for the development or enforcement of such standards
and regulations to the commission.
C. The commission may approve any plan submitted under subsection B of this
section, if such plan is as effective as the state development or enforcement program and
does not conflict with the requirements of the United States department of labor under
the occupational safety and health act of 1970.
D. The commission shall periodically review any development or enforcement program
approved under subsection C of this section, and shall reassume all responsibility
therein for the development or enforcement of occupational safety and health standards
and regulations if the commission determines that the program of any such county, city or
other political subdivision is not as effective as the state program.
23-431 Standards of competency
The commission may establish requirements and standards of competency for
individuals involved in inspecting, constructing, relocating, altering, dismantling,
maintaining or repairing elevators, dumbwaiters, escalators, moving walks, boilers and
pressure vessels.
23-432 Testimony of witnesses; compensation; order of superior court to appear
The commission may require the attendance and testimony of witnesses and the
production of evidence under oath. Witnesses shall be paid the same fees and mileage
paid witnesses in courts of this state. If any person fails or refuses to obey such an
order, the commission may apply to any superior court in any county where such person is
found, resides or transacts business for an order requiring such person to produce
evidence and to give testimony as ordered. Failure to obey such order shall be contempt
of court.
23-433 Consulting program
A. The division shall develop a consulting program utilizing visits to the
workplace of employers to provide consultation and advice to such employers. Such
visits:
1. May be conducted only upon request by an employer for consultation and advice on
the interpretation or applicability of standards, possible alternative ways of complying
with applicable standards or other matters related to accident prevention, occupational
health or obligations pursuant to this article.
2. Shall be limited to matters specified in the request.
B. If, after evaluating such request, the director determines an alternative means
of providing consultation is more appropriate and equally effective, he may provide such
alternative means rather than consultation at the workplace.
C. The director shall make recommendations regarding solutions to matters within
the scope of the workplace consultation.
D. No visit pursuant to this section shall be regarded as an inspection or
investigation pursuant to section 23-415. No citation shall be issued nor shall any
civil penalties be proposed upon such visit, except that nothing in this section shall
affect in any manner any provision of this article the purpose of which is to eliminate
imminent danger violations.
23-471 Definitions
In this article, unless the context otherwise requires:
1. "Authorized representative" means the boiler chief and boiler inspector employed
by the division.
2. "Certificate" means a certificate of competency.
3. "Certificate inspection" means an internal inspection, when construction
permits, otherwise it means as complete an inspection as possible.
4. "Commission" means the industrial commission of ARIZONA.
5. "Director" means the director of the division of occupational safety and health.
6. "Division" means the division of occupational safety and health of the
commission.
7. "Heating boilers" means a steam or vapor boiler operating at a pressure not
exceeding fifteen pounds per square inch or a hot water boiler operating at a pressure
not exceeding one hundred sixty pounds per square inch or a temperature not exceeding two
hundred fifty degrees Fahrenheit.
8. "High temperature water boiler" means a water boiler intended for operation at
pressures in excess of one hundred sixty pounds per square inch or temperatures in excess
of two hundred fifty degrees Fahrenheit.
9. "Interested party" means the commission, agents of the commission and any owner
or operator who has been issued a notice of violation.
10. "Lined hot water storage heater" means a fired lined water heater with linings
providing corrosion resistance for supplying potable hot water for commercial
purposes. Lined hot water storage heaters are exempted when none of the following
limitations are exceeded:
(a) Heat input of two hundred thousand British thermal units per hour.
(b) Water temperature of two hundred ten degrees Fahrenheit.
(c) Nominal water-containing capacity of one hundred twenty gallons.
11. "Owner" or "Operator" means any individual or type of organization including
this state and all political subdivisions of this state, who has title to or controls, or
has the duty to control, the operation of one or more boilers or lined hot water storage
heaters.
12. "Power boiler" means a boiler in which steam or other vapor is generated at a
pressure more than fifteen pounds per square inch.
13. "Process boiler" means a heating boiler or a power boiler used for processing
purposes where the make up water exceeds ten per cent.
23-472 Administration
The division shall administer the provisions of this article.
23-473 Owner's and operator's duty
Every owner or operator of any boiler or lined hot water storage heater shall:
1. Furnish, maintain and provide safe and adequate boilers or lined hot water
storage heaters.
2. Comply with all standards and regulations issued pursuant to this article.
23-474 Duties of commission
The commission shall:
1. Administer the provisions of this article through the division of occupational
safety and health.
2. Establish a boiler advisory board to assist the commission in drafting standards
and regulations.
3. Promulgate standards and regulations pursuant to section 23-475 and promulgate
such other rules and regulations as are necessary.
4. Exercise such other powers as are necessary to carry out the duties and
requirements of this article.
23-475 Duties of division
The division shall:
1. Except as provided in section 23-485, inspect boilers and lined hot water
storage heaters under this article.
2. Recommend standards, regulations and amendments to such standards and
regulations to the commission for approval or disapproval.
3. Enforce, under section 23-478, all standards and regulations adopted by the
commission.
23-476 Safety standards and regulations
A. Safety standards and regulations shall be formulated in the following manner:
1. The division shall either propose adoption of national consensus standards or
federal standards or draft such regulations as it considers necessary after conducting
sufficient investigation through the division's employees and through consultation with
the boiler advisory board and other persons knowledgeable in the business for which the
standards or regulations are being formulated.
