Penal Code 387: when a hidden hazard becomes a manager's personal problem

Most safety failures in California end as a citation against the company. Penal Code section 387 is the exception worth knowing, because it is written for the individual manager as well as the corporation, and it turns on one thing: what that person actually knew and did nothing about.

What the statute makes a crime

Section 387(a) applies to "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." The offense has two parts. First, the defendant has "actual knowledge of a serious concealed danger" that falls under an agency's regulatory authority. Second, the defendant knowingly fails, within 15 days of acquiring that knowledge, or immediately where there is imminent risk of great bodily harm or death, to do two things: inform the Division of Occupational Safety and Health in writing, and warn affected employees in writing.

Both duties apply. Telling the crew without telling the Division does not satisfy the section, and a quiet report to the Division without warning the people exposed does not either.

The words that decide a case

  • Manager. Under 387(b)(1), a person with management authority in the business and significant responsibility for the safety of the product or business practice. That reaches past the owner to superintendents, plant managers and operations leads who run the work.
  • Serious concealed danger. Under 387(b)(4), a danger that creates a substantial probability of death, great bodily harm or serious exposure, and that is not readily apparent to someone likely to be exposed.
  • Actual knowledge. Under 387(b)(3), information that would convince a reasonable person in the defendant's circumstances that the danger exists. It is not suspicion, but it is also not certainty.

The penalties

For an individual, the section allows up to one year in county jail, a fine up to $10,000, or both; or a term of 16 months, two or three years under Penal Code 1170(h), with a fine up to $25,000. A corporation or limited liability company can be fined up to $1,000,000. Subdivision (d) adds that an LLC manager is not personally liable "solely by reason of being a manager" of the LLC, which protects the title, not a manager who personally had the knowledge and stayed silent.

How this connects to the injury numbers

A serious concealed danger is often first visible in the injury record: the same near-miss at the same machine, the same exposure symptoms in the same department, the same first-aid visit repeating. When those events are kept off the log, recoded or talked out of being reported, the numbers look clean and the hazard stays hidden. The paperwork problem is the smaller one. The larger one is that someone with authority saw the pattern.

That is where section 387 changes the conversation inside a company. A manager who has been shown what the record means, and who has the authority to act, is the person the statute is written about.

Reporting does not hurt the reporter

Subdivision (c) is short and matters: a notification made under the section "shall not be used against any manager in any criminal case, except a prosecution for perjury or for giving a false statement." The statute is built to reward the manager who reports, not to trap one.

What a manager can do this week

  • Know who inside the company decides when a hazard is reported, and make sure that is written down.
  • Read the injury and first-aid records for repetition, not just totals.
  • When a pattern points to a danger workers cannot see, put the notice to the Division and the warning to employees in writing, and date both.
  • Keep the record of what was known and when. The 15-day clock runs from knowledge, not from a meeting.

Michael Karl McNeil, REP, RIH, EPP, QSD, is a former Fire Battalion Chief and works in environmental health and safety, industrial hygiene and workplace investigation across California and twelve more Western states.

This article is general information, not legal advice. The text of the statute controls, and a manager facing a real question under section 387 should speak with counsel.

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