09/02/2016
One of the most common questions asked about OSHA Inspections is, “Do I have to let them in my business?” My short answer has always been – No you do not, but it is often advisable that you do so.
It is within your rights as a business owner to require that OSHA inspectors present a Warrant to enter your premises. However, history shows that OSHA is almost always granted a warrant. Furthermore, requiring a warrant usually only serves to alienate you from the inspectors and heighten their suspicion that you are hiding something.
A Magistrate Judge from the Georgia’s Northern District has decided that this is not necessarily an acceptable practice. Magistrate Judge J. Clay Fuller held that OSHA needed to establish “probable cause” before they could obtain an expanded warrant to search a poultry plant. The case arose when OSHA responded to a worker complaint and injury report at a poultry plant. OSHA has an obligation to respond to injury reports and this obligation is expressed to the extent that if an OSHA inspector is driving by a business and sees an ambulance in the parking lot they are expected to stop and at least briefly investigate the reason for the ambulance. Traditionally however, once an OSHA inspector is on site they will begin an inspection that far exceeds the area and scope of the injury or complaint that brought them there.
What does that mean exactly? An example – Business A reports an employee was injured by a garage door that fell and broke the leg of an employee while shooting a commercial. OSHA shows up to investigate but rather than just inspect the area where the accident happens they inspect every corner of the facility, questioning employees who were not present or involved in the reported incident. The OSHA inspector finds that the employer was not at fault for the injury that was reported, but fines the employer $40,000 for violations that are unrelated and which had resulted in no injuries.
The folks at the Mar-Jac Poultry Company objected to exactly this expansive practice. When OSHA arrived they showed the OSHA inspector where the incident occurred, but declined to allow the OSHA inspector to begin an unrestricted inspection of their facility without a warrant.
OSHA applied for a warrant stating that they had a Special Emphasis Program which instructed them to investigate multiple aspects of Poultry related businesses, many of these aspects are unrelated to the reported injury at the company in question. Magistrate Judge Fuller has held that merely having a program targeting a group does not create probable cause to come and inspect that organization. Judge Fuller stated that if OSHA did not have to show probable cause then, “[these inspections could] become tools of harassment.” Judge Fuller acknowledged that the injury which was reported did provide probable cause for OSHA to investigate some aspects of the business which were related to the incident but recommended that a warrant to justify an inspection beyond that point should be denied.
A particularly interesting point is that Judge Fuller stated that a worker complaint was not sufficient justification for an OSHA inspector to receive a warrant to just waltz in and perform a wall to wall and top to bottom inspection. This makes sense as in criminal cases warrants have to be very specifically tailored and generally judges frown on signing warrants for “fishing expeditions.” Yet, OSHA has historically been able to say to a Judge, “Look an employee complained so we need access to inspect every corner of the employer’s facility” and Judges have generally said, “Okay, have at it.”
This decision by Judge Fuller is a major win for Business owners and those concerned with an ever expansive government bureaucracy. However, the case is now before the Federal District Court for the Northern District of Georgia who have the power to overturn Judge Fuller’s decision. We will provide updates as they become available.
If your business has had problems with OSHA or would like to know what you can do to protect yourself from OSHA inspections please contact our office at 888-313-0416.
Jonathan Moore is Prince Law Office’s in-house OSHA Consultant. He served as Manager of Corrective Actions and Director of Corporate Compliance for an Aerospace Manufacturing Company. He now attends law school at the Pennsylvania State University School of Law while working for Prince Law Offices.
Prince Law Offices Blog 