2. Proposed standards or regulations, or both, shall be submitted to the commission
for its approval.
B. Any person who may be adversely affected by a standard or regulation issued
pursuant to this article may at any time prior to the sixtieth day after such standard or
regulation is promulgated file a complaint challenging the validity of such standard or
regulation with the superior court of the county in which the person resides or has his
or her principal place of business, for a judicial review of such standard or
regulation. The filing of such a complaint shall not, unless otherwise ordered by the
court, operate as a stay of the standard or regulation. The determinations of the
commission shall be conclusive if supported by substantial evidence in the record
considered as a whole.
C. In case of conflict between standards and regulations, the regulations shall
take precedence.
23-477 Notice requesting investigation
A. Any person may make a request for an investigation by the division into alleged
violations of section 23-473 by giving notice to the director or the director's
authorized representative of such violation or danger. Such notice shall be reduced to
writing, set forth with reasonable particularity the grounds for the notice and be
signed.
B. If upon receipt of such notification the director determines that there are
reasonable grounds to believe that such violation or danger exists, the director shall
make an investigation pursuant to this article as soon as practicable to determine if
such violation or danger exists. If the director determines there are no reasonable
grounds to believe that a violation or danger exists, the director shall notify the
requesting party in writing of such determination.
23-478 Enforcement
A. If the division, following an inspection or investigation determines that there
is reasonable cause to believe that there exists a violation of a standard or regulation
the division shall issue a notice of violation directing any repairs, improvements,
changes or additions necessary to eliminate the hazard. Each notice of violation shall
be in writing, delivered either by mail or in person and shall contain the following:
1. A particular description of the nature of the violation, including a reference
to the provision of this article or of any standard or regulation alleged to have been
violated.
2. A reasonable time for the abatement of the violation.
B. Each notice of violation issued pursuant to this section or a copy or copies of
such notice of violation shall be prominently posted at or near each place a violation
referred to in the notice of violation existed.
C. If in the opinion of the director or the director's authorized representative
the continued operation of the defective boiler or lined hot water storage heater
constitutes an immediate danger to the safety of the occupants of the establishment or
the persons operating such boiler or lined hot water storage heater the director or
director's authorized representative may condemn such device and require it to be
returned to a condition allowing safe operation before its use is resumed.
D. Upon failure of an owner or operator to comply with either the requirements of a
notice of violation issued pursuant to subsection A or condemnation pursuant to this
subsection, the commission may file an action in the superior court of the county where
the violation occurred to enjoin the owner or operator from engaging in further acts in
violation of the requirements of this notice of violation or the condemnation. Any
person found to be in contempt of an injunctive order of the court shall be fined not
less than fifty nor more than three hundred dollars with each day of violation
constituting a separate contempt.
23-479 Hearing rights and procedures
A. Any interested party may request a hearing before the commission to contest the
notice of violation issued pursuant to this article.
B. A request for hearing shall be made in writing, signed by or on behalf of the
interested party and include such party's address. The request shall also state with
particularity the violation or abatement period which is being protested. The request
for hearing shall be filed within fifteen days from the issuance of the notice of
violation or the notice of violation will be deemed final and admitted. For the purposes
of this section "filed" means actually received at an office of the commission.
C. The commission shall refer the request for the hearing to the administrative law
judge division for determination as expeditiously as possible. The presiding
administrative law judge may dismiss a request for hearing if it appears that the
disputed issues have been resolved by the parties. Any interested party who objects to
such dismissal may request a review pursuant to section 23-481.
D. At least twenty days' prior notice of the time and place of the hearing shall be
given to all parties in interest by mail at their last known address. Hearings shall be
held in the county where the alleged violation occurred or such other place selected by
the administrative law judge.
E. A record of all proceedings at the hearing shall be made but need not be
transcribed unless a party applies to the court of appeals for a petition for special
action pursuant to section 23-483. The record of the proceedings if not transcribed
shall be kept for at least two years.
F. Except as otherwise provided in this section and rules or procedure established
by the commission, the administrative law judge is not bound by common law or statutory
rules of evidence or by technical or formal rules of procedure and may conduct the
hearing in any manner that will achieve substantial justice.
G. Any party shall be entitled to issuance and service of subpoenas under the
general subpoena powers of the commission. Any party or a representative may serve such
subpoenas.
H. Any interested party or an authorized agent shall be entitled to inspect the
file of the commission if such authorization is filed in writing with the commission.
I. Within thirty days after the date of notice of hearing, any interested party to
a hearing before the commission may file an affidavit for change of administrative law
judge against any administrative law judge of the commission hearing such matters or
commencing to hear such matter, setting forth any of the grounds as provided in
subsection J of this section. The administrative law judge shall immediately transfer
the matter to another administrative law judge of the commission who shall preside. Not
more than one change of administrative law judge shall be granted to any one party.
J. Grounds which may be alleged for change of administrative law judge are that:
1. The administrative law judge has been engaged as counsel in the hearing prior to
appointment as administrative law judge.
2. The administrative law judge is otherwise interested in the hearing.
3. The administrative law judge is related to a party to the hearing.
4. The administrative law judge is a material witness in the hearing.
5. The party filing the affidavit has cause to believe and does believe that on
account of the bias, prejudice or interest of the administrative law judge he cannot
obtain a fair and impartial hearing.
