What’s That Buzzing Overhead? It’s An OSHA Drone

“That buzzing noise over a construction site could be an OSHA drone searching for safety violations,” notes Littler Mendelson lawyer Tammy McCutchen in a piece for the Federalist Society. Quoting a U.S. Department of Labor memorandum from May of last year obtained by Bloomberg Law, McCutchen writes that “your friendly neighborhood OSHA inspector is now authorized by the Labor Department ‘to use camera-carrying drones as part of their inspections of outdoor workplaces.’”

What about the Fourth Amendment, you may ask? Well, court review is unlikely because current procedures call for the agency to obtain employer consent before sending the spycams aloft. Which makes everything okay, right? 

Not really. As McCutchen writes, employers who refuse such consent “risk 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.” 

So consent will often, maybe nearly always, be given despite the dangers one might imagine. Some of those dangers: “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 request?” Or, for that matter, by other law enforcement agencies seeking to build a completely unrelated legal case against the employer, employees, or perhaps even the owners or users of nearby property?

All of which points up one of the problems with trying to turn the abstractions of civil liberties into something real: before a court can act on behalf of your rights, you need to be able to say no to the government’s demand in the first place, or else there will be no dispute for the court to review. And across much of our regulatory and administrative state, that power to say no in the first place has been tending to ebb away.  [adapted from Overlawyered]