On-Site Consultative Inspections

A. Upon an employer’s request, the department shall provide an on-site consultation inspection of conditions and practices of the employer’s work place. B. Requests by employers for on-site consultation, pursuant to Subsection B of Section 50-9-6 NMSA 1978 shall be in writing and filed with the bureau. C. On-site consultations shall be provided as bureau consultants are available. No compliance inspection will be delayed by a request for an on-site consultation. No regularly scheduled compliance inspection shall be made during any on-site consultation. An on-site consultation shall be deemed to exist for purposes of this regulation from the date that the bureau's consultant enters the workplace until the violations noted during the inspection are corrected or until the bureau determines that no such corrective action will be taken. D. Bureau consultants shall upon arrival at the workplace, announce the nature, purpose, and scope of their visit. At the conclusion of the consultation, the consultant shall confer with the employer or his representative and advise him of any apparent violations of the state act or the provisions of 11.5.1 NMAC through 11.5.4 NMAC or 11.5.6 NMAC disclosed by the consultation. If the employer fails to take necessary action to correct a serious violation within the duly established time frame for correction, or any extension therefore, the matter shall immediately be forwarded to appropriate bureau personnel for necessary compliance action. E. Bureau consultants shall not issue citations or propose penalties for violations noted, provided imminent danger situations found during the on-site consultative visit must be pointed out to the employer. In the event imminent danger situations are pointed out but immediate steps are not taken by the employer to eliminate 11.5.1 NMAC 7 such danger, the emergency procedures provided in Section 50-9-14 NMSA 1978 shall be pursued by the department to assure timely abatement of the imminent danger situation. [10/9/1975, 9/3/1978, 4/26/1981, 11/16/1983, 1/1/1996; 11.5.1.19 NMAC - Rn & A, 11 NMAC 5.1.19, 10/30/2008] 11.5.1.20 COMPLAINTS BY EMPLOYEES; REVIEW PROCEDURES: A. Any employee or representative of employees may file a written complaint with the bureau concerning any alleged violation of a regulation or any hazardous condition in any workplace where such employee is employed. Any such complaint shall set forth with reasonable particularity the grounds therefore, and shall be signed by the employee or representative of employees. A copy of the complaints shall be provided to the employer or his agent by the compliance officer at the time of the inspection. However, upon the request of the complainant, his name and the names of individual employees referred to therein shall not appear in such copy or on any record published, released or made available by the bureau. B. If upon receipt of such complaint the bureau determines that the complaint meets the requirements set forth in Subsection A of this section, it shall cause an investigation of the complaint to be made as soon as practicable. Investigations under this section are not limited to the matters referred to in the complaint. C. If the bureau determines that the requirements of Subsection A of this section have not been met, it shall notify the complainant in writing of such determination. Such determination shall be without prejudice to the filing of a new complaint meeting the requirements of Subsection A of this section. D. Prior to or during an inspection of a workplace, any employee or representative of employees employed in such workplace may notify the bureau or the compliance officer, in writing, of any violation of the state act which they have reason to believe exists in the workplace. Any such notice shall comply with the requirements of Subsection A of this section. E. The bureau shall promptly notify the complainant and employer in writing of the results of the investigation and any action to be taken. If no action is contemplated, the bureau shall notify the complainant and include in the notice the reasons therefor. F. If the bureau determines that no compliance action will be taken, the complainant may obtain review of such determination by submitting a written request to the secretary within 15 days of receipt of the notice specified in Subsection E of this section. Within five days after receiving the request, the secretary shall notify the employer by certified mail of the request and shall include a copy thereof. However, upon the request of the complainant, his name shall not appear on such copy. G. Within 30 days after notice to the employer, the secretary shall hold such informal conferences as may be necessary for the complainant and the employer to present their views. After considering all written and oral views presented, the secretary shall affirm, modify, or reverse the determination of the bureau and furnish the complainant and the employer a written notification of his decision and the reasons therefore. H. The secretary may designate an employee of the department to conduct the review, but such employee may not be the person who investigated the complaint. The decision of the secretary shall be final and not subject to further review.