Can you refuse a state Department of Labor & Industries (L&I) representative entry onto the premises of your private business to conduct an inspection for compliance with the Washington Industrial Safety and Health Act (WISHA)?

The answer to this question is more complicated than you might think.

Current state law allows L&I to enter a construction site and conduct a WISHA inspection. According to the law, L&I may also compel a person to produce evidence and give testimony at a legal proceeding.

However, the U.S. Constitution’s 4th Amendment and the Washington State Constitution both provide safeguards against warrantless intrusions during criminal and civil investigations – in both commercial and residential contexts. The basic purpose of these laws is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.

Under the state and federal constitutions, before entering property to make an inspection, agencies must have either (1) consent of the owner to enter, or (2) a search warrant.

This presents a clear conflict – L&I says state law allows them entry without a warrant, while the U.S. and state Constitutions say otherwise.

Not surprisingly, this issue has landed in court. The state law allowing L&I warrantless entry is under challenge in federal court and will likely be invalidated as unconstitutional based on a past U.S. Supreme Court decision.

Some employers have taken matters into their own hands and refused entry by an L&I representative without a warrant. Thus far, L&I has always agreed to return with a warrant.

If you choose to deny entry and L&I threatens to seek a warrant, you should ask for an opportunity to have legal counsel present at the warrant hearing. Unless there is some emergency, L&I should give you the date, time and place when they will ask a judge to sign a warrant. You have the right to explain to a judge that a warrant should not be issued in order to protect your constitutional right from unreasonable searches.

If a warrant is issued, read it closely. Every warrant will specify the areas to be searched, and the inspection should be limited solely to those areas listed on the warrant. The time and duration of the search must be reasonable.

Regardless of whether the L&I representative has a warrant, all visits by L&I representatives should be documented. Be sure to get their business card and record the purpose of the visit, time and date, and length of stay. If the inspection was prompted by an employee complaint, the L&I representative must provide a copy of the complaint for your inspection.