Update: Can an Employee Refuse FMLA Leave?

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The Department of Labor has found that employees cannot refuse to take FMLA leave.

By now, most employers know that they have to provide leave under the Family and Medical Leave Act to qualifying employees if that employer has 50 or more employees within a 75-mile radius.  Occasionally, one of my clients will encounter an employee who doesn’t want FMLA leave.  In most cases, the employee wants to refuse FMLA leave initially, use-up all of his/her paid leave first, and then use 12-weeks of unpaid FMLA leave.

The Ninth Circuit Court of Appeals (which issues opinions for many states on the West Coast) allows employees to expressly decline FMLA coverage. See Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236, 1244 (9th Cir. 2014).  The Escriba opinion is not binding on employers in Alabama.  Only the Eleventh Circuit Court of Appeals can give us definitive guidance.  But, the Eleventh Circuit has not issued an opinion on this issue.

In my opinion, the FMLA’s implementing regulations provide an employer with very little choice on whether employees can refuse FMLA leave.  If the employer possesses information demonstrating that an employee suffers from a “serious health condition,” then the employer must designate the leave as FMLA leave — regardless of what the employee wants.  Indeed, the regulations state:  “Once the employer has acquired knowledge that the leave is being taken for a FMLA-qualifying reason, the employer must notify the employee [that the leave is designated as FMLA leave.]”  29 C.F.R. § 825.301(a).  Here is a good blog post discussing the pros and cons of designating leave as FMLA leave over an employee’s objection: Forcing FMLA.

Last week, the United States Department of Labor’s Wage and Hour Division weighed-in on this issue.  In Opinion Letter FMLA2019-1-A, the Wage and Hour Division expressly found:  “Once an eligible employee communicates a need to take leave for an FMLA qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave.”  (DOL Opinion FMLA 2019-1-A at 2.)  Thus, “the employer may not delay designating leave as FMLA-qualifying leave, even if the employee would prefer that the employer delay the designation.”  (Id.)  The DOL’s opinion also expressly disagrees with the Ninth Circuit’s holding in Escriba.

The issue of declining FMLA leave or forcing FMLA leave is a complex one.  In fact, the Eleventh Circuit has left open the possibility that an employee might be able to sue for “involuntary leave.”  While the Court has not issued a specific opinion on that issue, it has recognized that an employee might be able to sue if he/she is forced to use 12 weeks of FMLA leave and then does not have leave available for a later qualifying condition.  As a result, Alabama employers should proceed cautiously before forcing an employee to take FMLA leave.

Employment Law, Sexual Harassment, and a Piping Hot Cup of Tea

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Sexual consent can be comparable to tea. The tea video isn’t a great source for sexual harassment training, but does remind employees that a past relationship does not justify ongoing sexual advances.

Apparently, I live in a cave.  I was at a dinner party last week, and everybody started talking about “The Tea Video.”  I was oblivious.

I was quickly informed that one of the largest employers in North Alabama recently made their workforce watch “The Tea Video.”  Employees were told that the video was required as part of sexual harassment training.  You may have already seen this video.  My wife was quite familiar with it, and told me that it made the rounds on social media at some point in the past.  The purpose of the video is to educate the masses on the concept of sexual consent in a relationship.  For those who are likewise ignorant, here’s the video:

From a mass marketing perspective, this video is perfect.  It’s short, simple, funny and gets its point across.  Nevertheless, I don’t think it’s a great source for sexual harassment training.  Consent can be one factor to consider in a sexual harassment claim.  But, the two most important factors that an employer must stress in training are:  (1) sexual harassment will not be tolerated; and, (2) employees should immediately report any conduct that they believe is sexual harassment.

Employers should try to discourage sexual relationships between employees as much as possible.  In fact, some employers have “no fraternization” policies.  There are pluses and minuses to such policies.  If co-workers are in a sexual relationship, the Tea Video might provide some assistance to prevent future sexual harassment claims.