23-480 Decisions of administrative law judge; contents; disposition and effect
A. Upon the conclusion of any hearing, or prior to the conclusion with concurrence
of the parties, the administrative law judge shall, not later than thirty days after the
matter is submitted for decision, determine the matter and make a decision in accordance
with his determination.
B. In the event of the demise, resignation, retirement, termination of employment
or other incapacitation of the presiding administrative law judge, the decision shall be
determined by the chief administrative law judge or an appointee.
C. The decision shall become a part of the commission file. A copy of the decision
shall be sent immediately by mail to all parties in interest.
D. The decision is final when entered unless within fifteen days after the date on
which a copy of the decision is mailed to the parties, one of the parties files a request
for review pursuant to section 23-481. The decision shall contain a statement explaining
the rights of the parties pursuant to section 23-481.
23-481 Decision upon review
A. The request for review of an administrative law judge decision need only state
that the party requests a review of the decision. The request may be accompanied by a
memorandum of points and authorities, in which event any other interested party shall
have fifteen days from the date of filing in which to respond. Failure to respond will
not be deemed an admission against interest.
B. The request for review shall be filed with the division and copies of the
request shall be mailed to all other parties to the proceeding.
C. When review has been requested, the record of such oral proceedings at the
hearings before the administrative law judge for purposes of the review shall be
transcribed at the expense of the party requesting review.
D. Notice of the review shall be given to the parties by mail.
E. The review shall be made by the presiding administrative law judge and shall be
based upon the record and the memoranda submitted pursuant to the provisions of
subsection A of this section.
F. The presiding administrative law judge may affirm, reverse, rescind, modify or
supplement the decision and make such disposition of the case as is determined to be
appropriate. A decision upon review shall be made within sixty days after the review has
been requested.
G. The decision upon review shall become a part of the commission file and a copy
sent by mail to the parties.
H. The decision upon review shall be final unless within fifteen days after the
date of mailing of copies of such decision to the parties, one of the parties applies to
the court of appeals by a petition for special action pursuant to section 23-483. The
decision shall contain a statement explaining the rights of the parties pursuant to this
section and section 23-483.
23-482 Time for compliance with order; extension of time; effect of orders
A. The commission shall, upon application of any employer, grant such time as
reasonably necessary for compliance with an order. A person may petition the commission
for an extension of time to comply with an order, which the commission shall grant if it
finds the extension necessary.
B. All orders of the commission in conformity with law shall be valid and in force
and prima facie reasonable and lawful until found otherwise in an action brought for such
purpose pursuant to the provisions of this article or until altered or revoked by the
commission.
C. A substantial compliance with the requirements of this article shall be
sufficient to give effect to the orders of the commission, and they shall not be declared
inoperative, illegal or void for an omission of a technical nature.
23-483 Petition for special action to review lawfulness of decision, order or decision upon review; procedure
A. Any party affected by a decision of the commission or by a decision upon review
pursuant to section 23-481 may apply to the court of appeals by a petition for special
action to review the lawfulness of the decision, order or decision upon review.
B. The petition for special action provided by subsection A of this section and by
section 23-481 shall be made returnable within ten days and shall direct the commission
to certify its record, proceedings and evidence to the court of appeals. The court of
appeals may quash or dismiss the petition for special action upon the grounds of
dismissal applicable to civil appeals. The review shall be limited to determining
whether or not the commission acted without or in excess of its power and, if findings of
fact were made, whether or not such findings of fact support the order or decision. If
necessary, the court may review the evidence.
C. Each party to the proceedings before the commission may appear in the court of
appeals.
D. The court of appeals shall enter judgment either affirming or setting aside the
order or decision.
E. The rules of civil procedure relating to special actions shall apply so far as
applicable and not in conflict with this article.
23-484 Nonimpairment of other agencies
Nothing contained in this article shall in any way impair the authority or
responsibility of political subdivisions of this state with regard to the local
enforcement of licensing, safety or police regulation authorized by local ordinance or
state law if, upon determination by the commission, the enforcement program employed by
such political subdivision is found to be at least equal to the state enforcement
program.
23-485 Special inspectors
A. The division, upon the request of any company authorized to insure against loss
from explosion of boilers or lined hot water storage heaters in this state, may issue to
any inspector of that company a certificate as a special inspector. The division may
also, upon the request of any company operating boilers or lined hot water storage
heaters in this state, issue to any inspector of the company a certificate as a special
inspector. Before receiving a certificate, the inspector must satisfactorily pass a
written examination given by the division.
B. A certificate as a special inspector in this state shall be issued, in lieu of
such examination, if the inspector holds a certificate of competency as an inspector of
boilers or lined hot water storage heaters for a state that has a standard of examination
substantially equal to that of this state or a commission as an inspector of boilers and
pressure vessels issued by the national board of boiler and pressure vessel inspectors.
C. A certificate as a special inspector for a company operating boilers or lined
hot water storage heaters in this state shall be issued only if, in addition to meeting
the requirements of this section, the inspector is employed full time by such company and
the inspector's duties include making inspections of boilers or lined hot water storage
heaters to be used by such company and not for resale.
