Masonry Magazine January 1979 Page. 32
OSHA continued from page 31
THIRD, in the vast majority of refusal cases, OSHA will in all likelihood be able to enter the worksite sometime in the future. In this regard it is reasonable to believe that, as a function of simple human nature, an inspector who has been denied entry and who has then gone to the trouble of obtaining a warrant-regardless of how objective he tries to be may conduct a more detailed investigation and may be far less receptive to the employer's arguments than might otherwise be the case.
Of course, there are varying degrees of refusal by virtue of the employer's ability to consent to a limited warrantless inspection. Such a limited consent might mitigate some of the above considerations, but the fact remains that the continued vitality of Barlow's and any hopes of a favorable extension of its holding into other areas may be inextricably tied to the judicious exercise by employers of their Fourth Amendment rights.
Ask the Inspector Why He Wishes to Inspect
If, despite careful advance planning, there are lingering doubts in an employer's mind as to whether or not entry without a warrant should be denied, ask the compliance officer why he wishes to inspect. He should not be reluctant to explain, and his answers may well give a clue as to whether he has sufficient cause to obtain a warrant if one is demanded. If at all possible, seek counsel's advice before making the final decision.
At the same time, however, employers should be very careful in making comments to the OSHA inspector upon his arrival. In a recent case, the employer's comments to the inspector just prior to his refusal of entry were successfully used by the Department of Labor as corroborative evidence in obtaining a warrant.
Clarify Members of Staff with Authority to Consent to an Inspection
There should be no mistake or confusion among an employer's employees contingent with respect to who has the authority to consent to an inspection. OSHA's understanding of who has the legal capacity to consent on the employer's behalf may not be consistent with the employer's understanding. The employer should be aware of this and issue instructions accordingly.
If a Warrant Is Presented, Read it Carefully
Should an employer be presented with a warrant, either because the employer has demanded it or because OSHA obtained it prior to an inspection attempt, the warrant should be carefully examined to see that there are no legal defects on its face, and to be sure that everyone is clear as to its scope. Absent the applicability of an exception to the warrant requirement, the inspector may not exceed the scope of the warrant.
Be Aware of the Consequences of a Refusal
The principal consequences of a refusal of entry will, in most cases, be an attempt by OSHA to obtain a warrant. However, the consequences of continued refusal even though a warrant is presented may be severe indeed. The risk run by the employer is that he will be held in contempt of court. There are a number of penalties available for contempt including monetary penalties and possible imprisonment in particularly egregious cases. An employer cannot necessarily count on being given a specific period of time within which to "purge" itself of contempt as the only sanction for being found in contempt. This, too, will vary with the circumstances.
A LOT OF
SCAFFOLDING
FOR YOUR
MONEY
For the complete Deal
Line of scaffolding and
accessories Call Toll Free
(800)523-9468; In Pa. Call
Collect (215)258-6244.
Request
Catalog 176
Or, write.
DEAL
DEAL PRODUCTS, INC
27th & Dearborn Streets,
P.O.Box 667, Easton, Pa. 18042
32 MASONRY/JANUARY, 1979
GOLDBLATT tool co.
GOLDBLATT
GOLDBLم
GOLDBU
GOLDBL
GOLDBL
1979
GOLDRI
GOL
GOBLATT
GOLDE
GOLDBLATT
FREE!
Catalog
Goldblatt Tool Co., now in our 94th year, is proud to present our newest full-line catalog! Send for your FREE 1979 catalog of over 1800 products, including 75 new items, for the trowel trades industry. Goldblatt offers you 94 years of the highest quality tools and dependable service. Send for your up-to-date catalog today.
FILL OUT COUPON AND MAIL TO:
GOLDBLATT TOOL CO.
542-A OSAGE, KANSAS CITY, KANSAS 66110
Name
Address
State
Zip
City
Phone
A BLISS & LAUGHLIN INDUSTRY