Power to Enter, Inspect Places, Prohibition of

Advance Notice, Record Keeping and Other Requirements.

(a)In order to carry out the purposes of this Title, the Director, or his authorized representative upon presenting appropriate credentials to the owner, operator, or agent in charge is authorized:

(1)To enter without delay and at reasonable times any factory, plant, establishment, construction site, or other area, COL 1/26/2024 DIV. 1 LABOR REGULATIONS CH. 1 DEPARTMENT OF LABOR work place or environment where work is performed by an employee of an employer; and where such entry or inspection is refused, the Director shall have the authority through appropriate legal process in the Superior Court of Guam, to compel such entry and inspection; and

(2)To inspect and investigate during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, any such place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, and to question privately any such employer, owner, operator, agent or employee.

(b)In making his inspections and investigations under this Title the Director may require the attendance and testimony of witnesses and the production of evidence under oath. In a case of contumacy, failure or refusal of any person to obey such an order, the Superior Court of Guam, upon the application by the Director shall have jurisdiction to issue such person an order requiring such person to appear to produce evidence if, as, and when so ordered, and to give testimony relating to the matter under investigation or in question. Any failure to obey such order of the Court may be punished by said Court as a contempt thereof.

(c)Records.

(1)Each employer shall make, keep and preserve, and make available to the Department, such records regarding his activities relating to this Title as the Department may prescribe by regulation as necessary or appropriate for the enforcement of this Title or for developing information regarding the causes and prevention of occupational accidents, diseases, and illnesses. Such regulations may include provisions requiring employers to conduct periodic inspections. The Department shall also issue regulations requiring that employers, through posting of notices or other appropriate means, keep their employees informed of their protection and obligations under this Title, including the provisions of all applicable standards. COL 1/26/2024 DIV. 1 LABOR REGULATIONS CH. 1 DEPARTMENT OF LABOR

(2)The Department shall prescribe regulations requiring employers to maintain accurate records of, and to make periodic reports on, work-related deaths, injuries, and illnesses other than minor injuries requiring only first-aid treatment and which do not involve medical treatment, loss of consciousness, restriction of work or motion, or transfer to another job.

(3)The Department shall issue regulations requiring employers to maintain accurate records of employee exposures to potentially toxic materials or harmful physical agents which are required to be monitored or measured under this Title. Such regulations shall provide employees or their representatives with an opportunity to observe such monitoring or measuring, and to have access to the records thereof. Such regulations shall also make appropriate provisions for each employee or former employee to have access to such records as will indicate his own exposure to toxic materials or harmful physical agents. Each employer shall promptly notify any employee who has been or is being exposed to toxic materials or harmful physical agents in concentrations or at levels which exceed those prescribed by an applicable occupational safety and health standard promulgated under this Title and shall inform any employee who is being thus exposed of the corrective action being taken.

(d)Any information obtained by the Director shall be obtained with a minimum burden upon employers, especially those operating small businesses. Unnecessary duplication of efforts in obtaining information shall be reduced to the maximum extent feasible.

(e)Subject to regulations issued by the Director, a representative of the employer and a representative authorized by his employees shall be given an opportunity to accompany the Director or his authorized representative during the physical inspection of any work place under this section for the purpose of aiding such inspection. Where there is no authorized employee representative, the Director or his authorized representative shall COL 1/26/2024 DIV. 1 LABOR REGULATIONS CH. 1 DEPARTMENT OF LABOR consult with a reasonable number of employees concerning matters of health and safety in the work place.

(f)[No text.]

(1)Any employee or representative of employees who believes that a violation of a safety or health standard exists that threatens physical harm, or that an imminent danger exists, may request an inspection by giving notice to the Director or his authorized representative of such violation or danger. Any such notice shall be reduced to writing, shall set forth with reasonable particularity the grounds for the notice, and shall be signed by the employee or representative of employee, and a copy shall be provided the employer or his agent no later than at the time of inspection, except that, upon the request of the person giving such notice, his name and the names of individual employees referred to therein shall not appear in such copy or in any record published, released or made available pursuant to Subsection

(h)of this section. if upon receipt of such notification the Director determines there are reasonable grounds to believe such violation or danger exists, he shall make a special inspection in accordance with the provisions of this section as soon as practicable, to determine if such violation or danger exists. If the Director determines there are no reasonable grounds to believe that a violation or danger exists, he shall notify the employee or representative of employees in writing or such determination.

