State safety inspectors told to get owners' permission before entering property

The Olympian


YAKIMA, WA-- State safety inspectors must now "be polite" and make a point of asking an employer's permission before entering a work site.
In a little-noticed directive published last summer, the state's chief of workplace safety told inspectors to explicitly ask for and confirm consent before proceeding onto private property to look for safety violations or interview workers.

"The inspector will ask for consent to continue the inspection (by asking, for example, 'may we continue?')," the new policy states.

Previously, inspectors could flash their identification and enter the property without explicitly asking for permission, a practice the Washington Farm Bureau called illegal.

For example, Jerry Olson, a Wapato fruit grower, found out on his voice mail one day last December that state safety inspectors had earlier entered his orchards to conduct an inspection.

"The inspector did not contact me prior to entering my property and conducting the inspection; I thus did not consent to the inspection," Olson testified in court.

L&I called that "tacit" consent. Employers called it deception.

L&I's policy change to require an employer's permission is about more than courtesy. It's about a high-stakes legal battle over the state's right to enter workplaces, especially farms where often there is no official front desk or office at which to stop.

Early next year, a U.S. District Court judge in Seattle will hear arguments on the constitutionality of the 1974 state law that gives the Department of Labor and Industries inspection powers.

The Farm Bureau has said the state law is nearly identical to a federal law the U.S. Supreme Court struck down in 1978 as unconstitutional. In that case, the court ruled the federal Occupational Safety and Health Administration could no longer inspect business workplaces without a search warrant.

L&I officials said the state law is nothing like the old federal law.

In any case, the issue is not whether the state has a right to make unannounced inspections without prior notice; it does. In fact, prior notice is prohibited by law.

Rather, it's about what the state can do if an employer refuses to let an inspector on the property. In the past, inspectors frequently threatened employers by saying they could easily get a warrant, according to the Farm Bureau.

The Farm Bureau argues that L&I, by changing its policy in the middle of a lawsuit, has conceded the law is of questionable constitutionality. The Farm Bureau believes it violates the Fourth Amendment, which protects citizens from unlawful searches and seizures.

"They are in big trouble, and they know it," said Dan Fazio, the Farm Bureau's labor lawyer.

Michael Wood, senior program manager for Washington Industrial Safety and Health Act services at L&I, objects to the Farm Bureau's characterization of the policy change.

"This is, in no way, a concession that what we have traditionally done is illegal. We have always relied on tacit consent," Wood said.

But Fazio said "tacit consent" has no legal meaning. "What does that mean? If a cop grabs you, is that tacit consent?"

Wood said the change was the result of an internal evaluation.

"We sat down and evaluated the way we were doing things. Although we decided that what we were doing was legal, we decided it wouldn't interfere with our ability to conduct an inspection to take an extra step and be more explicit in asking for consent and going beyond the law.

"It's an attempt to foster a more constructive initial interaction. It's a polite request."


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