Many sexual harassment claims arise from failed relationships.  Jilted lovers  continue to make advances at work, and even pursue their love interest at home.  Persistent sexual advances after the end of a relationship can lead to a sexual harassment claim.  Thus, the Tea Video provides some assistance in the sexual harassment area by reminding employees that a past relationship cannot serve as the basis for continuing to pursue a love interest.

Enjoy the video.  And, on cold winter days, enjoy a piping hot cup of tea!

 

FMLA: Employees Without 1,250 Hours Can Still Be Protected

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Some employees are entitled to protection under the FMLA before working 1,250 hours.

Most employers subject to the Family and Medical Leave Act (“FMLA”) know that an employee must work at least 1,250 hours in the previous 12 months to be eligible for 12 weeks of unpaid leave.   In addition to leave, the FMLA provides employees with other protections, like the right to be reinstated at the completion of leave, the right not to have their FMLA benefits interfered with by their employer, and the right to be free from retaliation for using the FMLA.

Many employers think that an employee possesses no rights under the FMLA unless they satisfy the 1,250 hour requirement.  That is a mistaken and dangerous belief.  Even before working 1,250 hours, an employee’s right to be free from FMLA interference can be implicated.  For example, some employees become pregnant before satisfying the 1,250 hour requirement, but they will give birth and need FMLA leave after completing 1,250 hours.  An employer who terminates an employee in order to avoid future FMLA obligations violates the FMLA even if the employee has not worked 1,250 hours.

The first Eleventh Circuit case to discuss this issue was Pereda v. Brookdale Senior Living Communities, 666 F.3d 1269 (11th Cir. 2012).  In June of 2009, Kathryn Pereda notified her employer that she was pregnant and would be requesting FMLA leave after the birth of her child on or about November 30, 2009.  Pereda was terminated from employment in September of 2009.  It was “undisputed that Pereda, at the time she requested leave, was not eligible for FMLA protection because she had not worked the requisite hours and had not yet experienced a triggering event, the birth of her child.”  Pereda, 666 F.3d at 1272.  Nevertheless, the Court found that Pereda was entitled to FMLA protection:  “Without protecting against pre-eligibility interference, a loophole is created whereby an employer has total freedom to terminate an employee before she can ever become eligible.  Such a situation is contrary to the basic concept of the FMLA.”  Id. at 1273.  In short, the Court held that Pereda could sue for FMLA interference and retaliation — even though she had not worked 1,250 hours before she requested leave.

Employers contemplating termination or discipline of an employee who is pregnant or suffering from a serious health condition should proceed very cautiously.  Employers must consider not only whether the employee is currently eligible for FMLA leave, but also whether the employee will be eligible in the future.  Without taking all facts into consideration, employers risk an inadvertent violation of the FMLA.

Employers: Don’t Get Dragged Into the Wrong Venue in Alabama

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Some venues are better than others for Alabama employers.

In Alabama, some counties, and their court systems, are more employer-friendly than others.  That observation is a broad generalization backed-up by experience.  For example, if you conducted a poll of attorneys who represent employers, most would probably prefer to defend a case in Madison County rather than Lee County.  Therefore, the location of a lawsuit (known by the legal term of “venue”) is an important consideration for employers.

The Mercedes-Benz plant in Tuscaloosa County recently helped to establish a more employer-friendly venue rule for Alabama. See Ex parte Mercedes-Benz U.S. International, Inc., No. 1170623, 2019 WL 101144 (Ala. Jan. 4, 2009).  In that case, an employee suffered an on-the-job injury at the Mercedes plant in Vance, which is located in Tuscaloosa County.  He sued for workers’ compensation benefits in his home county, Jefferson County.  Mercedes wanted the case to proceed in its home county and filed a motion to change venue to Tuscaloosa County.

Alabama’s venue rules provide that an employee/plaintiff can sue a corporation in his home county “if such corporation does business by agent in the county of the plaintiff’s residence.”  The Mercedes plant purchases parts used in manufacturing automobiles from multiple suppliers located in Jefferson County.  Therefore, the employee claimed that Mercedes “does business” in Jefferson County when it purchases parts there.  The trial court in Jefferson County agreed and refused to transfer the case to Tuscaloosa County.

