The United States Department of Labor’s Occupational Safety and Health Administration (“OSHA”) has become more aggressive in recent years. OSHA inspectors frequently seek to push the limits of their right to inspect employer premises. A recent case from the Eleventh Circuit Court of Appeals imposes some limits on those inspection rights. See USA v. Mar-Jac Poultry, Inc., No. 16-17745, 2018 WL 4896339 (11th Cir. Oct. 9, 2018).
A Mar-Jac employee was severely burned on February 3, 2016 when he attempted to repair an electrical panel using a non-insulated screwdriver. Mar-Jac reported that accident to OSHA, and inspectors arrived at Mar-Jac’s facility on February 8, 2016. The inspectors asked to inspect not only the hazards involved in the accident, but also to conduct a comprehensive inspection of the entire facility. When Mar-Jac refused that comprehensive inspection, OSHA asked a federal court to issue a warrant permitting inspection of the facility. When Mar-Jac received the warrant, it filed an emergency motion to quash (or stop) the warrant and inspection. The court reviewing the motion to quash agreed with Mar-Jac and prevented the expanded inspection. OSHA appealed to the Eleventh Circuit.
Importantly, the Mar-Jac case involved an “unprogrammed” inspection by OSHA. OSHA has created “emphasis programs” in industries that pose a high risk to workers, and randomly inspects facilities under those programs. If Mar-Jac involved a random, programmed inspection, the result would probably have been different.
“The scope of an unprogrammed inspection must bear an appropriate relationship to the violation alleged by the evidence.” Mar-Jac, 2018 WL 4896339 at * 4. “When nothing more is offered than a specific complaint relating to a localized condition, probable cause exists for a search to determine only whether the complaint is valid.” Id.
Nevertheless, the Eleventh Circuit recognized that an expanded, full-facility inspection may be warranted in some circumstances: “it is conceivable that a specific violation plus a past pattern of violations may be probable cause for a full scope inspection. In addition, a specific complaint may allege a violation which permeates the workplace so that a full scope inspection is reasonably related to the complaint.”
OSHA tried to argue that a pattern of violations existed which supported its request for a full-facility inspection. In particular, it relied upon Mar-Jac’s OSHA 300 logs to argue that the facility had a pattern of OSHA violations. But, OSHA 300 logs do not necessarily record OSHA “violations.” Instead, they merely contain a listing of work-related injuries and illnesses. And, the Eleventh Circuit stressed that the mere existence of workplace hazards would not support a warrant: “The existence of a ‘hazard’ does not necessarily establish the existence of a ‘violation,’ and it is a ‘violation’ which must must be established by reasonable suspicion in the application [for a full-facility inspection warrant].”
Ultimately, the Eleventh Circuit concluded that OSHA did not provide enough evidence of OSHA violatoins to justify a full scope inspection of the facility. And, that is really the lesson of Mar-Jac. If an employer operates a facility that is generally free of OSHA violations, it may be possible for that employer to resist a request by OSHA for an unprogrammed full-facility inspection.