Do any states provide legal authority for administrative agents to perform official state actions when they are &quot;not working&quot;? Context: A state OSHA compliance officer drives onto private property in an unmarked vehicle, exits their vehicle, announces "who's in charge?", then states that they are "not working"; that they just happened to be driving by, and that they decided to stop and perform an inspection. Questions: Do any states provide legal authority by statute for an OSHA compliance officer to inspect a site when they are in their own words "not working"? Can any statutes, administrative regulations, judicial decisions be cited as authority for an OSHA compliance officer to perform official state actions when they are not official on duty or assignment; "not working"? What is the test to determine if an individual is acting in their official capacity or acting in their individual capacity? Is an individual who identifies themselves as an agent of the state who in their own words is "not working" at that moment a private citizen acting as an individual and not acting in their official capacity as an agent of the state? What is the legal "bright line" for state administrative agency employment as to acting in their official capacity as an agent of the state? Do administrative agency employees act in the official capacity of an agent of the state when they are not officially on duty? When does the work day officially conclude for a state administrative worker?
Taking California as an example, California Labor Code section 6314 (a) provides: To make an investigation or inspection, the chief of the division and all qualified divisional inspectors and investigators authorized by him or her shall, upon presenting appropriate credentials to the employer, have free access to any place of employment to investigate and inspect during regular working hours, and at other reasonable times when necessary for the protection of safety and health, and within reasonable limits and in a reasonable manner. So, the only requirement is that the inspector has been authorized by the chief of the Division of Occupational Safety and Health. In principle the chief could limit this authority to those periods when the instructor has been assigned to work, but I don't see any evidence that this is the case. In particular, you can find here the policy manual on inspection procedures that inspectors are assigned to follow, and it says nothing about "only perform an inspection when you are on duty". (You might also note the discussion on page 2 about unprogrammed inspections and the criteria for performing them. One indication is "Complaint about, or observance by anyone of, an imminent hazard", which could include a hazard observed by the inspector himself.) So to your specific questions: Do any states provide legal authority by statute for an OSHA compliance officer to inspect a site when they are in their own words "not working"? Yes, California provides authority for an inspector to inspect a site "during regular working hours, and at other reasonable times when necessary for the protection of safety and health". That is the only time-related restriction in the statute. I don't think that the inspector's comment that he's "not working" has any legal significance. What is the test to determine if an individual is acting in their official capacity or acting in their individual capacity? I do not know of any reason to think that any such legal distinction exists. If Joe Smith has been authorized as an inspector by the Chief of the Division, then Joe Smith can perform inspections and is to be given free access to do so. End of story. What is the legal "bright line" for state administrative agency employment as to acting in their official capacity as an agent of the state? Based on what I said above, I think this question is meaningless.
It's the interstate commerce clause. Because of how the modern economy works. there's really pretty much nothing that's confined to a single state in its effects and doesn't affect other states. Almost any law can be justified as a regulation of interstate commerce these days, especially if that law is actually directly about commercial activity. The big case to cite here is United States v. Darby (312 US 100). This case tested a federal minimum wage law which banned shipping goods in interstate commerce where they were produced by people paid less than minimum wage, and also banned the employment of those people at less than minimum wage in that context. The Supreme Court found this law constitutional, even though the manufacturing employees weren't personally engaged in interstate commerce, because the employer was engaged in interstate commerce and regulating production was a permissible way to regulate that commerce. Now, after that decision, there was a major broadening of what was allowed to be regulated under the interstate commerce clause. In Wickard v. Filburn (317 US 111), the Supreme Court ruled that the appropriate test to see whether something could be regulated as interstate commerce was whether it had a "substantial economic effect" on interstate commerce. Under this rule, federal regulation under the commerce clause is very far-reaching. It supports extending a minimum wage to domestic service workers (Marshall v. Rose, a Fourth Circuit case from 1980); it supports extending EEOC rules to state employers (EEOC v. Wyoming); it supports a lot of things.
