As employers across California navigate an increasingly complex regulatory landscape, one issue keeps surfacing in California Division of Occupational Safety and Health (Cal/OSHA) enforcement actions: what happens when the division cites a company that no longer exists?

• Cal/OSHA bears the burden of proving it cited the correct employer entity, and citations may be dismissed entirely if it cannot independently establish that the named entity is the proper one.
• Successor liability in the workplace safety context turns on whether a new entity has “substantial continuity” with the predecessor’s operations, considering factors such as acquisition of assets, retention of the same workforce, and uninterrupted use of the same facilities and equipment.
• A corporation is a legally distinct person from its shareholders, and even where an individual’s name overlaps with a corporate employer’s name, Cal/OSHA must cite the correct legal entity or risk having the citation reversed on appeal.

The answer lies in the doctrine of “successor liability” and it is not as clear as one might think.

When Cal/OSHA issues a citation, one of the most fundamental requirements is that it names the correct employer. Getting it wrong can mean the difference between a valid citation and a complete dismissal.

What Is Successor Liability in the Workplace Safety Context?

The test for successor liability turns on whether the new entity has “a substantial continuity” with the operations of the predecessor,...

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