D. Each company employing such special inspectors, within sixty days following each
boiler certificate inspection made by the inspectors, shall file a report of the
inspection with the division upon appropriate forms. Reports of external inspections
shall not be required except when such inspections disclose that the boiler or lined hot
water storage heater is in a dangerous condition.
E. All insurance companies shall notify the division of all boilers or lined hot
water storage heaters upon which insurance is written. All insurance companies shall
also notify the division of all boilers or hot water storage heaters upon which insurance
is cancelled, not renewed or suspended because of unsafe conditions.
23-487 Political subdivision jurisdiction
This article shall apply to any political subdivisions of this state except those
political subdivisions having boiler inspection regulations equal to those of this state
at the time this article becomes effective.
23-488 Division inspection service
A. The division may enter into agreements to provide inspection services during the
manufacture, assembly, erection, or repair of boilers, lined hot water storage heaters or
any appurtenant components to such boilers or heaters whenever such inspections are
requested by holders of authorized symbols of American society of mechanical engineers or
the national board of boiler and pressure vessel inspectors.
B. The commission, through the division, may fix and collect inspection fees which
shall be determined on the basis of an hourly rate for inspection plus reimbursement for
actual expenses incurred, provided that no hourly rate for inspection shall exceed thirty
dollars per hour.
C. The commission shall deposit, pursuant to sections 35-146 and 35-147, all fees
received in the state general fund. 23-491.01 Administration
The division shall administer the provisions of this article.
23-491.02 Owner's and operator's duty
Every owner and operator of a conveyance shall:
1. Construct, furnish, maintain and provide safe and adequate devices with which to
safely and properly convey or move all persons and material utilizing the services
offered by the owner or operator of such device.
2. Comply with all standards and regulations issued pursuant to this article.
23-491.03 Existing conveyances
Existing conveyances lawfully installed prior to the effective date of this article
may continue in use if the use is, in the opinion of the director, not a hazard to life,
health or property.
23-491.04 Commission powers and duties
A. The commission shall:
1. Administer the provisions of this article through the division of occupational
safety and health.
2. Establish an elevator advisory board to assist the commission in drafting
standards and regulations.
3. Promulgate standards and regulations pursuant to section 23-491.05 as required
and promulgate such other rules and regulations and exercise such other powers as are
necessary to carry out the provisions of this article.
B. The commission may, by rule and regulation, set fees not to exceed the actual
cost for inspections performed pursuant to this article.
23-491.05 Division powers and duties
The division shall:
1. Inspect conveyances annually and may do so at other times when deemed necessary
or appropriate by the division.
2. Recommend to the commission for approval or disapproval standards and
regulations and amendments to such standards and regulations.
3. Enforce, pursuant to section 23-491.09, all standards and regulations
promulgated by the commission.
23-491.06 Development of standards and regulations
A. Safety standards and regulations shall be formulated in the following manner:
1. The division shall either propose adoption of national concensus standards or
federal standards or draft such regulations as it considers necessary after conducting
sufficient investigations through the division's employees and through consultation with
the board and other persons knowledgeable in the business for which the standards or
regulations are being formulated.
2. Proposed standards or regulations, or both, shall be submitted to the commission
for its approval.
B. Any person who may be adversely affected by a standard or regulation issued
under this article may, at any time within sixty days after such standard or regulation
is promulgated by the commission, file a complaint challenging the validity of such
standard or regulation with the superior court of the county in which the person resides
or has his principal place of business, for a judicial review of such standard or
regulation. The filing of such a complaint shall not, unless otherwise ordered by the
court, operate as a stay of the standard or regulation. The determinations of the
commission shall be conclusive if supported by substantial evidence in the record
considered as a whole.
C. In case of conflict between standards and regulations, the regulations shall
take precedence.
23-491.07 Certificate of inspection
No conveyance shall be operated in this state without an annual certificate of
inspection issued by the division. The division shall issue such certificate of
inspection if, after inspection, the conveyance is found to comply with the standards and
regulations adopted pursuant to this article.
23-491.08 Notice requesting investigation; confidentiality; determination of grounds
A. Any person may make a request for an investigation by the division into alleged
violations of section 23-491.02 by giving notice to the director or the director's
authorized representative of such violation or danger. Such notice shall be in writing,
shall set forth with reasonable particularity the grounds for the notice and shall be
signed by the person making the request. Upon the request of the person signing the
notice, such person's name shall not appear on any copy of such notice or any record
published, released or made available.
B. If upon receipt of such notification the director determines that there are
reasonable grounds to believe that such violation or danger exists, the director shall
make an investigation in accordance with the provisions of this article as soon as
practicable to determine if such violation or danger exists. If the director determines
there are no reasonable grounds to believe that a violation or danger exists, the
director shall notify the requesting party in writing of such a determination.
23-491.09 Enforcement
A. If the division, following an inspection or investigation, determines that there
is reasonable cause to believe that there is a violation of a standard or regulation, the
division shall issue a correction order directing any repairs, improvements, changes or
additions necessary to eliminate the hazard. Each correction order shall be in writing,
delivered either by mail or in person and shall contain the following:
1. A particular description of the nature of the violation, including a reference
to the provision of this article or of any standard or regulation alleged to have been
violated.
2. A reasonable time for the abatement of the violation.
B. No correction order may be issued after the expiration of a period of six months
from the date of the inspection or investigation which produced evidence of the
violation.