We need to assume that the stop was legal (not a high hurdle to clear), that is, there was some reason to stop you. Even so, following Utah v. Strieff, police don't actually have to have a reasonable suspicion to stop you and if in the course of an ID check they discover that you have a warrant out for your arrest, the arrest is still legal. So if the police stop you, RCW 46.61.020(1) says: It is unlawful for any person while operating or in charge of any vehicle to refuse when requested by a police officer to give his or her name and address and the name and address of the owner of such vehicle, or for such person to give a false name and address, and it is likewise unlawful for any such person to refuse or neglect to stop when signaled to stop by any police officer or to refuse upon demand of such police officer to produce his or her certificate of license registration of such vehicle, his or her insurance identification card, or his or her vehicle driver's license or to refuse to permit such officer to take any such license, card, or certificate for the purpose of examination thereof or to refuse to permit the examination of any equipment of such vehicle or the weighing of such vehicle or to refuse or neglect to produce the certificate of license registration of such vehicle, insurance card, or his or her vehicle driver's license when requested by any court. Any police officer shall on request produce evidence of his or her authorization as such. There is no law that says "you have to provide ID only if accused of a crime", or "police can pull you over only if you are suspected of a crime". Various traffic infractions will get you pulled over but are not crimes; random sobriety checks are legal. However, note that the requirement to provide ID applies to the operator. There is no law requiring citizens to carry identification papers (but there is a law requiring a vehicle operator to carry a specific form of ID). In some states there are "stop and identify" laws which allow police to demand ID from a person suspected of a crime, but Washington does not have such a law.
Is this legal? Yes Or does it mean that employee will be in breach of his/her contract? Yes You are assuming that if the evidence is allowed to be presented then that automatically means that keeping it for that purpose is not a breach of the contract. This is not necessarily so; it can be both at the same time. That said, it is unlikely that an employer would attempt to sanction an employee for this as the courts would (rightly) see it as an attempt to pervert the course of justice. As in most things in the law it is possible for all parties in a matter to be on the wrong side of it. If you want to come to the tribunal with "clean hands" then the best thing to do is make a record (not a copy) of the relevant documents and return then to the employer. Before going to the tribunal get your solicitor to subpoena the documents that you want - they will have to produce them and you have them without breaking your contract.
There are regulations governing occupational safety, whereby e.g. an employer can be fined for forcing employees to work in a literally toxic environment, for instance breathing chlorine gas. You could file a complaint with a state or federal agency (OSHA). You would need to hire a labor lawyer to get advice about your specific circumstance, to see if there is indeed a provision that covers what you describe, though I doubt it would. OSHA's blurb on disease don't obviously cover your situation (they describe situations that govern healthcare workers in intimate contact with infectious materials). However, certain diseases such as TB or Ebola cause a general health quarantine to be imposed, so if a worker comes in with such a disease, action would be taken by the health department. This does not cover sniffles, and probably not pertussis (but that's a local decision). There are also regulations pertaining to disabled employees, whereby an employee who is disabled by having a severely compromised immune system can be entitled to reasonable accommodation, for example allowed to work in a closed room away from others (if the job is not a receptionist job). That entitlement only applies to the employee, and is controlled by objective health danger (requires a doctor's note), and not the comfort level of the employee.
This is not legal advice, It is not even primarily a legal opinion. It is a legal position. The lawyer, acting on behalf of the agency from which you requested information, is giving the reasons why that agency is declining your request. The lawyer is presumably either an employee of the agency, or has the agency as a client. In any case, this is notice of the position that the agency would be likely to adopt if you took further legal action, such as a suit to compel disclosure. Lawyers provide such position statements ion behalf of clients or employers all the time. Such statements indicate why certain action is taken, what basis the client or employer has for taking or not taking certain action, and often indicate the nature of the defenses or theories that will be used should a lawsuit follow, although the client or employer is free to change the theory at the pleading stage. Not only is it not unethical for the lawyer to respond in this way, the agency is, I am fairly sure, required by the law to provide a valid reason when a request is declined. That is what they have done, provide a reason that they claim is valid, with some legal reasoning about why it is valid. Note that I express no view on whether the reason given is in fact valid, or would be sustained in a suit. That would be a different question.
While there are certainly statutory and procedural vehicles for sanctions, they are almost never requested or allowed when moved for, and are almost never imposed by judges. Something very severe needs to occur and not just your typical discovery violation ("speaking objections" during depositions, being late with responses, failure to cite to affidavits, affidavits citing conjecture rather than fact, et). It would have to be something quite serious....like misleading the court or directly failing to comply with a direct order or ruling on a motion. It is exceedingly rare. It is most seen in Federal Court.
I can't prove a negative, but it seems quite clear from my research that providing name and badge number is policy, not law. i.e. Many departments have a policy that their officers will provide name and badge number on request, but the punishment for failure to do so would be at the employment level not the legal level. This site has a fairly good selection of various police department policies I will note that Massachusetts appears to be an exception as mentioned by jimsug in his comment to another answer, they do require police to carry and show ID upon legal request (I did not look up what a "legal request" is)