Many Oregon employers may not be aware that the Oregon Bureau of Labor and Industries (BOLI) has the authority to conduct surprise, warrantless searches and inspections of employer premises and books to find violations of employment laws. While this program has been in place for many years, surprise inspections historically have not been a commonly used enforcement tool by BOLI. However, recent statements from the agency suggest a potential increased focus on surprise inspections and other enforcement actions, particularly against repeat offenders and employers previously cited for noncompliance.
BOLI’s Authority to Conduct Surprise Inspections
According to BOLI, its authority to conduct surprise inspections derives from ORS 651.120, which states that BOLI may “[e]nter any factory, mill, office, workshop, or public or private works, at any reasonable time, for the purpose of gathering facts” related to wage and hour violations, employee safety and “sanitary conditions,” and investigations into complaints of unlawful employment practices like discrimination.
The statute further provides that an “owner or occupant, or the respective agent” of the workplace “may not refuse to allow an inspector or employee of [BOLI] to enter.” Pursuant to ORS 651.990, refusal to allow entry is a Class C misdemeanor.
In addition to inspecting the premises and work conditions, BOLI inspectors may interview employees and examine on-site documents, such as personnel files and payroll records. This is in addition to BOLI’s authority to issue standard records requests and subpoenas under ORS 651.060 and OAR 839-002-0030.
BOLI may have authority to bring representatives from other federal or state agencies with them during a surprise inspection as well, further complicating the situation.
Employer Rights During a BOLI Inspection
Employers have the right to request BOLI’s authority for the inspection. This means that employers can ask to see the inspector’s warrant or other documentation that authorizes the inspection. Employers also have the right to limit the inspection to those areas and records that are relevant to the claims at issue. For example, if the inspection is related to a complaint about minimum wage violations, the inspector would not be authorized to inspect an employer’s entire workplace or look at all of an employer’s business records—the inspection would be limited to wage records for a specific time period.
Additionally, BOLI may only enter a workplace at a “reasonable time.” If BOLI inspectors show up at an employer’s workplace without notice and while sensitive or mission-critical or safety-sensitive work is being performed, an employer could take the position that the inspection is unreasonable and ask the BOLI inspector to return at a later time. However, employers are generally not allowed to refuse an inspection altogether.
How to Prepare for a BOLI Inspection
The best way to prepare for a BOLI inspection is for employers to make sure there is continual compliance with all applicable wage and hour and employment laws. Employers should also have a plan for how an inspection will be handled, such as who will be responsible for speaking with the inspector and what records will be made available.
Here are some additional tips for preparing for and navigating a BOLI inspection:
- Be polite and professional with the investigators.
- Verify the identity of the inspectors by asking for their official identification. You have the right to know who is entering your premises.
- Understand the Inspection’s Scope: Politely ask the inspectors to clarify the scope of their investigation. Understanding what they are looking for will help you provide the necessary information.
- Designate a Point Person: Assign a knowledgeable and composed staff member to accompany the inspectors and answer questions. This person should be familiar with the company’s policies and procedures.
- Document Everything: Keep a record of what the inspectors look at, what documents they request, and what questions they ask. Take notes during the inspection.
- Provide Access to Records: Be prepared to provide access to employer payroll records and any other documents related to wage and hour/employment laws while simultaneously ensuring only the actual documents within the inspection scope are provided (nothing less, nothing more). Alternatively, employers could offer to send copies of records to the inspector by mail or email within a reasonable time following the inspection.
- While it is important to cooperate with BOLI inspectors, avoid making statements that could be interpreted as an admission of any fact. Furthermore, employers should make clear that nobody is waiving the Fourth Amendment right to be free from unreasonable searches or seizures and Fifth and Sixth Amendment rights to counsel but are allowing the inspection under protest and with a reservation of these and all other rights.
If employers have any concerns, or if the situation escalates, contact an attorney immediately for advice on how to proceed, prior to allowing the inspector inside the workplace or providing records.
The legal issues impacting this topic are and will continue to be ever-changing (Employment Law in Motion!), and since publication of this blog post, new or additional information not referenced in this blog post may be available.
This article is provided for informational purposes only—it does not constitute legal advice and does not create an attorney-client relationship between the firm and the reader. Readers should consult legal counsel before taking action relating to the subject matter of this article.
