A. Authority; objection:

1. (1) The department’s authorized representatives are authorized, in accordance with Section 50-9-10 NMSA 1978, to enter and inspect any place of employment at reasonable times and without delay; to question privately the employer and any employees of the employer; to inspect and investigate the place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment and materials therein, and other records which are directly related to the purpose of the inspection during regular working hours and at other reasonable times and in a reasonable manner.
2. (2) Upon a refusal to permit a compliance officer, in the exercise of official duties, to enter without delay and at reasonable times, any place of employment or portion thereof, to inspect, to review records, or to question privately any employer, owner, operator, agent or employee, in accordance with Section 50-9-10 NMSA 1978, and Paragraph (1) of Subsection A of this section, or to permit a representative of employees to accompany the compliance officer during the physical inspection of any workplace, the compliance officer shall either terminate the inspection or confine the inspection to other areas, conditions, structures, machines, apparatus, devices, equipment, materials, records or interviews concerning which no objection is raised. Nothing in this paragraph shall be construed to preclude the department from obtaining an administrative inspection order and returning to the place of employment to conduct an inspection, interview(s), or to review records as authorized by such order.
3. (3) Any permission to enter, inspect, review records or question any person shall not imply or be conditioned upon a waiver of any cause of action, citation or penalty under the state act. Compliance officers are not authorized to grant any such waiver.

B. Advance notice of inspections:

1. (1) Section 50-9-10 NMSA 1978, declares it unlawful for any person to give advance notice of any inspection to be conducted under the state act without the written approval of the secretary or his authorized representative.

2. (2) Advance notice of inspections may be given only:

   1. (a) in cases of apparent imminent danger, to enable the employer to abate the danger as quickly as possible;
   2. (b) in circumstances where the inspection can most effectively be conducted after regular business hours or where special preparations are necessary for the inspection;
   3. (c) where necessary to assure the presence of representatives of the employer and employees or the appropriate personnel needed to aid in the inspection; or
   4. (d) in other circumstances where the secretary determines that the giving of advance notice would enhance the probability of an effective and thorough inspection.
3. (3) Advance notice in any of the situations described shall not be given more than 24 hours before the inspection is scheduled to be conducted, except in unusual circumstances.
4. (4) In the situations described in this section, advance notice of inspections may be given only if authorized by the secretary, except that in cases of apparent imminent danger, advance notice may be given by the compliance officer without such authorization if the secretary is not immediately available. When advance notice is given, it shall be the employer’s responsibility promptly to notify the authorized representative of employees of the inspection, if the identity of such representatives is known to the employer.

C. Conduct of inspections; consultation with employees:

1. (1) At the beginning of an inspection, compliance officers shall present their credentials to the owner, operator, or agent in charge at the establishment; explain the nature and purpose of the inspection; and indicate generally the scope of the inspection and the records specified in Subsection A of this section which they wish to review. However, such designation of records shall not preclude access to additional records specified in Subsection A of this section.
2. (2) Compliance officers shall have authority to take environmental samples and to take or obtain photographs related to the purpose of the inspection, employ other reasonable investigative techniques, and question privately any employer, owner, operator, agent or employee of an establishment. As used in this paragraph, the term “employ other reasonable investigative techniques” includes, but is not limited to, the use of devices to measure employee exposures and the attachment of personal sampling equipment such as dosimeters, pumps, badges and other similar devices to employees in order to measure their exposures.
3. (3) In taking photographs and samples, compliance officers shall take reasonable precautions to insure that such actions with flash, spark-producing or other equipment would not be hazardous. Compliance officers shall comply with all employer safety and health rules and practices at the establishment being inspected, and shall wear and use appropriate protective clothing and equipment.
4. (4) The conduct of inspections shall be such as to preclude unreasonable disruption of the operations of the employer’s establishment.
5. (5) In addition to compliance officers' private questioning of any employee, compliance officers may consult with employees concerning matters of occupational health and safety to the extent they deem necessary for the conduct of an effective and thorough inspection. Separately, employees may request a private interview with the compliance officers to inform the compliance officers of any information relevant to the investigation and to bring any violation of the state act that the employee has reason to believe exists in the workplace to the attention of the compliance officers.

