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The Department of Labor (DOL) has been asked to respond to allegations that employers are being tipped off about potential inspections by state safety agencies.
Senior Democrat lawmakers from the House Committee on Education and the Workforce, alongside Congressman Robert “Bobby” Scott and Congresswoman Dr Alma Adams, sent a letter Monday to The Honorable Julie Su, Acting Secretary of Labor US Department of Labor.
In the letter, the signatories outlined the importance of the 1970 Occupational Safety and Health Act (The OSH Act) and the importance surprise inspections play in the prevention of occupational illness and injury.
The letter includes two reported cases of employers that were allegedly informed of upcoming inspections by state safety officials before they took place.
The Occupational Safety and Health Agency (OSHA) is a DOL agency tasked with upholding standards set out in The OSH Act. But a state agency may take on the responsibility of OSHA itself, provided OSHA ratifies it has a program for enforcing standards that is “at least as effective in providing safe and healthful employment and places of employment” as OSHA’s own program.
Allegations of tip-offs before safety inspections
Two examples are given by the authors of recent reports suggesting employers in two plan states may have been given advanced notice of an inspection from a state safety officer.
The first comes from a recent hearing in California, during which multiple farmworkers (or their representatives) alleged that staff at Cal/OSHA, the state’s OSHA plan agency, give employers advanced notice of an inspection giving them time to clean up their place of work and address any possible issues.
One farmworker in Madera, California, said that she and other staff were told in August to spend hours picking up trash and cleaning bathrooms ahead of an inspection from a Cal/OSHA agent. “To me, that’s not right,” she testified. “It’s an injustice, and the reality is they tricked us.”
Debra Lee, acting chief of Cal/OSHA, said during the hearing she was “very concerned” to learn tip-offs could be taking place, and added that inspectors are trained not to give advance notice as doing so would violate the state’s labor laws.
The letter to the DOL similarly emphasized that surprise inspections are such a valuable tool for OSHA enforcement that “anyone giving impermissible advance notice of an inspection can be fined and imprisoned.”
Democrats say reported tip-offs “raise questions” for OSHA
The second example given of possible tip-offs was drawn from a New York Times report about migrant children harmed or killed while working unlawfully in the construction industry in South Carolina.
New York Times reporters heard from Itzel Sánchez, a construction boss who hires underage workers, who indicated that she receives tip-offs before visits from the state’s health and safety inspectors.
“Ms. Sánchez says helmets and harnesses are too cumbersome. If she hears inspectors are coming, the crew runs to the equipment trailers,” the report said. “She said workplace inspectors do not often come around often. They only visit certain neighborhoods, and sometimes they let you know when they’re going to show up.”
The authors of the letter highlighted their concern about the claim: “If the employer in this news account is to be believed, this story raises questions… about South Carolina’s compliance with the OSH Act’s requirements for state plan enforcement.”
South Carolina previously filed an unsuccessful lawsuit in 2023 against OSHA, attempting to stop the agency from forcing the state to increasing fines given to employers for worker safety violations.
OSHA also received a petition in 2023 from The Union of Southern Service Workers, demanding that South Carolina’s OSHA plan agency be revoked.
How might the DOL respond to the allegations?
The letter demands a response from the DOL to five questions about the possibility of credible allegations and how it would potentially respond to any state plan agencies found to have given advanced notice of inspections.
Here are the five questions in full:
If DOL became aware of credible allegations that one or more OSHA officials provided prohibited advance notice of inspections to an outside party, how would DOL address such allegations?
If a state plan agency became aware of credible allegations that one or more state officials provided prohibited advance notice of inspections to an outside party, what kinds of responses should the state plan agency take in order to remain compliant with the OSH Act’s requirement for state plans to be at least as effective as the federal program?
If officials of a state plan agency routinely provide advance notice of inspections to employers without consequence, would OSHA determine that the plan is compliant with the OSH Act?
What challenges does DOL face when attempting to monitor and enforce state plans’ compliance with the OSH Act?
Is it an appropriate use of federal funds for a state plan agency to enable an employer to evade detection for child labor trafficking or oppressive child labor violations? If the answer is no, to what extent does DOL have sufficient tools to address such an improper use of federal funds?
The letter asks for responses no later than September 20, 2024.