(2)Prior to or during any inspection of a work place, any employee or representative of employees employed in such a work place may notify the Director or any representative of the Director responsible for conducting the inspection, in writing, of any violation, of this Title which he has reason to believe exists in such work place. The Director shall, by regulation, establish procedures for informal review of any refusal by a representative of the Director to issue a citation with respect to any such alleged violation and shall furnish the employee or representative of employees requesting that COL 1/26/2024 DIV. 1 LABOR REGULATIONS CH. 1 DEPARTMENT OF LABOR such review a written statement of the reasons for the Director’s final disposition of the case.

(g)No person shall give advance notice of any inspection to be conducted under this Title, without authority from the Director or his authorized representative, except as provided by 29 C.F.R. Part 1903.6. Any person who gives such advance notice shall be guilty of a petty misdemeanor.

(h)The Director is authorized to compile, analyze, and publish either in summary or detailed form, all reports or information obtained under this section.

(i)[No text.]

(1)If upon inspection or investigation, the Director or his authorized representative believes that an employer has violated a requirement of § 1204 of this Title, or any standard, rule or order promulgated pursuant to § 1206 of this Title, or of any regulations prescribed pursuant to this Title, he shall with reasonable promptness issue a citation to the employer. Each citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provision of the Title, standard, rule, regulation or order alleged to have been violated. In addition, the citation shall fix a reasonable time for the abatement of the violation. The Director may prescribe procedures for the issuance of a notice in lieu of a citation with respect to de minimis violations which have no direct or immediate relationship to safety or health.

(2)Each citation issued under this section, or a copy or copies thereof, shall be prominently posted, as prescribed in regulations issued by the Department, at or near such place a violation referred to in the citation occurred.

(3)No citation may be issued under this section after the expiration of six

(6)months following the occurrence of any violation.

(j)[No text.] COL 1/26/2024 DIV. 1 LABOR REGULATIONS CH. 1 DEPARTMENT OF LABOR

(1)If, after an inspection or investigation, the Director issues a citation under this section he shall, within a reasonable time after the termination of such inspection or investigation, notify the employer by certified mail of the penalty, if any, proposed to be assessed under § 1116 and that the employer has Twenty

(20)calendar days within which to notify the Director that he wishes to contest the citation or proposed assessment of penalty by serving upon the Director a copy of the petition filed with the Superior Court for a review of the citation or proposed assessment of penalty. If, within twenty

(20)calendar days from the receipt of the notice issued by the Director the employer fails to notify the Director that he intends to contest the citation or proposed assessment of penalty and no notice is filed by an employee or representative of employees under Subsection

(3)within such time, the citation and the assessments, as proposed, shall be deemed a final order of the Superior Court not subject to review by any court or agency.

(2)If the Director has reason to believe that an employer has failed to correct a violation for which a citation has been issued within the period permitted for its correction (which period shall not begin to run until the entry of a final order by the Superior Court in the case of any review proceedings under this section initiated by the employer in good faith and not solely for delay or avoidance of penalties), the Director shall notify the employer by certified mail of such failure and of the penalty proposed to be assessed under § 1116 by reason of such failure, and that the employer has twenty

(20)calendar days within which to notify the Director that he wishes to contest the Director’s notification or the proposed assessment of penalty by serving upon the Director a copy of the petition filed with the Superior Court for a review of the notification or the proposed assessment of penalty. If, within twenty

(20)calendar days from the receipt of notification issued by the Director, the employer fails to notify the Director that he intends to contest the notification or proposed assessment of penalty, the notification and COL 1/26/2024 DIV. 1 LABOR REGULATIONS CH. 1 DEPARTMENT OF LABOR assessment, as proposed, shall be deemed a final order of the Superior Court not subject to review by any court or agency.

(3)[No text.]

(A)An employee or representative of employees shall notify the Director within twenty

(20)calendar days of the issuance of a citation under Subsection (1), that he intends to contest the period of time fixed in the citation for the abatement of the violation as unreasonable, by mailing the Director a copy of the petition filed with the Superior Court for a review of the abatement period fixed in the citation.

(B)A copy of the filed petition shall be prominently posted at or near each place a violation referred to in the citation occurred.

(4)[No text.]

