Alex Acosta’s Labor Department has authorized OSHA inspectors “to use camera-carrying drones as part of their inspections of outdoor workplaces.” So reports Bloomberg Law, linking to a May 18, 2018 DOL memorandum obtained through a Freedom of Information Act request.
The memorandum requires inspectors to “obtain express consent from the employer” before using a drone, thus likely avoiding a Fourth Amendment problem. However, as prominent labor lawyer and former DOL official Tammy McCutchen explains, anyone who practices before the DOL understands that employers who refuse such consent – who exercise their Fourth Amendment right and require DOL to obtain a search warrant – risks 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. This I know through experience practicing before DOL and as a former Administrator of DOL’s Wage & Hour Division.
Even so, one labor lawyer told Bloomberg that “employers should be wary of giving OSHA inspectors blanket permission to fly remote-controlled aircraft above worksites.” McCutchen agrees:
Video recorded by a drone will show much more than potential safety violations. The drones could record trade secrets or employees doing things they shouldn’t. But, the memo contains not a single word on protecting the privacy of employers or employees caught on video.
How long will OSHA retain the video? Who will have access to the video? Will the videos be obtainable by competitors or unions through a FOIA requests? Will employees be allowed to deny their consent to be videoed? Will employers be allowed to view the video and discipline employees based on what they see? The unanswered questions seem endless.
In the absence of satisfactory answers to these questions, Secretary Acosta should withdraw his stealth memorandum.