C. If in the opinion of the director or the director's authorized representative
the continued operation of the defective device constitutes an immediate danger to the
safety of the persons operating or being conveyed by such device, the director or the
director's authorized representative may condemn such device and require it to be
returned to a condition allowing safe operation before its use is resumed.
D. Upon failure of an owner or operator to comply with either the requirements of a
correction order issued pursuant to subsection A or condemnation pursuant to this
subsection, the commission may file an action in the superior court of the county where
the violation occurred to enjoin the owner or operator from engaging in further acts in
violation of the requirements of the correction order or the condemnation. Any person
found to be in contempt of an injunctive order of the court shall be fined not less than
fifty nor more than three hundred dollars with each day of violation constituting a
separate contempt.
23-491.10 Hearing rights and procedures
A. Any interested party may request a hearing before the commission to contest any
correction order issued pursuant to this article.
B. A request for hearing shall be made in writing, signed by or on behalf of the
interested party and include such party's address.
C. The commission shall refer the request for the hearing to the administrative law
judge division for determination as expeditiously as possible. The presiding
administrative law judge may dismiss a request for hearing if it appears that the
disputed issues have been resolved by the parties. Any interested party who objects to
such dismissal may request a review pursuant to section 23-491.12.
D. At least twenty days' prior notice of the time and place of the hearing shall be
given to all parties in interest by mail at their last known address. Hearings shall be
held in the county where the alleged violation occurred or such other place selected by
the administrative law judge.
E. A record of all proceedings at the hearing shall be made but need not be
transcribed unless a party applies to the court of appeals for a petition for special
action pursuant to section 23-491.14. The record of the proceedings if not transcribed
shall be kept for at least two years.
F. Except as otherwise provided in this section and rules or procedures established
by the commission, the administrative law judge is not bound by common law or statutory
rules of evidence or by technical or formal rules of procedure and may conduct the
hearing in any manner that will achieve substantial justice.
G. Any party shall be entitled to issuance and service of subpoenas under the
general subpoena powers of the commission. Any party or a representative may serve such
subpoenas.
H. Upon the filing of a request for hearing, any interested party or his authorized
agent is entitled to inspect the file of the commission provided the authorized agent has
filed the authorization to inspect with the commission.
I. Within thirty days after the date of notice of hearing, any interested party to
a hearing before the commission may file an affidavit for change of administrative law
judge against any administrative law judge of the commission hearing such matter or
commencing to hear such matter, setting forth any of the grounds as provided in
subsection J of this section. The administrative law judge shall immediately transfer
the matter to another administrative law judge of the commission who shall preside. Not
more than one change of administrative law judge shall be granted to any one party.
J. Grounds which may be alleged for change of administrative law judge are that:
1. The administrative law judge has been engaged as counsel in the hearing prior to
appointment as administrative law judge.
2. The administrative law judge is otherwise interested in the hearing.
3. The administrative law judge is related to a party to the hearing.
4. The administrative law judge is a material witness in the hearing.
5. The party filing the affidavit has cause to believe and does believe, that on
account of the bias, prejudice or interest of the administrative law judge, he cannot
obtain a fair and impartial hearing.
23-491.11 Decisions of administrative law judge; contents; disposition and effect
A. Upon the conclusion of any hearing, or prior to the conclusion with concurrence
of the parties, the administrative law judge shall, not later than thirty days after the
matter is submitted for decision, determine the matter and make a decision in accordance
with the determination.
B. In the event of the demise, resignation, retirement, termination of employment
or other incapacitation of the presiding administrative law judge, the decision shall be
determined by the chief administrative law judge or an appointee.
C. The decision shall become a part of the commission file. A copy of the decision
shall be sent immediately by mail to all parties in interest.
D. The decision is final when entered unless within fifteen days after the date on
which a copy of the decision is mailed to the parties, one of the parties files a request
for review pursuant to section 23-491.12. The decision shall contain a statement
explaining the rights of the parties pursuant to such section.
23-491.12 Decision upon review
A. The request for review of an administrative law judge decision need only state
that the party requests a review of the decision. The request may be accompanied by a
memorandum of points and authorities, in which event any other interested party shall
have fifteen days from the date of filing in which to respond. Failure to respond will
not be deemed an admission against interest.
B. The request for review shall be filed with the division and copies of the
request shall be mailed to all other parties to the proceeding.
C. When review has been requested, the record of such oral proceedings at the
hearings before the administrative law judge for purposes of the review shall be
transcribed at the expense of the party requesting review.
D. Notice of the review shall be given to the parties by mail.
E. The review shall be made by the presiding administrative law judge and shall be
based upon the record and the memorandum submitted pursuant to subsection A of this
section.
F. The presiding administrative law judge may affirm, reverse, rescind, modify or
supplement the decision and make such disposition of the case as is determined to be
appropriate. A decision upon review shall be made within sixty days after the review has
been requested.
G. The decision upon review shall become a part of the commission file and a copy
shall be sent by mail to the parties.
H. The decision upon review shall be final unless within fifteen days after the
date of mailing of copies of such decision to the parties one of the parties applies to
the court of appeals by a petition for special action pursuant to section 23-491.14. The
decision shall contain a statement explaining the rights of the parties pursuant to this
section and section 23-491.14.
