Context: A state OSHA compliance officer drives onto private property in an unmarked vehicle, exits their vehicle, announces "who's in charge?", then states that they are "not working"; that they just happened to be driving by, and that they decided to stop and perform an inspection.

Questions:

  • Do any states provide legal authority by statute for an OSHA compliance officer to inspect a site when they are in their own words "not working"? Can any statutes, administrative regulations, judicial decisions be cited as authority for an OSHA compliance officer to perform official state actions when they are not official on duty or assignment; "not working"?

  • What is the test to determine if an individual is acting in their official capacity or acting in their individual capacity? Is an individual who identifies themselves as an agent of the state who in their own words is "not working" at that moment a private citizen acting as an individual and not acting in their official capacity as an agent of the state?

  • What is the legal "bright line" for state administrative agency employment as to acting in their official capacity as an agent of the state? Do administrative agency employees act in the official capacity of an agent of the state when they are not officially on duty? When does the work day officially conclude for a state administrative worker?

Taking California as an example, California Labor Code section 6314 (a) provides:

To make an investigation or inspection, the chief of the division and all qualified divisional inspectors and investigators authorized by him or her shall, upon presenting appropriate credentials to the employer, have free access to any place of employment to investigate and inspect during regular working hours, and at other reasonable times when necessary for the protection of safety and health, and within reasonable limits and in a reasonable manner.

So, the only requirement is that the inspector has been authorized by the chief of the Division of Occupational Safety and Health. In principle the chief could limit this authority to those periods when the instructor has been assigned to work, but I don't see any evidence that this is the case. In particular, you can find here the policy manual on inspection procedures that inspectors are assigned to follow, and it says nothing about "only perform an inspection when you are on duty". (You might also note the discussion on page 2 about unprogrammed inspections and the criteria for performing them. One indication is "Complaint about, or observance by anyone of, an imminent hazard", which could include a hazard observed by the inspector himself.)

So to your specific questions:

Do any states provide legal authority by statute for an OSHA compliance officer to inspect a site when they are in their own words "not working"?

Yes, California provides authority for an inspector to inspect a site "during regular working hours, and at other reasonable times when necessary for the protection of safety and health". That is the only time-related restriction in the statute. I don't think that the inspector's comment that he's "not working" has any legal significance.

What is the test to determine if an individual is acting in their official capacity or acting in their individual capacity?

I do not know of any reason to think that any such legal distinction exists. If Joe Smith has been authorized as an inspector by the Chief of the Division, then Joe Smith can perform inspections and is to be given free access to do so. End of story.

What is the legal "bright line" for state administrative agency employment as to acting in their official capacity as an agent of the state?

Based on what I said above, I think this question is meaningless.

  • 1
    Your analysis of the statute appears to interpret the law as being absolute. "While conducting inspections, all compliance personnel are expected to carry out their assigned duties" Where the compliance personnel have not received any assignment to enter the property the language of the statute does not imply that an agent can assign themselves duties whenever they decide to. "Based on what I said above, I think this question is meaningless." Not from perspective here. That implies that the agent is performing their duties continuously; including when they are asleep or on vacation. – guest271314 Aug 10 at 2:31

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