Section 387 - Knowledge of concealed danger(a) Any corporation, limited liability company, or person who is a manager with respect to a product, facility, equipment, process, place of employment, or business practice, is guilty of a public offense punishable by imprisonment in the county jail for a term not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both that fine and imprisonment; or by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months, two, or three years, or by a fine not exceeding twenty-five thousand dollars ($25,000); or by both that fine and imprisonment, but if the defendant is a corporation or a limited liability company the fine shall not exceed one million dollars ($1,000,000), if that corporation, limited liability company, or person does all of the following: (1) Has actual knowledge of a serious concealed danger that is subject to the regulatory authority of an appropriate agency and is associated with that product or a component of that product or business practice.(2) Knowingly fails during the period ending 15 days after the actual knowledge is acquired, or if there is imminent risk of great bodily harm or death, immediately, to do both of the following: (A) Inform the Division of Occupational Safety and Health in the Department of Industrial Relations in writing, unless the corporation, limited liability company, or manager has actual knowledge that the division has been so informed. Where the concealed danger reported pursuant to this paragraph is subject to the regulatory authority of an agency other than the Division of Occupational Safety and Health in the Department of Industrial Relations, it shall be the responsibility of the Division of Occupational Safety and Health in the Department of Industrial Relations, within 24 hours of receipt of the information, to telephonically notify the appropriate government agency of the hazard, and promptly forward any written notification received.
(B) Warn its affected employees in writing, unless the corporation, limited liability company, or manager has actual knowledge that the employees have been so warned. The requirement for disclosure is not applicable if the hazard is abated within the time prescribed for reporting, unless the appropriate regulatory agency nonetheless requires disclosure by regulation.
Where the Division of Occupational Safety and Health in the Department of Industrial Relations was not notified, but the corporation, limited liability company, or manager reasonably and in good faith believed that they were complying with the notification requirements of this section by notifying another government agency, as listed in paragraph (8) of subdivision (d), no penalties shall apply.
(b) As used in this section: (1) "Manager" means a person having both of the following:(A) Management authority in or as a business entity.(B) Significant responsibility for any aspect of a business that includes actual authority for the safety of a product or business practice or for the conduct of research or testing in connection with a product or business practice.(2) "Product" means an article of trade or commerce or other item of merchandise that is a tangible or an intangible good, and includes services.(3) "Actual knowledge," used with respect to a serious concealed danger, means has information that would convince a reasonable person in the circumstances in which the manager is situated that the serious concealed danger exists.(4) "Serious concealed danger," used with respect to a product or business practice, means that the normal or reasonably foreseeable use of, or the exposure of an individual to, the product or business practice creates a substantial probability of death, great bodily harm, or serious exposure to an individual, and the danger is not readily apparent to an individual who is likely to be exposed.(5) "Great bodily harm" means a significant or substantial physical injury.(6) "Serious exposure" means any exposure to a hazardous substance, when the exposure occurs as a result of an incident or exposure over time and to a degree or in an amount sufficient to create a substantial probability that death or great bodily harm in the future would result from the exposure.(7) "Warn its affected employees" means give sufficient description of the serious concealed danger to all individuals working for or in the business entity who are likely to be subject to the serious concealed danger in the course of that work to make those individuals aware of that danger.(8) "Appropriate government agency" means an agency on the following list that has regulatory authority with respect to the product or business practice and serious concealed dangers of the sort discovered:(A) The Division of Occupational Safety and Health in the Department of Industrial Relations.(B) State Department of Health Services.(C) Department of Agriculture.(D) County departments of health.(E) The United States Food and Drug Administration.(F) The United States Environmental Protection Agency.(G) The National Highway Traffic Safety Administration.(H) The Federal Occupation Safety and Health Administration.(I) The Nuclear Regulatory Commission.(J) The Consumer Product Safety Commission.(K) The Federal Aviation Administration.(L) The Federal Mine Safety and Health Review Commission.(c) Notification received pursuant to this section shall not be used against any manager in any criminal case, except a prosecution for perjury or for giving a false statement.(d) No person who is a manager of a limited liability company shall be personally liable for acts or omissions for which the limited liability company is liable under subdivision (a) solely by reason of being a manager of the limited liability company. A person who is a manager of a limited liability company may be held liable under subdivision (a) if that person is also a "manager" within the meaning of paragraph (1) of subdivision (b).Amended by Stats 2011 ch 39 (AB 117),s 68, eff. 6/30/2011.Amended by Stats 2011 ch 15 (AB 109),s 343, eff. 4/4/2011, but operative no earlier than October 1, 2011, and only upon creation of a community corrections grant program to assist in implementing this act and upon an appropriation to fund the grant program.