23-491.13 Effective date of orders; time for compliance; effect of orders
A. The commission shall, upon application of any owner or operator, grant such time
as reasonably necessary for compliance with an order. A person may petition the
commission for an extension of time to comply with an order which the commission shall
grant if it finds the extension necessary.
B. All orders of the commission in conformity with law shall be valid and in force
and prima facie reasonable and lawful until found otherwise in an action brought for such
purpose pursuant to the provisions of this article or until altered or revoked by the
commission.
C. A substantial compliance with the requirements of this article shall be
sufficient to give effect to the orders of the commission, and they shall not be declared
inoperative, illegal or void for an omission of a technical nature.
23-491.14 Petition for special action to review lawfulness of decision, order or decision upon review; procedure
A. Any party affected by a decision of the commission or by a decision upon review
pursuant to section 23-491.12 may apply to the court of appeals by a petition for special
action to review the lawfulness of the decision, order or decision upon review.
B. The petition for special action provided by subsection A of this section and by
section 23-491.12 shall be made returnable within ten days and shall direct the
commission to certify its record, proceedings and evidence to the court of appeals. The
court of appeals may quash or dismiss the petition for special action upon the grounds of
dismissal applicable to civil appeals. The review shall be limited to determining
whether or not the commission acted without or in excess of its power and, if findings of
fact were made, whether or not such findings of fact support the order or decision. If
necessary, the court may review the evidence.
C. Each party to the proceedings before the commission may appear in the court of
appeals.
D. The court of appeals shall enter judgment either affirming or setting aside the
order or decision.
E. The rules of civil procedure relating to special actions shall apply so far as
applicable and not in conflict with this article.
23-491.15 Nonimpairment of other agencies
Nothing contained in this article shall in any way impair the authority or
responsibility of political subdivisions of this state with regard to the local
enforcement or licensing, safety or police regulation authorized by local ordinance or
state statute if, upon determination by the commission, the standards employed by such
political subdivision are found to be at least equal to those promulgated by the
commission.
23-491 Definitions
In this article, unless the context otherwise requires:
1. "Authorized representative" means the elevator chief and elevator inspector
employed by the division.
2. "Board" means the elevator advisory board established to assist the commission
in drafting standards and regulations.
3. "Commission" means the industrial commission of ARIZONA.
4. "Conveyance" means an elevator, dumbwaiter, escalator, moving walk, manlift,
personnel hoist, material hoist, stage lift and special purpose personnel elevator,
excluding conveyances located at mines and subject to regulation and inspection by the
state mine inspector pursuant to the provisions of title 27, chapter 3.
5. "Director" means the director of the division of occupational safety and health.
6. "Division" means the division of occupational safety and health of the
industrial commission.
7. "Dumbwaiter" means a hoisting and lowering mechanism with a car of limited
capacity and size which moves in guides in a substantially vertical direction and is used
exclusively for carrying material.
8. "Elevator" means a hoisting and lowering mechanism equipped with a car or
platform which moves in guides in substantially vertical direction and which serves two
or more floors of a building or structure.
9. "Escalator" means a power driven, inclined, continuous stairway used for raising
or lowering passengers.
10. "Interested party" means the commission and its agents and the owner or operator
who has been issued a correction order.
11. "Manlift" means a device consisting of a power driven endless belt moving in one
direction only and provided with steps or platforms and attached handholds for the
transportation of personnel from floor to floor.
12. "Material hoist" means a hoist for raising and lowering materials only and
prohibiting the hoisting of persons.
13. "Moving walk" means a type of passenger carrying device on which passengers
stand or walk and in which the passenger carrying surface remains parallel to its
direction of motion and is uninterrupted.
14. "Owner" or "Operator" means an individual or organization including this state
and all political subdivisions of this state who has title to, controls or has the duty
to control the operation of one or more conveyances, but shall not include an individual
or organization engaged in mining or metallurgical operations whose operation is subject
to regulation and inspection by the state mine inspector pursuant to the provisions of
title 27, chapter 3.
15. "Personnel hoist" means a mechanism for use in connection with the construction,
alteration, maintenance or demolition of a building, structure or other work, used for
hoisting and lowering workers and materials and equipped with a car that moves on guide
members during its vertical movement. The term includes a hoistway of a personnel hoist.
16. "Special purpose personnel elevator" means a passenger, hand powered,
counterweighted device or an electric powered device which travels vertically in guides
and serves two or more landings.
17. "Stage lift" means a hoisting and lowering mechanism equipped with a platform
which moves in guides in a substantially vertical direction and which serves one or more
landings.
23-493.01 Collection of samples
A. In order to test reliably for the presence of drugs, an employer may require
samples from its employees and prospective employees and may require presentation of
reliable individual identification from the person being tested to the person collecting
the samples. Collection of the sample shall conform to the requirements of this
article. The employer may designate the type of sample to be used for this testing.
B. In order to test reliably for alcohol impairment, an employer may require
samples from its employees and identification from the person being tested to the person
collecting the samples. Collection of the sample shall conform to the requirements of
this article. The employer may designate the type of sample to be used for this testing.
23-493.02 Scheduling of tests
Regarding the timing and cost of drug tests and alcohol impairment tests, and in
order for an employer to qualify for the benefits of this article:
1. Any drug testing or alcohol impairment testing by an employer of employees
normally shall occur during, or immediately before or after, a regular work period. The
testing by an employer shall be deemed work time for the purposes of compensation and
benefits for current employees.
