State-specific OSHA guidelines: California

Employers should take note of an important decision issued recently by the Division of Occupational Safety & Health (DOSH, Division, or Cal/OSHA) Appeals Board.

In Sunview Vineyards, the Board elucidated a standard for employers to gain access to written complaints made to DOSH. The employer filed a motion to compel a copy of the complaint to assess whether DOSH had issued citations within the six-month statute of limitations. DOSH had resisted the employer's demand on the basis of California Labor Code Section 6309, which provides that "[t]he name of a person who submits to the division a complaint regarding the unsafe condition of an employment or place of employment shall be kept confidential by the division, unless that person requests otherwise." Cal/OSHA regulations have similar restrictions.

The Division's argument is no doubt familiar to California employers who have had a DOSH compliance officer appear unannounced at their facilities. To give meaningful consent to an inspection (which is an administrative "search" within the meaning of the Fourth Amendment), an employer may wish to limit the inspection to the scope of the complaint. The compliance officers routinely decline employer requests to see the written complaint or to better understand the scope of the complaint because, in the Division's view, revealing the complaint or its scope will tend to reveal the identity of the employee in violation of the law. Of course, this puts employers in an untenable position of either allowing an expansive inspection or insisting that the Division obtain a warrant to search the premises, which inevitably escalates tensions with the agency.

The Appeals Board in Sunview Vineyards considered the various statutory and policy arguments and concluded that the "Employer is entitled copy of the written record of the complaint to the extent, and only to the extent, that it (1) may be redacted to protect the name of the person who submitted the complaint, and (2) redacted to prevent disclosure of anything that would reveal, or tend to reveal, the identity of the person who submitted the complaint through that person's distinguishing or recognizable characteristics." The Board emphasized its "narrow holding" and that a case-by-case determination must be made in light of the overarching importance of protecting the identity of a complainant (so as not to dissuade employees from reporting health and safety concerns).