Employer's Fourth Amendment Violation Claims Against OSHA Dismissed

June 23, 2003 (PLANSPONSOR.com) - An employer's argument that an inspection of its jobsite was a nonconsensual inspection in violation of the Fourth Amendment was rejected.

>Lacerte Builders, Inc. contended its Fourth Amendment rights were violated when Occupational Safety & Health Administration (OSHA) inspectors entered a site adjacent to their construction site with consent and subsequently issued violations to the company.   However, it was determined that no Fourth Amendment violation occurred because consent was given to enter the adjacent property by an employee that worked for that property, and consent to enter the construction site was given by the construction site’s project superintendent, according to a Commerce Clearing House report.

>Also rejected was Lacerte’s argument that the employees at the worksite were not company employees and that the employer was not responsible for the violative conditions. Under the multi-employer doctrine, the employer controlled the worksite safety hazards at issue, and is responsible, as the controlling employer, for the violative conditions even though the employees threatened by the hazards are those of a subcontractor, according to the report.

>Therefore, violations issued by OSHA were affirmed for:

  • failure to prohibit employees from sitting or climbing on the edge of a basket
  • failure to wear a body belt and a lanyard attached to the boom or basket
  • failure to protect an employee working on a walking/working surface with an unprotected side or edge that is six feet above a lover level with fall protection.