§ 95-136. Inspections.
§ 95‑136. Inspections.
(a) In order to carryout the purposes of this Article, the Commissioner or Director, or their dulyauthorized agents, upon presenting appropriate credentials to the owner,operator, or agent in charge, are authorized:
(1) To enter withoutdelay, and at any reasonable time, any factory, plant, establishment,construction site, or other area, work place or environment where work is beingperformed by an employee of an employer; and
(2) To inspect andinvestigate during regular working hours, and at other reasonable times, andwithin reasonable limits, and in a reasonable manner, any such place ofemployment and all pertinent conditions, processes, structures, machines,apparatus, devices, equipment, and materials therein, and to question privatelyany such employer, owner, operator, agent or employee.
(3) The Commissioner orDirector, or their duly authorized agents, shall reinspect any place ofemployment where a willful serious violation was found to exist during theprevious inspection and a final Order has been entered.
(b) In making hisinspections and investigations under this Article, the Commissioner may issuesubpoenas to require the attendance and testimony of witnesses and theproduction of evidence under oath. Witnesses shall be reimbursed for all traveland other necessary expenses which shall be claimed and paid in accordance withthe prevailing travel regulations of the State. In case of a failure or refusalof any person to obey a subpoena under this section, the district judge orsuperior court judge of the county in which the inspection or investigation isconducted shall have jurisdiction upon the application of the Commissioner toissue an order requiring such person to appear and testify or produce evidenceas the case may require, and any failure to obey such order of the court may bepunished by such court as contempt thereof.
(c) Subject toregulations issued by the Commissioner a representative of the employer and anemployee authorized by the employees shall be given an opportunity to consultwith or to accompany the Commissioner, Director, or their authorized agents,during the physical inspection of any work place described under subsection (a)for the purpose of aiding such inspection. Where there is no authorizedemployee representative, the Commissioner, Director, or their authorizedagents, shall consult with a reasonable number of employees concerning mattersof health and safety in the work place.
(d) (1) Anyemployees or an employee representative of the employees who believe that aviolation of a safety or health standard exists that threatens physical harm,or that an imminent danger exists, may request an inspection by giving noticeof such violation or danger to the Commissioner or Director. Any such noticeshall be reduced to writing, shall set forth with reasonable particularity thegrounds for the notice, and shall be signed by employees or the employeerepresentatives of the employees, and a copy shall be provided the employer orhis agent no later than at the time of inspection. Upon the request of theperson giving such notice, his name and the names of individual employeesreferred to therein shall not appear in such copy of any record published,released or made available pursuant to subsection (e) of this section. If uponreceipt of such notification the Commissioner or Director determines there arereasonable grounds to believe that such violation or danger exists, theCommissioner or Director or their authorized agents shall promptly make a specialinvestigation in accordance with the provisions of this section as soon aspracticable to determine if such violation or danger exists. If theCommissioner or Director determines there are not reasonable grounds to believethat a violation or danger exists he shall notify the employees orrepresentatives of the employees, in writing, of such determination.
(2) Prior to, during andafter any inspection of a work place, any employees or representative ofemployees employed in such work place may notify the inspecting Commissioner,Director, or their agents, in writing, of any violation of this Article whichthey have reason to believe exists in such work place. The Commissioner shall,by regulation, establish procedures for informal review of any refusal by arepresentative of the Commissioner or Director to issue a citation with respectto any such alleged violation and shall furnish the employees orrepresentatives of employees requesting such review a written statement of thereason for the Commissioner's or Director's final disposition of the case.
(e) The Commissioner isauthorized to compile, analyze, and publish, in summary or detailed form, allreports or information obtained under this section. Files and other recordsrelating to investigations and enforcement proceedings pursuant to this Articleshall not be subject to inspection and examination as authorized by G.S. 132‑6while such investigations and proceedings are pending, except that, subject tothe provisions of subsection (e1) of this section, an employer cited under theprovisions of this Article is entitled to receive a copy of the officialinspection report which is the basis for citations received by the employerfollowing the issuance of citations.
(e1) Upon the writtenrequest of and at the expense of the requesting party, official inspectionreports of inspections conducted pursuant to this Article shall be availablefor release in accordance with the provisions contained in this subsection andsubsection (e) of this section. The names of witnesses or complainants, and anyinformation within statements taken from witnesses or complainants during thecourse of inspections or investigations conducted pursuant to this Article thatwould name or otherwise identify the witnesses or complainants, shall not bereleased to any employer or third party and shall be redacted from any copy ofthe official inspection report provided to the employer or third party. Witnessstatements that are in the handwriting of the witness or complainant shall,upon the request of and at the expense of the requesting party, be transcribedso that information that would not name or otherwise identify the witness maybe released. A witness or complainant may, however, sign a written releasepermitting the Commissioner to provide information specified in the release toany persons or entities designated in the release. Nothing in this sectionshall be construed to prohibit the use of the name or statement of a witness orcomplainant by the Commissioner in enforcement proceedings or hearings heldpursuant to this Article. The Commissioner shall make available to the employer10 days prior to a scheduled enforcement hearing unredacted copies of: (i) thewitness statements the Commissioner intends to use at the enforcement hearing,(ii) the statements of witnesses the Commissioner intends to call to testify,or (iii) the statements of witnesses whom the Commissioner does not intend touse that might support an employer's affirmative defense or otherwise exoneratethe employer; provided a written request for the statement or statements isreceived by the Commissioner no later than 12 days prior to the enforcementhearing. If the request for an unredacted copy of the witness statement orstatements is received less than 12 days before a hearing, the statement orstatements shall be made available as soon as practicable. The Commissioner maypermit the use of names and statements of witnesses and complainants andinformation obtained during the course of inspections or investigationsconducted pursuant to this Article by public officials in the performance oftheir public duties.
(f) (1) Inspectionsconducted under this section shall be accomplished without advance notice,subject to the exception in subdivision (2) below this subsection.
(2) The Commissioner orDirector may authorize the giving to any employer or employee advance notice ofan inspection only when the giving of such notice is essential to theeffectiveness of such inspection, and in keeping with regulations issued by theCommissioner.
(g) The Commissionershall prescribe such rules and regulations as he may deem necessary to carryout his responsibilities under this Article, including rules and regulationsdealing with the inspection of an employer's establishment. (1973, c. 295, s. 11; 1993,c. 317, ss. 1, 2; 1999‑364, ss. 1, 2; 2003‑174, s. 1.)