Mercedes immediately requested review by the Alabama Supreme Court.  A previous decision from that Court, Ex parte Scott Bridge Co., 834 So.2d 79 (Ala. 2002), held that a bridge company purchasing parts, tools and equipment for bridge building could be sued in Chambers County, where it purchased those items, even if it was not building a bridge in Chambers County.  Thus, Scott Bridge appeared to support the employee’s contention that Mercedes’ purchase of parts for automobile manufacturing in Jefferson County could support venue there.

The Alabama Supreme Court overruled Scott Bridge and held that “[t]he regular purchasing of parts or materials from a supplier located in a certain county, by itself, does not constitute ‘[doing] business by agent’ in that county ….”  In Mercedes’ case, the Court found that the purchase of supplies was “merely incident” to its business, and that Mercedes “is not exercising a business function for which it was created, i.e., manufacturing automobiles [in Jefferson County].”

The Court did not provide us with a clear rule for determining venue in future cases.  Nevertheless, it is clear that the analysis will focus on whether a corporation’s acts in a county are “merely incident” to business or part of the “a  business function for which it was created.”  That analysis is more employer-friendly and will narrow the number of counties in which any particular lawsuit can be filed.

 

Government Shutdown: Salary/Overtime Issues for Contractors

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The government shutdown causes issues with payment of employees for government contractors.

The federal government is in another shutdown.  Obviously, there are many thorny political issues behind the shutdown.  But, there are also practical and legal issues that arise for employers.  In particular, government contractors have employees that want to work and be paid.  One particularly difficult area involves payment of employees who are exempt from overtime.  Contractors need to make sure that they do not accidentally lose the exemption for employees who only work part of a week because of the government shutdown.

In order to be exempt from overtime, executive, administrative and professional employees must paid on a “salary basis.”   To be paid on a “salary basis,” an employee must receive in each pay period a predetermined amount that constitutes all or part of their compensation, and that compensation cannot be reduced because of variations in quality or quantity of work. In other words, you must pay an exempt employee their full salary for any week in which they perform any work regardless of the number of days or hours they actually work.

So, what if you have an exempt employee who is required to report to their government facility today, only to be told that they are non-essential and must return home.  Do you have to pay that employee a full week’s salary, even though they reported to work for an extremely short period of time?  In short:  “Yes.”

But, what about next week?  If the shutdown continues, and the exempt employee performs no work at all next week, are your required to pay them their full salary?  In short:  “No.”  The Fair Labor Standards Act’s implementing regulations provide: “Exempt employees need not be paid for any workweek in which they perform no work.”  Here, it is crucial that employees perform no work at all.  In this electronic age, there is an argument that checking work e-mail can constitute “work.”  Therefore, if government contractors want to ensure that they are not responsible for salary during the government shutdown, they should explicitly instruct exempt employees not to check e-mail or conduct any work-related activities during the shutdown.

Some of my clients believe there are exceptions for partial-week “furloughs” of employees.  In the vast majority of cases you cannot “furlough” an exempt employee without risking loss of the exemption.  If you want to require exempt employees to work for a partial-week, and only pay the for the partial week, you should consult with your employment attorney.

Federal Courts Frown on “Shotgun Pleading.”

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“Shotgun Pleading” creates problems in employment litigation.

As I drafted today’s post, a couple of colloquialisms came to mind.  First:  “Shoot first and ask questions later.”  Second:  “Sometimes, less is more.”  Federal judges are more fond of the second saying.  Frequently, lawyers file complaints (the document that starts a lawsuit) in a broad manner — including all possible facts and all possible claims — without specifying which facts apply to which claims.  In the legal profession, this is called “shotgun pleading.”  Federal judges don’t like shotgun pleading and two of our judges in the Northern District of Alabama recently entered decisions related to shotgun pleading.