D. Representative of employers and employees; accompaniment during physical site inspection:

1. (1) Compliance officers shall be in charge of inspections and questioning of persons. A representative of the employer and a representative authorized by his employees shall be given an opportunity to accompany the compliance officer during the physical inspection of any workplace for the purpose of aiding such inspection as required by Section 50-9-10 NMSA 1978. A different employer and employee representative may accompany the compliance officer during each different phase of an inspection if this will not interfere with the conduct of the inspection.
2. (2) Compliance officers shall have authority to resolve all disputes as to who is the representative authorized by the employer and employees, for purposes of this section. If there is no authorized representative of employees or if the compliance officer is unable to determine with reasonable certainty who is such representative, he shall consult with a reasonable number of employees concerning matters of safety and health in the workplace.
3. (3) The representative authorized by employees shall be an employee of the employer. However, if in the judgement of the compliance officer, good cause has been shown why accompaniment by a third party who is not an employee of the employer (such as an industrial hygienist or a safety engineer) is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace, such third party may accompany the compliance officer during the inspection.
4. (4) Compliance officers are authorized to deny the right of accompaniment under this regulation to any person whose conduct interferes with a fair and orderly inspection.

E. Private questioning:

1. (1) Purpose: Paragraph (2) of Subsection A of Section 50-9-10 NMSA 1978 provides that the department’s representatives, including but not limited to compliance officers, are authorized to, and may, question privately the employer or any employee, subject to regulation of the environmental improvement board. The purpose of privately questioning employees is to obtain useful information regarding the health and safety of the workplace being inspected or investigated. Information being sought includes but is not limited to uncovering any violation of the state act, providing an opportunity to an employee to bring any potential violation of the state act to the bureau's attention in confidence, and to protect the employee being questioned from employer intimidation, retaliation, and discrimination. The purpose of questioning the employer is to, among other things, obtain useful information regarding the employer's health and safety policies, practices, and procedures and the employer's implementation thereof.

2. (2) General requirements:

   1. (a) an employee being questioned by the department shall have the right to have personal counsel or other representative of his or her choosing present during the department’s questioning, except that counsel employed by the employer shall be excluded from personally representing an employee because of the inherent conflict of interest at issue;
   2. (b) if the compliance officer has not already chosen to conduct the interview in private, the employee may request that the questioning be conducted in private; and
   3. (c) the results of questioning not conducted in private shall be disclosable in accordance with Subsection B of Section 50-9-21 NMSA 1978.

3. (3) Interview process:

   1. (a) in the event the compliance officer has not already determined that an interview will be conducted in private, prior to commencing an interview the compliance officer shall advise the individual to be interviewed of his or her right to a private interview; whenever the individual being interviewed expresses a preference for a private interview, the compliance officer shall honor the request; if the employee requests to have personal counsel present, the employee shall be given seven business days to secure personal counsel for the interview to be rescheduled as soon as possible;
   2. (b) at the conclusion of the department’s private questioning or a reasonable time thereafter, the department shall provide the interviewee the opportunity to read or be read, the statement given to the compliance officer; any changes in form or substance which the interviewee desires to make shall be made; the statement shall then be signed by the interviewee unless the interviewee cannot be found or refuses to sign; if the statement is not signed within seven days of its submission to the interviewee, the compliance officer shall sign it and indicate on the statement that the interviewee was absent or refused to sign the statement, together with the reason, if any, given therefor; the interviewee shall be provided with a copy of the completed statement; any statement given in private shall be treated by the department as confidential to the extent allowed by law.
4. (4) Refusal to be privately interviewed: In the event the employer or any employee refuses to consent to a private interview, the department may compel by subpoena the individual to be interviewed privately pursuant to Subsection D of Section 50-9-8, NMSA 1978 and Section 50-9-18, NMSA 1989 (1993).
5. (5) Obstruction of investigation: Employers or their representatives, agents or counsel, that obstruct or hamper an investigation violate the state act and may also be in violation of the Sarbanes-Oxley Act (18 U.S.C.A. 1514A, 1543(e)2002). Obstruction may include, but is not limited to, instructing employees to not cooperate with the department during an investigation; instructing employees to refuse to be interviewed by the department; directing employees to insist on counsel that represents the employer be present during a private interview; preventing employees directly or indirectly from being interviewed by the department; encouraging employees to lie; or suggesting to employees to withhold information or potential violations from the department.

F. Trade secrets:

1. (1) At the commencement of an inspection, the employer may identify areas in the establishment which contain or which might reveal a trade secret. If the compliance officer has no clear reason to question such identification, information obtained in such areas, including all negative and prints of photographs, and environmental samples, shall be labeled “confidential - trade secret” and shall not be disclosed except in accordance with the provisions of Section 50-9-2 NMSA 1978.

2. (2) Upon the request of an employer, any representative of employees accompanying the compliance officer during the inspection of an area containing trade secrets shall be an employee in that area or an employee authorized by the employer to enter that area. When there is no such representative or employee, the compliance officer shall consult with a reasonable number of employees who work in that area concerning matters of safety and health.

   [10/9/1975, 9/3/1978, 4/26/1981, 5/10/1981, 10/1/1983, 1/19/1994, 1/1/1996; 11.5.1.21 NMAC - Rn & A, 11 NMAC 5.1.21, 10/30/2008]