23-408

23-408. Inspection of places and practices of
employment; employee initiation of investigation; violation;
classification; injunction

A. The director of the division of occupational safety and health, or his
authorized representative, upon presentation of credentials, shall be permitted to
inspect places of employment, question employees, and investigate conditions, practices
or matters in connection with employment subject to this article at reasonable times, as
he may deem appropriate to determine whether any person has violated any provision of
this article, or any rule or regulation issued thereunder or which may aid in the
enforcement of the provisions of this article. No employer or other person shall refuse
to admit the director or his authorized representatives to any such place or refuse to
permit any such inspection if the proper credentials are presented and the inspection is
made at a reasonable time.

B. The director or his authorized representative shall inspect at least every six
months any operation which mixes rock, sand, gravel or similar materials with water and
cement or with asphalt and which is not included in the definition of mine in section
27-301. The director or his representative shall monitor and work with the mine
inspector only to the extent necessary to ensure the state's compliance with federal
occupational safety and health act standards, (P.L. 91-596).

C. Notice of an intended inspection shall not be given to an employer prior to the
time of actual entry upon the workplace, except by specific authorization by the
director.

D. A representative of the employer and a representative authorized by his
employees shall be given an opportunity to accompany the director or his authorized
representative during the physical inspection of any workplace for the purpose of aiding
such inspection. Where there is no authorized employee representative, the director or
his authorized representative shall consult a reasonable number of employees concerning
matters of safety and health in the workplace.

E. Except as provided in section 23-426, information and facts developed by the
commission, the director or any employee of the commission or division in the course of
any inspection or investigation are public records subject to inspection pursuant to
title 39, chapter 1, article 2, if, pursuant to section 23-415, subsection D, the
inspection or investigation has been closed or a citation has been issued. Such
information and facts shall not be admissible in any court or before any administrative
body except pursuant to the provisions of this article. Notwithstanding the provisions of
this subsection, the director or any commission employee is not required to appear at any
deposition, trial or hearing concerning a division inspection or investigation unless the
appearance is related to a hearing held pursuant to this article. Hearings held pursuant
to this article are open to the public.

F. An employee or a representative of employees who believes that a violation of a
safety or health standard or regulation exists that threatens physical harm or that an
imminent danger exists may request an investigation by giving notice to the director or
his authorized representative of such violation or danger. Any such notice shall be
reduced to writing, shall set forth with reasonable particularity the grounds for the
notice and shall be signed by the employees or representative of the employees. Upon the
request of the employee giving such notice, his name and the names of other employees
referred to therein shall not appear on any copy of such notice or any record published,
released or made available. If upon receipt of such notification the director determines
that there are reasonable grounds to believe that such violation or danger exists, he
shall make an investigation in accordance with the provisions of this article as soon as
practicable to determine if such violation or danger exists. If the director determines
there are no reasonable grounds to believe that a violation or danger exists, he shall
notify the employees or representative of the employees in writing of such a
determination.

G. Any person who violates any provision of this section is guilty of a class 2
misdemeanor.

H. The commission, or its authorized representative, in addition to initiating an
action under subsection F, may file in the superior court in the county where the
inspection was refused a verified complaint against an employer who violates subsection A
and request an injunction against continued refusal to permit an inspection.