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Is OSHA Watching From Afar? Secretary of Labor vs. Hi-Tech Builders Inc., OSHRC Docket No. 97-1976 Occupational Safety and Health Review Commission Dec. 8, 1999

Date: Apr 01, 2000


In the January issue of Compliance Magazine, weexamined OSHA's ability to obtain a search warrant and the criteria OSHA must satisfy when obtaining a warrant. However, what if OSHA does not get a warrant but observes the violations by surveillance? In the case Secretary of Labor vs. Hi-Tech Builders Inc., (Hi-Tech), an OSHA compliance officer obtained evidence in support of a citation by videotaping an employer's worksite from a nearby parking lot. An administrative law judge (ALJ) of the Occupational Safety and Health Review Commission (OSHRC) upheld the citations, stating that the compliance officer did not need to obtain a search warrant or follow normal inspection procedures outlined in the Occupational Safety and Health (OSH) Act before videotaping an employer's private worksite from a public parking lot. This decision, which is probably congruent with the Fourth Amendment, is contrary to stated congressional intent and should be overturned. OSHA inspections are notcriminal investigations, but administrative enforcement proceedings, and Congress did not contemplate that OSHA inspectors would seek to use criminal investigation procedures to entrap ordinary citizens solely to issue citations, A better approach would be when OSHA observes errant behavior that puts employees at risk, the agency takes steps immediately to protect the employees and conduct its inspection following normal procedures. This case and the earlier case of L.R. WillsonAnd Sons Inc. vs.Occupational Safety and Health Review Commission (Willson), suggest that some compliance officers are more interested in issuing citations and penalties than protecting employees in truly hazardous situations.

Background

Under current OSHA law, in the absence of an employer'sconsent, OSHA may inspect an employer's private worksite only if certain importantprocedures are followed. First, in 1978 the Barlow's case established that, if the owner or employer refuses entry to the government, the Fourth Amendment of the U.S. Constitution requires the government to obtain a search warrant, based on probable cause, from a magistrate prior to entering private property toconduct an OSHA inspection. Second, and equally important, the OSH Act of 1970, in section 8(a), provides that a compliance officer must first present the appropriate credentials to the employer prior to entering and inspecting a worksite. Third, underSection 8(e) of the OSH Act, an employer has the right to accompany the OSHA inspector on his physical inspection of the workplace. In Hi-Tech's case, neither procedure was followed.

The Fourth Amendment and OSH Act Sections 8(a) and 8(c) represent important protections of the civil rights of all private individuals against unreasonable intrusions by government officials into private lives. Under the Fourth Amendment, the government must have a reasonable belief that a violation of lawhas occurred to enter private property. If consent is refused, or in the course of aninspection, withdrawn, OSHA is required to petition a magistrate for a warrant and, inbalancing two important competing concerns, must examine both the requests for warrants and independently conclude that probable cause for the inspection exists. When an OSHA inspector observes the employer from a distance before beginning the inspection, the evidence obtained may reasonably be used to support a petition for a warrant, but until the inspector presents credentials, the observations made are less than reliable, because the employees observed may not be employees of the employer in question, or may be behaving improperly under the company'srules and procedures. In Hi-Tech and Willson, the OSHRC failed to balance these considerations properly.

The Case

On Jan. 24, 1997, an OSHA compliance officer was driving on a public roadway past aconstruction site adjacent to the local airport. The compliance officer claimed he noticed some workers engaging in activity that he claimed violated OSHA's fall protection standards. The compliance officer returned later that day the following day and three days later. He parked his car in a public parking lot and,from his car, using a telephoto lens capable of magnifying images by 30 times, videotaped the activity at the employer's private worksite during the course of four days. Only after furtively filming the employer's private worksite for four days did the compliance officer approach the entrance to the worksite, identify himself and request permission to inspect the construction site. Upon inspecting the worksite, the compliance officer promptly issued citations for violating OSHA's fall protection standard.

The employer, Hi-Tech Builders Inc., contested these citations. HiTech Builders argued that, under Section 8(a) of the OSH Act, an OSHA inspector must first present the appropriate credentials prior to entering and inspecting private worksites. Usinga high-powered telescopic lens, OSHA conducted a clandestine inspection of the worksite for four days prior to presenting its credentials. Hi-Tech Builders further argued that OSHA7s video-camera inspection of its workplace for four daysdeprived Hi-Tech Builders of its right to accompany the inspector during his inspection of the workplace under OSH Act Section 8(e).

The Decision

The ALJ rejected these arguments and held that the compliance officer did not violate Section 8(a) of the OSH Act. The OSHRC reasoned that the compliance officer was positioned in a parking lot that the public has access to, and thus any, violations that he could observe from that parking lot were observable to the public. The ALJ reasoned the employer did not have a reasonable expectation of privacy for any activity that was visible from a public parking lot nearby.

In considering Hi-Tech's argument, the ALJ referred to the Willson case heard by the U.S. Court of Appeals for the 4th Circuit. In this case, an OSHA compliance officer, called by then Assistant Secretary Joseph Dear who observed from his hotel in Orlando employees working on a construction project across the street without fall protection, climbed to the roof of the hotel, and using a high-poweredtelescopic video camera, proceeded to videotape the workers on the project forapproximately 50 minutes before proceeding to the site to conduct the inspection. Tellingly, in both cases, the court did not seem disturbed that the inspectors allowed the violations to continue for an extended period of time before intervening. In this case, the situation is even more egregious, because the surveillance went on for more than three days before the inspection was initiated.

In Willson, the employer challenged the citations on two grounds. First, like Hi-Tech Builders, the employer argued that the video camera surveillance violated Section 8(a) of the OSH Act, which requires an inspector to present the employer with the proper credentials prior to entering and inspecting a private worksite. Second, the employer argued that the video camera inspection violated the Fourth Amendment of the U.S. Constitution, which requires the inspector to first obtain a search warrant prior to commencing an inspection of private property. Nevertheless, the 4th Circuit upheld the citations that arose from OSHA's rooftop surveillance on the grounds that the violations, which the compliance officer witnessed, were open and observable to anyone in a public area and that there was no expectation of privacy

Conclusions

These cases illustrate a long-standing principle of Fourth Amendment law: The government can use evidence of wrongdoing that is in "plain view." However, though the 4th Circuit and the OSHRC both relied on that doctrine, the provisions of Section 8(a) and (e) suggest that Congress did not authorize OSHA with plenary power to inspect under any and all circumstances. In fact, Congress limitedthe inspection authority in significant ways. Advanced surveillance technology increasingly will become accessible and whether, in this age ofconcern about privacy, such surreptitious tactics should be used in an administrativeenforcement scheme is a legitimate question that the courts and OSHRC should revisit.

This article appears in Compliance Magazine (April 2000) and itis reprinted with permission of Compliance Magazine. Copyright © 2000 by IHSPublishing Group. All rights reserved.

For further information about this article, please contact David G. Sarvadi at 202-434-4249 or by e-mail at sarvadi@khlaw.com or Manesh K. Rath at 202-434-44182 or by e-mail at rath@khlaw.com.