Is Cal-OSHA Violating Employees’ Constitutional Rights?

March 10, 2010
All professional staff inside the California Division of Occupational Safety and Health have been directed by Len Welsh, chief of the Division of Occupational Safety and Health of the state’s Department of Industrial Relations (DIR), to report any outside “teaching, presentations and training” performed while working for Cal-OSHA.

If these activities, which include uncompensated volunteer work, are not disclosed, the employee faces disciplinary action. In a March 1 memo, Frank Dickey, senior special investigator for the legal unit of the office DIR Director John Duncan, warned employees to be “overly inclusive” with what they provide to investigators, adding “do not make any assumptions about the scope of the information we require.”

According to Public Employees for Environmental Responsibility (PEER), employees are being explicitly advised that the inquiry covers religious, political or union organizing activities and even military reserve training. Employees are expected to complete a questionnaire about their off-site activities – even ones that have nothing to do with Cal-OSHA – and provide Dickey with “any and all documents as well as electronic information related to your teaching, training or presentation activities. You are directed to preserve and not to destroy or alter any documents or other information kept in any form concerning these activities.”

According to Dickey, this electronic information includes “emails, voicemail messages, cell phone and PDA chips, portable electronic storage devices and all types of information that is commonly created, stored and transferred by computer or electronically.” This includes, he added, “any electronic information you may have created on home computers and other personal electronic devices.”

PEER contends that the inquiry violates workers’ constitutionally guaranteed right to privacy. In addition, the California Labor Code, which DIR is supposed to enforce, provides that all workers, including state employees, shall not be intimidated or held to answer for political affiliations or activities. Similarly, union activities also would be included in what workers now must report in detail, together with all relevant documents, to DIR management.

“In California, all workers enjoy a constitutional right to privacy which means that a government agency has no business probing your personal life,” said PEER Executive Director Jeff Ruch. “This thoroughly wrongheaded and illegal probe should end immediately and the minds behind it should have their heads examined.”

A Feb. 24 all-staff memo claims the investigation was prompted by a state audit that found a former Cal-OSHA employee who “taught and delivered presentations concerning occupational safety and health for pay and other compensation while working for the division as a full-time employee.”

Although that employee resigned after he was caught, DIR Director Duncan decided to “broaden” the inquiry.

“California is supposed to be broke but this department somehow has the money and time for this nonsense,” said Ruch, who sent Duncan a protest letter. “Heaven help us if this exemplifies the philosophy the Department of Industrial Relations brings to workplaces in the Golden State.”

PEER argues that this overly broad inquiry serves no useful purpose, as agency employees already must file conflict of interest forms disclosing any source of income related to official duties. Moreover, DIR may not take disciplinary action against employees for events that occurred more than 3 years ago. The DIR audit goes back to the start of employment, a period as long as decades ago for senior workers.

When asked to comment, a DIR public relations officer told EHS Today, “We have an internal audit ongoing. We’re not able to discuss this.”

A call to federal OSHA for comment was not returned.

About the Author

Sandy Smith

Sandy Smith is the former content director of EHS Today, and is currently the EHSQ content & community lead at Intelex Technologies Inc. She has written about occupational safety and health and environmental issues since 1990.

About the Author

Laura Walter

Laura Walter was formerly senior editor of EHS Today. She is a subject matter expert in EHS compliance and government issues and has covered a variety of topics relating to occupational safety and health. Her writing has earned awards from the American Society of Business Publication Editors (ASBPE), the Trade Association Business Publications International (TABPI) and APEX Awards for Publication Excellence. Her debut novel, Body of Stars (Dutton) was published in 2021.

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