(A)Upon such filing, the Superior Court shall have jurisdiction of the matter and shall afford an opportunity for a hearing (in accordance with the Superior Court’s procedures). the Superior Court shall after a hearing, issue its order, based on findings of fact affirming, modifying, or vacating the Director’s citation, or proposed penalty, or directing other appropriate relief, and such order shall become final thirty

(30)days after its issuance.

(B)Upon a showing by an employer of a good faith effort to comply with the abatement requirements of citation, and that abatement has not been completed because of factors beyond his reasonable control, the Superior Court after an opportunity for hearing as provided in this subsection, shall issue an order affirming or modifying the abatement requirements in such citation.

(C)The rules of procedure prescribed by the Superior Court shall provide affected employees or COL 1/26/2024 DIV. 1 LABOR REGULATIONS CH. 1 DEPARTMENT OF LABOR representatives of affected employees an opportunity to participate as parties to hearings under this subsection.

(k)[No text.]

(1)Any person adversely affected or aggrieved by any order of the Superior Court under this section may obtain a review of such order in the District Court of Guam by filing in such court within sixty

(60)days following the issuance of such order a written petition praying that the order be modified or set aside.

(A)A copy of such petition shall be forthwith transmitted by the Clerk of the District Court to the Superior Court, to the Director, and to the other parties, and thereupon the Superior Court shall file in the District Court the record in the proceeding as provided by the District Court’s rules of procedures.

(B)Upon such filing, the Court shall have jurisdiction of the proceeding and of the question determined therein, and shall have power to grant such temporary relief or restraining order as it deems just and proper, and to make and enter upon the pleading, testimony, and proceedings set forth in such record a decree affirming, modifying, or setting aside in whole or in part, the order of the Superior Court and enforcing the same to the extent that such order is affirmed or modified.

(C)The commencement of proceedings under this subsection shall not, unless ordered by the Court, operate as a stay of the order of the Superior Court.

(D)No objection that has not been urged before the Superior Court shall be considered by the Court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.

(E)The findings of the Superior Court with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive. COL 1/26/2024 DIV. 1 LABOR REGULATIONS CH. 1 DEPARTMENT OF LABOR

(F)If any party shall apply to the Court for leave to adduce additional evidence and shall show to the satisfaction of the Court that such additional evidence is material that there were reasonable grounds for the failure to adduce such evidence in the hearing before the District Court, the Court may order such additional evidence to be taken before the Superior Court and to be made a part of the record.

(G)The Superior Court may modify its findings as to the facts, or make new findings, by reason of additional evidence so taken and filed, and it shall file such modified or new findings, which findings with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive, and its recommendations, if any, for the modification or setting aside of its original order.

(H)Upon the filing of the record with it, the jurisdiction of the Court shall be exclusive and its judgment and decree shall be final, except that the same shall be subject to review by the Supreme Court of the United States, as provided in § 1254 of Title 28 U.S.C.

(2)The Director may also obtain review or enforcement of any final order of the Superior Court by filing a petition for such relief in the District Court of Guam, and the provisions of Subparagraph

(1)shall govern such proceedings to the extent applicable.

(A)If no petition for review, as provided in Subparagraph

(1)is filed within sixty

(60)days after service of the Superior Court’s order, the Superior Court’s findings of fact and order shall be conclusive in connection with any petition for enforcement which is filed by the Director after the expiration of such sixty

(60)days period.

(B)If any such case, as well as in the case of a noncontested citation or notification by the Director which has become a final order of the Superior Court under COL 1/26/2024 DIV. 1 LABOR REGULATIONS CH. 1 DEPARTMENT OF LABOR Subparagraph

(1)or

(2)of Subsection (j), the Clerk of the Court, unless otherwise ordered by the Court, shall forthwith enter a decree enforcing the order and shall transmit a copy of such decree to the Director and the employer named in the petition.

(C)In any contempt proceeding brought to enforce a decree of the District Court entered pursuant to this subparagraph or Subparagraph (1), the District Court may assess the penalties provided in § 1116 in addition to invoking any other available remedies.

(l)All information reported or otherwise obtained by the Director or his authorized representative in connection with any inspection or proceeding under this Title which contains or might reveal a trade secret (referred to in § 1905 of Title 18 of the United States Code) shall be considered confidential except that such information may be disclosed to other officers or employees concerned with carrying out this Title or when relevant in any proceeding under this Title. In any such proceeding, the Director, the Superior Court, or the District Court, shall issue such orders as may be appropriate to protect the confidentiality of trade secrets.