In Roney v. City of Huntsville, No. 5:18-cv-1482-CLS, 2018 WL 632483 (N.D. Ala. Dec. 4, 2018), Senior United States District Court Judge C. Lynwood Smith, Jr. provided a synopsis of the different types of shotgun pleading:

  1.  A complaint containing multiple counts/claims, where each count adopts the allegations of preceding counts.  This is a well-worn practice in Alabama, and I think it evolves from fears that a lawyer doesn’t want to accidentally omit something from a claim.  So, the lawyer will start each claim in a complaint with something like:  “Plaintiff incorporates all of the allegations and pleadings in the preceding paragraphs as if set forth fully herein.”
  2. A complaint “replete with conclusory, vague, and immaterial facts not obviously connected to any particular cause of action.”
  3. A complaint which fails to separate into a different count/claim each cause of action or claim for relief.
  4. A complaint which asserts multiple claims against multiple defendants, but fails to specify which defendants are responsible for which acts or omissions, or against which of the defendants the claim is brought.

Roney is a Title VII action in which Judge Smith granted a motion to dismiss the employee’s shotgun pleading.  He concluded that the complaint fell into the first and second types.  Most particularly, Judge Smith faulted conclusory pleading such as:  “she was subjected to a sexually hostile work environment by her supervisor ….”  Roney, 2018 WL 6326483 at *4.  It appears that a better pleading would have identified the specific actions of the supervisor that amounted to a hostile work environment.  While Judge Smith granted the motion to dismiss, he also gave the employee an opportunity to file a subsequent complaint that would not contain the same defects.

Judge Annemarie Carney Axon also found that the employee filed a shotgun pleading in Hawkins v. Holy Family Cristo Rey Catholic High School, No. 2:18-cv-00638-ACA, 2018 WL 6326485 (N.D. Ala. Dec. 4, 2018).  She found that the complaint filed by the employee in that Title VII case was a Type 1 and 3 shotgun pleading.  Nevertheless, she continued to review the complaint and found that a partial dismissal was warranted.

Employment litigation is a specialized field and litigating in federal court requires precision.  The Roney and Hawkins cases demonstrate that a lack of precision, and reliance upon a shotgun approach, can be detrimental to an employee’s case.

 

Is Your Christmas Party a Form of Religious Discrimination?

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Christmas celebrations can cause legal problems for employers.

Merry Christmas!!  December 25 is just around the corner.  Many employers hold a Christmas party to celebrate this time of the year.  But, not all employees are Christians.  Many don’t celebrate Christmas.  Could your Christmas party be a form of religious discrimination?

In summary, Title VII of the Civil Rights Act of 1964 prohibits discrimination in the workplace on the basis of religion. The word “religion” in Title VII includes “all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate an employee’s … religious observance or practice without undue hardship on the conduct of the employer’s business.”  42 U.S.C. § 2000e(j).  Therefore, an employer has a statutory obligation to make reasonable accommodation for the religious observances of its employees, short of incurring an undue hardship.  Walden v. Ctrs. for Disease Control & Prevention, 669 F.3d 1277, 1293 (11th Cir. 2012).

Generally, my advice is to make sure employees enjoy the holidays and Christmas celebrations.  You won’t violate Title VII merely by having a Christmas party.  But, you get closer to trouble if you require employees to attend a Christmas party, or take action against them because of their refusal to participate in Christmas activities.  If an employee has a reasonable religious objection to a holiday activity, try to work with them to resolve their objections and accommodate their beliefs.  If their religious objection puts an undue burden on your business, call your lawyer before taking any specific action.  Following is a discussion of a few cases involving allegations of religious discrimination at Christmas.

Close to home is the decision in Chandler v. Infinity Ins. Group, No. 2:12-cv-2870-TMP, 2014 WL 2547826 (N.D. Ala. Jun. 4, 2014).  In Chandler, the employee was a Jehovah’s Witness.  She alleged that her employer discriminated against her by forcing her to attend a Christmas party in violation of her religious beliefs.  Magistrate Judge T. Michael Putnam dismissed the employee’s claim, however, because she never informed anybody that attending a holiday party would conflict with her sincerely held religious beliefs.

