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Employers Consent to Cal/OSHA Inspection Deemed Voluntary Despite a Cavalcade of California Officials Descending on the Workplace

Recently, the California Court of Appeal reviewed an appeal regarding citations issued against a sheet metal company, Nolte Sheet Metal in Nolte Sheet Metal, Inc. v. Occupational Safety and Health Appeals Board.

One of the issues presented was whether Nolte freely and voluntarily consented to a Cal/OSHA inspection. Under the California Labor Code, Cal/OSHA is permitted to investigate and inspect any workplace after presenting appropriate credentials to the employer. If an employer refuses inspection, Cal/OSHA may seek to obtain a search warrant.

This matter began when a Cal/OSHA safety and compliance engineer came to Nolte to conduct an inspection with an entourage of California administrative representatives in tow. The Cal/OSHA representative was accompanied by representatives from the Contractors’ State License Board, the Employment Development Department, the Department of Labor Standards Enforcement, and the California Department of Insurance. According to the testimony, the California Department of Insurance representatives carried handguns and wore bulletproof vests.

The owner of the Company’s son faced with the barrage of officials testified that while he allowed the inspection to occur, based upon the circumstances, he did not believe he could refuse.

However, the Court of Appeal agreed with the administrative decision which found that the Cal/OSHA inspector asked for permission to conduct the inspection. And though the owner’s son testified he was intimidated by the presence of armed officials this alone was not enough to show a lack of proper consent.

While employers may deny entry, Cal/OSHA may seek to obtain a search warrant.  There may be instances where it is appropriate to deny entry, instead of consenting to inspection.  Generally, however, Cal/OSHA will have administrative probable cause to obtain a warrant which could trigger a more in-depth investigation and more serious citations. Employers may attempt to limit the scope of the inspection and should accompany the inspector while the inspection is conducted.

Contact a Jackson Lewis attorney if you have questions about how to handle a Cal/OSHA inspection or how to ensure your worksite will pass an inspection.

Jackson Lewis P.C. © 2020

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About this Author

Tressi Cordaro, Occupational safety health attorney, Jackson Lewis, enforcement agency lawyer, labor litigation legal counsel
Principal

Tressi L. Cordaro is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. She advises and represents employers on occupational safety and health matters before federal and state OSHA enforcement agencies.

Ms. Cordaro has advised employers faced with willful and serious citations as the result of catastrophic events and fatalities, including citations involving multi-million dollar penalties. Ms. Cordaro’s approach to representing an employer cited by OSHA is to seek an efficient resolution of contested...

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