March 1998

Workplace Labor Update - Court Approves Surreptitious OSHA Inspection – March 1998

3 min

In April of 1994, then Assistant Secretary of Labor for Occupational Safety and Health, Joseph Dear, looked out the window of his hotel room and observed two individuals working more than 80 feet above the ground without fall protection equipment. Assistant Secretary Dear telephoned a local compliance officer who went to the roof of Dear’s hotel and videotaped the employees working without fall protection for 50 minutes. The workers’ employer, L.R. Willson, was cited and fined $7,000 by OSHA.

The federal appeals court with jurisdiction over Maryland and Virginia recently examined the validity of this citation. L.R. Willson and Sons, Inc. v. Occupational Safety & Health Review Commission, 1998 WL 28142 (4th Cir. 1998). Challenging the citation, L.R. Willson argued that the surveillance tape should not have been admitted into evidence because of the circumstances of its taping. L.R. Willson also argued that it was inappropriately given the burden of showing that its employees’ conduct was unforeseeable or unpreventable.

First, L.R. Willson alleged that the surreptitious video-taping of the employees constituted a violation of the Fourth Amendment’s prohibition against unreasonable searches and seizures and that therefore the tape could not be used as evidence of the violation. The Fourth Circuit disagreed. Most significant to the court was the fact that the employees’ activities could be observed readily from any number of hotel windows facing the construction site. The court explained that, provided that the employees are observable from locations outside the control of the employer, there can be no reasonable expectation of privacy and thereby no Fourth Amendment violation.

Second, L.R. Willson alleged that because the Occupational Safety and Health Act requires that an OSHA inspector present his or her credentials before initiating an inspection, the failure of the OSHA inspector to present his credentials before videotaping the workers constituted a violation of the Occupational Safety and Health Act. The Company argued that the violation prevented the use of the videotape as evidence. Again, the Fourth Circuit rejected L.R. Willson’s argument. The court found that an inspector need only present his or her credentials when the inspector is physically present at the work site. Thus, an inspection could be nearly complete without an employer knowing it had even begun.

Finally, L.R. Willson argued that the Occupational Safety and Health Review Commission, the administrative body which reviews citations which are contested by the employer, improperly required that L.R. Willson demonstrate that the employees’ improper conduct was unforeseeable or unpreventable. In this case, the two employees were working without the authorization of a supervisor in an area that had not yet been opened for work. OSHA imposed liability on L.R. Willson because one of the two employees was a lead man on the job and as such had responsibility for regulations. Reversing the Commission, the appeals court found that the Secretary of Labor must prove that the conduct of the employees was foreseeable or preventable in order to prove a violation by the employer.

This decision is important for several reasons. It is helpful to employers because it prevents OSHA from automatically imposing liability upon an employer based only on the fact that a lower-level supervisory employee is aware of a violation. It forces OSHA to demonstrate that the employees’ conduct was foreseeable or preventable by the employer even when the employee has some supervisory functions. On the other hand, with this holding, OSHA is free to surreptitiously videotape employees from any location which is not company property. As a result, the important right of an employer to accompany the inspector through the worksite is diminished.