2. An employer shall pay all actual costs for drug testing and alcohol impairment
testing required of employees by the employer. An employer may, at its discretion, pay
the costs for drug testing of prospective employees.
3. An employer shall pay reasonable transportation costs to current employees if
their required tests are conducted at a location other than the employee's normal work
site.
23-493.03 Testing procedures
All sample collection and testing for drugs and alcohol impairment under this
article shall be performed according to the following conditions:
1. The collection of samples shall be performed under reasonable and sanitary
conditions.
2. Sample collections shall be documented and these documentation procedures shall
include both of the following:
(a) Labeling of samples in order to reasonably preclude the possibility of
misidentification of the person tested in relation to the test result provided.
(b) An opportunity for the person to be tested to provide notification of any
information that may be considered relevant to the test, including identification of
currently or recently used prescription or nonprescription drugs or other relevant
medical information.
3. Sample collection, storage and transportation to the place of testing shall be
performed in a manner reasonably designed to preclude the possibility of sample
contamination, adulteration or misidentification.
4. Sample testing shall comply with scientifically accepted analytical methods and
procedures. Drug testing shall be conducted at a laboratory approved or certified by the
United States department of health and human services, the college of American
pathologists or the department of health services.
5. Drug testing shall include confirmation of any positive drug test results for
employees. Confirmation of positive drug test results for employees shall be by use of a
different chemical process than was used in the initial drug screen. The second or
confirmatory drug test shall be a chromatographic technique such as gas
chromatography-mass spectrometry or another comparably reliable analytical method.
23-493.04 Testing policy requirements
A. Testing or retesting for the presence of drugs or alcohol by an employer shall
be carried out within the terms of a written policy that has been distributed to every
employee subject to testing or that has been made available to employees in the same
manner as the employer informs its employees of other personnel practices, including
inclusion in a personnel handbook or manual or posting in a place accessible to
employees. The employer shall inform prospective employees that they must undergo drug
testing. The written policy shall include at least the following:
1. A statement of the employer's policy respecting drug and alcohol use by
employees.
2. A description of those employees or prospective employees who are subject to
testing.
3. The circumstances under which testing may be required.
4. The substances as to which testing may be required.
5. A description of the testing methods and collection procedures to be used.
6. The consequences of a refusal to participate in the testing.
7. Any adverse personnel action that may be taken based on the testing procedure or
results.
8. The right of an employee, on request, to obtain the written test results.
9. The right of an employee, on request, to explain in a confidential setting, a
positive test result.
10. A statement of the employer's policy regarding the confidentiality of the test
results.
B. Within the terms of the written policy, an employer may require the collection
and testing of samples for any job-related purposes consistent with business necessity
including:
1. Investigation of possible individual employee impairment.
2. Investigation of accidents in the workplace. Employees may be required to
undergo drug testing or alcohol impairment testing for accidents if the test is taken as
soon as practicable after an accident and the test is administered to employees who the
employer reasonably believes may have contributed to the accident.
3. Maintenance of safety for employees, customers, clients or the public at large.
4. Maintenance of productivity, quality of products or services or security of
property or information.
5. Reasonable suspicion that an employee may be affected by the use of drugs or
alcohol and that the use may adversely affect the job performance or the work
environment.
C. In addition to the provisions of subsection B, employees or groups of employees
may be required to undergo drug testing on a random or chance basis.
D. If an employer institutes a policy of drug testing or alcohol impairment testing
under this article, all compensated employees including officers, directors and
supervisors shall be uniformly included in the testing policy.
E. Nothing in this article shall be construed to encourage, discourage, restrict,
limit, prohibit or require on-site drug testing or alcohol impairment testing.
23-493.05 Disciplinary procedures
An employer may take adverse employment action based on a positive drug test or
alcohol impairment test. On receipt of a positive drug test or alcohol impairment test
result that indicates a violation of the employer's written policy, on the refusal of an
employee or prospective employee to provide a drug testing sample or on the refusal of an
employee to provide an alcohol impairment testing sample, an employer may use that test
result or test refusal as a basis for disciplinary or rehabilitative actions that may
include any of the following:
1. A requirement that the employee enroll in an employer provided or employer
approved rehabilitation, treatment or counseling program, which may include additional
drug testing and alcohol impairment testing, participation in which may be a condition of
continued employment and the costs of which may or may not be covered by the employer's
health plan or policies.
2. Suspension of the employee, with or without pay, for a designated period of
time.
3. Termination of employment.
4. In the case of drug testing, refusal to hire a prospective employee.
5. Other adverse employment action.
23-493.06 Employer protection from litigation
No cause of action is or may be established for any person against an employer who
has established a policy and initiated a testing program in accordance with this article
for any of the following:
1. Actions in good faith based on the results of a positive drug test or alcohol
impairment test.
2. Failure to test for drugs or alcohol impairment or failure to test for a
specific drug or any other controlled substance.
3. Failure to test or, if tested, failure to detect any specific drug or other
substance, any medical condition or any mental, emotional or psychological disorder or
condition.
4. Termination or suspension of any substance abuse prevention or testing program
or policy.