A slightly different fact situation was presented in Mitchell v. American Eagle Airlines, Inc., No. 15-757-SDD-RLB, 2017 Wl 2588597 (M.D. La. Jun. 14, 2017).  In Mitchell, a Jehovah’s Witness employee claimed that she suffered religious discrimination when her employer made her work after she refused to attend a Christmas party.  The trial court dismissed that claim, primarily because the employee failed “to demonstrate how working during a Christmas party is a cognizable adverse employment action under the law.”

At least one court has found that an employer may refuse an employee’s request to attend Christmas social gatherings — even when those gatherings are closely tied to Christmas mass.  See Duran v. Select Medical Corp., No. 08-cv-2328-JPM-tmp, 2010 WL 11493117 (W.D. Tenn. Mar. 19, 2010).  In Duran, the employee was scheduled to work as a charge nurse on Christmas day.   She made multiple requests to be off-work that day, including a letter to the CEO that concluded:  “I would like to remind you that I and my family are Catholic and Christmas day is a very special holy day for us.”  Despite those requests, the employee was still required to work on Christmas day.  The evidence showed that the employee celebrated Christmas mass from midnight to 1:00 a.m. on December 25.  Then, she participated in a family meal and exchange of gifts at home until approximately 5:00 a.m.  She was required to be at work at 7:00 a.m.  The Court concluded that “the family meal and gift exchange that followed Christmas Mass are not religious practices or observances protected by Title VII.  …. Title VII does not protect purely social events.”  The Court found that attendance at Christmas Mass is a protected religious observance, but there was no conflict between a mass that ended at 1:00 a.m. and a work schedule beginning at 7:00 a.m.

In at least one case, an employer was required to endure a trial to decide whether an employee was compelled to wear a Santa hat during the holiday season.  Velez-Sotomayor v. Progresso Cash & Carry, Inc., No. 01-1678, 279 F.Supp.2d 65 (D.P.R. 2003).  The employer required all employees to wear Christmas hats, and the employee refused because of her Jehovah’s Witness beliefs.  The employer then suspended her with pay during the Christmas season.  The employer’s main defense was that the employee could not explain why wearing a Christmas hat violated a sincerely held religious belief.  The trial court found that a jury should resolve that issue.

I hope that all of your days are merry and bright during this Holiday Season!!

 

 

 

Service Contract Act: Holiday Pay Issues

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Make sure that you comply with the Service Contract Act’s holiday pay provisions.

Happy Holidays!! For my friends in the government contracting world, this post is a quick reminder that nothing is ever easy when dealing with the federal government and employees.  In particular, you need to make sure to comply with the holiday pay requirements of the Service Contract Act.  Here are some key reminders from the Service Contract Act regulations on holiday pay, found at 29 C.F.R. 4.174.

  1. Employees receive holiday pay if they perform any work during the workweek that a holiday occurs.
  2. Unless a different standard is used in a wage determination, a full-time employee who works on the holiday must be paid, in addition to the amount he ordinarily would be entitled, the cash equivalent of a full-day’s pay up to 8 hours or be furnished another day off with pay.
  3. An employee who performs no work during the workweek in which a named holiday occurs is generally not entitled to the holiday benefit.  But, if the employee does not work because he is on paid vacation or sick leave, he may be entitled to the benefit.
  4.  Holiday pay benefits cannot be denied because the employee did not work the day before or the day after the holiday, unless such qualifications are specifically included in the determination.
  5. There is an interesting quirk for newly hired employees. A contractor generally is not required to compensate a newly hired employee for the holiday occurring prior to the hiring of the employee. However, where a named holiday falls in the first week of a contract, all employees who work during the first week are entitled to holiday pay for that day. For example, if a contract to provide services for the period January 1 through December 31 contains a fringe benefit determination listing New Year’s Day as a named holiday, and if New Year’s Day is officially celebrated on January 2 in the year in question because January 1 fell on a Sunday, employees hired to begin work on January 3 would be entitled to holiday pay for New Year’s Day.
  6.  A full-time employee who is eligible to receive payment for a named holiday must receive a full day’s pay up to 8 hours unless a different standard is used in the fringe benefit determination.  Thus, for example, a contractor must furnish 7 hours of holiday pay to a full-time employee whose scheduled workday consists of 7 hours. An employee whose scheduled workday is 10 hours would be entitled to a holiday payment of 8 hours unless a different standard is used in the determination.

