According to a May 18, 2018, Department of Labor Memorandum (obtained by Bloomberg Law via a Freedom of Information Act Request), OSHA has been authorized to begin using “camera-carrying drones as part of their inspections of outdoor workplaces.” Use is intended to be limited to areas that are otherwise difficult and dangerous for OSHA inspectors to access.
Current protocols require employer consent prior to OSHA’s use of a drone. Yet, do you want to be the employer who says no? As pointed out by Tammy McCutchen (writing for The Federalist Society, c/o Walter Olson’s Overlawyered), denying an OSHA investigatory request is the quickest way to become an OSHA target as an uncooperative (and presumptively unsafe) employer:
Employers who refuse such consent – who exercise their Fourth Amendment right and require DOL to obtain a search warrant – risk the ire of the DOL, with serious consequences. Nothing is more likely to put a target on an employer’s back for multiple and frequent future investigations than sending a DOL investigator away from your doors. Refusing consent will label you at the DOL as a bad faith employer that deserves closer scrutiny.
Which is not to suggest that these robotic investigations are not without risk. Anything in plain sight is fair game in an OSHA investigation. Once you give OSHA permission to fly its drone, any violations it spies will be cited.
Moreover, the memo contains several key omissions. It offers no protections for an employer’s trade secrets, or other proprietary or confidential information. It says nothing about employees’ privacy. It does not detail how videos will be stored, for how long, and who will have access. It does not exempt the videos from a FOIA request made by a competitor or labor union.
In all but the most extreme of circumstances, I always advise employers to cooperate with DOL investigators, provide requested documents, and allow on-site investigations. Yet, when OSHA comes knocking and requests that it fly a drone as part of its investigation, you will need to call your employment counsel, collectively weigh the pluses of avoiding OSHA’s ire (and a search warrant) versus the minuses of OSHA’s lack of protections, and decide whether to permit the remote recording.