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Federal Court Hands Employers a Victory By Limiting the Scope of OSHA Investigations

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In what should be viewed as a victory for employers, the United States Circuit Court of Appeals for the Eleventh Circuit recently issued a decision limiting the scope of OSHA inspections. United States v. Mar-Jac Poultry, Inc., No. 16-17745 (11th Cir. 2018).

In February 2016, an employee at Mar-Jac’s poultry processing facility was severely burned and hospitalized after attempting to repair an electrical panel.  Within days of Mar-Jac reporting the injury to OSHA, OSHA compliance officers visited Mar-Jac’s facility.  OSHA sought to inspect not only the accident site, but Mar-Jac’s entire facility.  Mar-Jac gave limited consent to inspection of the electrical accident site, but refused to permit inspection of any additional areas. 

OSHA’s limited inspection revealed additional potential violations of electrical safety, personal protective equipment, machine guarding and other standards. OSHA also determined that the injuries reported on Mar-Jac’s OSHA 300 logs suggested additional possible violations covered by an OSHA Regional Emphasis Program (“REP”) that permits random “programmed” inspection of such facilities based on neutral criteria. 
OSHA sought an administrative warrant from a federal magistrate judge to expand its inspection, arguing that it had probable cause to conduct a top-to-bottom inspection on three grounds: 1) the OSHA compliance officers had personally observed additional hazards during its limited inspection, (2) the OSHA 300 logs revealed additional potential hazards, and 3) probable cause existed to conduct a programmed inspection based on OSHA’s Poultry REP.  The District Court quashed the warrant, and OSHA appealed.

On appeal, OSHA argued that the District Court erred by applying a more stringent standard which purports to require OSHA to show that employees had been injured as a result of suspected violations.  OSHA also argued that the District Court conflated the terms “hazard” and “violation” and that OSHA had presented reasonable suspicion of additional violations based on Mar-Jac’s OSHA 300 logs. 

The 11th Circuit affirmed the District Court’s ruling.  First, the Court held that the District Court correctly applied the reasonable suspicion standard and simply found that OSHA did not establish reasonable suspicion to inspect for the additional suspected hazards. Second, the Court rejected OSHA’s argument that “because there was an injury, there must have been a hazard, and because there was a hazard, there is likely a violation to be found.”  Rather, the Court affirmed that “the existence of a ‘hazard’ does not necessarily establish the existence of a ‘violation,’” and that OSHA must, when applying for a warrant, demonstrate reasonable suspicion that a violation (not simply a hazard) exists.”  Finally, after reviewing Mar-Jac’s OSHA 300 logs, the Court determined that the injury descriptions were vague and showed no common thread sufficient to justify a comprehensive inspection.

Mar-Jac (1) reinforces the notion that there are limits on OSHA’s inspection authority and (2) confirms the right of employers to limit consent to inspect or to challenge a warrant. OSHA cannot expand an accident-based inspection simply because of an emphasis program, injuries recorded on an OSHA 300 log, or the mere existence of a hazard. So, if faced with a request by OSHA to expand the scope of an accident-based inspection, employers should contact counsel immediately to determine an appropriate response.
 

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