• an inspection may be based on "imminent danger" if an inspector learns that a condition or practice on the job site creates an "imminent danger" to the safety and health of workers;
  
  
• an inspection may occur after an employer reports a work-related accident which results in a reportable occupational injury or illness;
  
  
• an inspection may result after an employee or employee representative files a complaint with Cal-OSHA regarding an unsafe or unhealthful practice;
  
  
• a permit inspection may occur when a company is required by Cal-OSHA to obtain a permit in order to undertake some form of construction work; and
  
  
• an inspection may result from the Cal-OSHA general administrative plan that directs inspections under a variety of circumstances.

When a Cal-OSHA inspector arrives at the workplace, the employer has two options: allow the inspector access to the workplace, or ask the inspector to obtain an inspection warrant. The California Labor Code states that if any employer refuses the inspection of a workplace, or if the situation reasonably justifies the failure to seek permission, the Chief of the Division of Occupational Safety and Health, or his representative, may obtain an inspection warrant from an appropriate court. Regardless of which option an employer chooses, if a predesignated management employee is not available when the inspector arrives, the inspector should be asked to return to the workplace when that manager will be available.

When the inspector first arrives at the workplace, s/he will identify him/herself, present credentials, and conduct an opening conference. The inspector will explain the role of Cal-OSHA and will ask to conduct an inspection. If consent to inspect is flatly refused (without a reason such as the manager's absence), the inspector normally will seek to obtain an inspection warrant issued by a court.

While an employer may insist on a search warrant, whether to do so depends on the situation. Requiring a search warrant may cause the inspector to act disfavorably when he returns to the workplace with a warrant. However, requiring a search warrant will allow the employer adequate time to ensure that the workplace is prepared for an inspection and that the inspection will occur at a more reasonable time. If an unusual occurrence in the workplace results in a cleanup or rescue operation, which would impede the inspection process, the inspection normally should be refused.

Whenever an employer refuses entry to an inspector as part of the investigation of an industrial accident or occupational illness, the Chief of the Division of Occupational Safety and Health may issue an order to preserve the accident site (if preserving the site is necessary to determine the cause of the accident). A notice will be prepared by the Division to be posted in the area or on the article to be preserved. Anyone who knowingly violates an order to preserve a site issued by the Division may be fined up to $5,000.00.

Take the time now to consider under what circumstances your company would allow an immediate inspection, and when would you refuse entry. Establishing your "game plan" for an inspection ahead of time is far better than attempting to make a snap judgment when the inspector comes calling. Also, to avoid confusion and costly errors at your company, ensure that your Injury and Illness Prevention Program meets legal requirements, and is fully implemented according to its terms.

Over two years passed, and on January, 1994, Hernandez applied for a new position at Hughes. One of the letters attached to Hernandez' application was a letter from a counselor that said that Hernandez maintains his sobriety and has a strong commitment to his recovery. Hughes rejected the application.

Hernandez claimed that the refusal to rehire him violated the Americans With Disabilities Act ("ADA"). Hernandez did not claim that he was actually disabled at the time he applied to be rehired by Hughes in 1994, rather he argued that he was not rehired because of his record of disability and/or because he was regarded as being disabled.

Hughes defended the case by stating that Hernandez was not rehired because of its unwritten company policy not to rehire employees who were terminated or resigned in lieu of discharge due to their violation of the Company's code of conduct. The federal appeals court, however, decided that, although the ADA does not protect an employee or applicant who is currently using illegal drugs, it does protect qualified individuals with a drug addiction who have been successfully rehabilitated. "Thus, Hughes' unwritten policy against rehiring former employees who were terminated for any violation of its misconduct rules, although not unlawful on its face, violates the ADA as applied to former drug addicts whose only work related offense was testing positive because of their addiction. If Hernandez is, in fact, no longer using drugs and has been successfully rehabilitated, he may not be denied reemployment simply because of his past record of drug addiction."

The court concluded that Hernandez had presented sufficient evidence from which a jury could conclude that he was qualified for the position and that his application was rejected because of his record of drug addiction. (Hernandez v. Hughes Missile Systems Co., June, 2002)

Sharron Grant-Burton worked as a marketing director for Covenant Care, Inc., an owner of skilled-nursing and assisted-living facilities. Grant-Burton attended a meeting of Covenant Care’s marketing directors for Southern California. One of the seven directors brought up the subject of bonuses, asking “Hey, you guys, how is your bonus structure? How’s it set up?” Three or four of the directors said that they received bonuses based on an increase in the number of patients or an increase of growth at their facility. The other directors did not receive bonuses and were surprised to learn that some did. During the meeting, Grant-Burton said she did not receive a bonus because her supervisor “did not believe in [them].”

A few days later, Covenant Care terminated Grant-Burton’s employment. The supervisor said that the discharge was based on what Grant-Burton had said at the meeting, and also because Grant-Burton didn’t have the Company’s best interests at heart.

The court found that Grant-Burton’s termination was in violation of California public policy. The court focused on Labor Code Section 232 which provides: “no employer shall do any of the following: … discharge, formally discipline or otherwise discriminate against … an employee who discloses the amount of his or her wages.” The court explained that Grant-Burton had disclosed her “wages” when discussing bonuses because the term “wages” is defined very broadly under California law. Under California Labor Code Section 200, wages is defined to “include all amounts for labor performed by employees of every description, whether the amount is fixed or ascertained by the standard time, task, piece, commission basis or other method of calculation.”