23-493.07 Causes of action based on test results
A. No cause of action is or may be established for any person against an employer
who has established a program of drug testing or alcohol impairment testing in accordance
with this article, unless the employer's action was based on a false positive test result
and the employer knew or clearly should have known that the result was in error and
ignored the true test result because of reckless or malicious disregard for the truth or
the wilful intent to deceive or be deceived.
B. In any claim, including a claim under this article, if it is alleged that an
employer's action was based on a false positive test result:
1. There is a rebuttable presumption that the test result was valid if the employer
complied with the provisions of this article.
2. The employer is not liable for monetary damages if its reliance on a false
positive test result was reasonable and in good faith.
C. There is no employer liability for any action taken related to a false negative
drug test or alcohol impairment test.
23-493.08 Limits to causes of action
A. No cause of action for defamation of character, libel, slander or damage to
reputation is or may be established for any person against an employer who has
established a program of drug testing or alcohol impairment testing in accordance with
this article unless all of the following apply:
1. The results of that test were disclosed to a person other than the employer, an
authorized employee, agent or representative of the employer, the tested employee, the
tested prospective employee or any other person authorized or privileged by law to
receive the information.
2. The information disclosed was a false positive test result.
3. The false positive test result was disclosed negligently.
4. All elements of an action for defamation of character, libel, slander or damage
to reputation as established by law are satisfied.
B. No cause of action arises in favor of any person against an employer based on
the failure of the employer to establish a program or policy on substance abuse
prevention or to implement drug testing or alcohol impairment testing.
C. Compliance with this article by employers is voluntary and no cause of action
arises as a result of having a drug testing and alcohol impairment testing policy that is
not in compliance with this article.
23-493.09 Confidentiality of results; access to records
A. All communications received by an employer relevant to drug test or alcohol
impairment test results and received through the employer's testing program are
confidential communications and may not be used or received in evidence, obtained in
discovery or disclosed in any public or private proceeding, except in a proceeding
related to an action taken by an employer or employee under this article or except
disclosure to:
1. The tested employee or prospective employee or any other person designated in
writing by that employee or prospective employee.
2. Individuals designated by the employer to receive and evaluate test results or
hear the explanation of the employee or prospective employee.
3. An arbitrator or mediator, or a court or governmental agency as authorized by
state or federal law.
B. The tested employee has a right of access to the written test results that
pertain to that individual, subject to the maintenance of confidentiality for other
individuals.
C. Except as otherwise permitted by law, no sample taken for testing pursuant to
this article shall be tested for any substance or condition except unlawful drugs or
alcohol as defined in this article.
23-493.10 Construction; collective bargaining
Nothing in this article shall be construed to infringe on, contradict, preempt or
otherwise conflict with the valid provisions of any collective bargaining agreement or to
otherwise abridge or infringe on the rights and responsibilities of all parties in the
collective bargaining process to negotiate collective bargaining agreements. These
contract provisions are fully valid and enforceable, notwithstanding the provisions of
this article. An employer who follows the provisions of a drug testing or alcohol
impairment testing policy negotiated or bargained to impasse with the collective
bargaining representative of its employees or consistent with the terms of a collective
bargaining agreement, shall receive the full benefits of this article, even if that
policy does not conform to all of the provisions of this article.
23-493.11 Effect of mandatory testing obligations
An employer who is obligated by state or federal requirements to have a drug testing
or alcohol impairment testing policy or program shall receive the full benefits of this
article, even if that policy or program does not conform to all of the provisions of this
article, provided the employer complies with the state or federal requirements applicable
to the employer's operations.
23-493 Definitions
In this article, unless the context otherwise requires:
1. "Alcohol" means ethanol, isopropanol or methanol.
2. "Drugs" means any substance considered unlawful under the schedules of the
controlled substances section of the comprehensive drug abuse prevention and control act
of 1970 (P.L. 91-513; 84 Stat. 1247; 21 United States Code section 812) or the metabolite
of the substance.
3. "Employee" means any person in the service of an employer.
4. "Employer" means any person, firm, company, corporation, labor organization,
employment agency or joint labor-management committee, including any public utility,
transit district or special taxing district organized pursuant to title 48, chapter 17 or
22, that has one or more full-time employees employed in the same business, or in or
about the same establishment, under any contract of hire, express or implied, oral or
written. Employer does not include the United States, this state and its agencies other
than the department of public safety, the state department of corrections and the
department of juvenile corrections, any political subdivision of this state or any Native
American tribe. The department of public safety, the state department of corrections and
the department of juvenile corrections are employers for purposes of this paragraph.
5. "Good faith" means reasonable reliance on fact, or that which is held out to be
factual, without the intent to deceive or be deceived and without reckless or malicious
disregard for the truth.
6. "Prospective employee" means any person who has made application to any
employer, whether written or oral, to become an employee.
7. "Sample" means urine, blood, breath, saliva, hair or other substances from the
person being tested.
23-494 Noncompete clause prohibition; broadcast employees; definitions
A. As a condition of employment, it is unlawful for a broadcast employer to require
a current or prospective employee to agree to a noncompete clause.
B. For the purposes of this section:
1. "Broadcast employer" means an employer that is a television station, television
network, radio station or radio network.
2. "Noncompete clause" means a clause in an employment contract with a broadcast
employer that prohibits an employee from working in a specific geographic area for a
specific period of time after leaving employment with the broadcast employer.
|
|
|
|