 

Does a Termination to Avoid “Racial Tension” Violate Title VII?

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Arguably, a termination to avoid racial tension could violate Title VII of the Civil Rights Act of 1964.

This is not a post about race relations in America.  Instead, this post is focused on the following issue:  What happens if an employer terminates an employee to avoid racial tension caused by  that employee’s conduct?

That was one of the underlying issues in Burton v. Gwinnett County School Dist., No. 18-10904, 2018 WL 6259631 (11th Cir. Nov. 28, 2018).  Lauri Burton was a Principal at B.B. Harris Elementary School in the Gwinnett County School District.  She is white.  She and two African-American Assistant Principals removed a disruptive African-American student to a conference room.  The student then repeatedly slammed a chair against a wall, causing a small indentation.  When Burton met with the student’s family, she lied and claimed that the student made a hole in the wall.  After that meeting, Burton ordered one of the Assistant Principals to take a hammer and make a hole in the wall.  She then e-mailed pictures to the student’s family.

When Burton’s actions were discovered, she was terminated from employment by the system’s Superintendent.  After she was terminated, an Associate Superintendent told Burton:  “This could look like you framed children.  This is a little black boy.  This is two black APs.”  Additionally, the School District submitted a report to the Georgia Professional Standards Commission.  In the course of making that report, the District’s Executive Director of Human Resources and Staffing made statements to an investigator indicating that concerns about race relations in the community were a factor.

Burton sued under Title VII of the Civil Rights Act of 1964 claiming that her race was a factor in termination of her employment. Her lawsuit was a “mixed motive” claim.  Burton effectively acknowledged that her actions were improper but argued that race was also a factor in the termination decision.  Without any discussion, the Eleventh Circuit appeared to assume that Burton might be able to succeed on a mixed motive theory — if she could prove that avoiding racial tension motivated her termination.

But, the court sidestepped the issue by finding that Burton provided no evidence regarding the Superintendent’s motives.  The Superintendent was the decision-maker, and the Superintendent denied that race was a factor.  Burton’s evidence consisted solely of statements made by non-decision-makers after the termination decision.  Thus, the court found that she could not meet her burden of proving that race motivated her termination.

But, what if the Superintendent made the statements?  What if an admitted reason for termination was to avoid the potential for racial tension in the community?  Could Burton have succeeded in her race discrimination claim?

I did some quick, but by no means exhaustive, research and I could not find any other cases discussing termination of employees as part of an effort to avoid racial tension.  Title VII expressly prohibits termination “because of” an employee’s race.  See 42 U.S.C. § 2000e-2.  And, in a mixed-motive case, the employee only must show that race was “a motivating factor” for the employer in making the employment decision.  At least one Eleventh Circuit case holds that a employee can “succeed on a mixed-motive claim if she demonstrates that ‘discriminatory input,’ such as [race or gender] bias, factored into the board’s ‘decisional process.'” Quigg v. Thomas Cty. Sch. Dist., 814 F.3d 1227, 1241 (11th Cir. 2016)

In short, I think that an employee like Ms. Burton could at least make an argument that Title VII forbids termination where a motivating factor is avoiding racial tension.  Under that argument, Ms. Burton would show that race factored into her employer’s decisional process.  A counter-argument would stress that racial bias is the deciding factor — not merely the presence of race.  While race relations in the workplace or the community were considered, the employer will argue that it was not biased against Ms. Burton because of the color of her skin.  Instead, it acted to avoid discord.

I wouldn’t want to be the Judge deciding that case, and I wouldn’t want to be the employer being sued for such a claim.  Therefore, my advice is to avoid even the suggestion that race plays any role factor whatsoever in an employment decision.

OSHA’s Inspection Powers Have Limits

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OSHA inspections have limits.

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.