The Potential-Impact-of-OSHA-300-Records on the Scope of-OSHA-Inspections

While the OSHA rulemaking process appears to be focused on remedying problems with existing rules, the Solicitor of Labor continues to test the limits of employers’ 4^th Amendment rights[1] to be free from unreasonable searches and seizures, with the case of Mar-Jac Poultry[2] illustrating what is at stake.

In February of 2016, a Mar-Jac employee incurred serious burn injuries from an arc flash incident, which Mar-Jac reported to OSHA. OSHA responded by sending a team of three inspectors (a safety officer, a health officer and the assistant area director) to the facility several days later to perform a comprehensive inspection. Mar-Jac consented to an inspection to be performed only by the safety officer and limited to the electrical accident site, the tools involved in the accident and the last three years of the site’s records required by the OSHA Injury and Illness Recordkeeping Rule (“OSHA 300 Records”).

OSHA conducted the limited inspection permitted by Mar-Jac and, on the basis of that inspection, identified potential violations of OSHA standards related to electrical safety, including the use of personal protective equipment, and the control of hazardous energy. Based on a review of the site’s OSHA 300 Records, OSHA also concluded there was evidence of improper OSHA 300 recordkeeping and evidence of excessive employee exposure to five types of hazards allegedly common to poultry processing: (1) ergonomic hazards, (2) biological hazards, (3) chemical hazards, (4) struck-by hazards, and (5) slip, trip, and fall hazards.

Based on a presentation of that evidence, OSHA obtained  an ex parte inspection warrant from a federal magistrate authorizing OSHA to conduct a broad-based inspection addressing the 3 hazards associated with the arc flash incident, the additional 6 areas suggested by the OSHA 300 Records review, and another 7 categories of hazards allegedly common to the poultry industry and identified in the then-existing Regional Emphasis Program for Poultry Processing Facilities for Region IV (the “REP”).  

The warrant application was based on two independent grounds. First, OSHA asserted that this specific evidence of suspected violations of OSHA requirements in 9 of the 16 areas identified in the REP as common to the poultry processing industry justified an inspection of all 16 areas. Second, OSHA asserted that the REP constituted a neutral administrative scheme justifying a comprehensive inspection because it stated: that “all unprogrammed inspections will be expanded to include all areas required by this emphasis program.”

Mar-Jac promptly filed an emergency motion to quash the inspection warrant. Had Mar-Jac simply filed a motion to quash the warrant, OSHA could have proceeded with the inspection, with the assistance of a federal marshal. By the time the motion was eventually briefed and heard, OSHA would have completed the on-site inspection, the case would have become moot, and the employer would have been left in the difficult position of pursuing a motion to suppress evidence before the Review Commission. The U.S. Supreme Court has stated that “a magistrate’s determination of probable cause should be paid great deference by reviewing courts.” Illinois v. Gates, 462 U.S. 213, 236 (1983)

The issuing magistrate judge held a hearing at which time OSHA introduced evidence beyond that initially included with the warrant application. Despite that additional evidence (which later caused a judge on the 11^th Circuit to issue a concurring opinion stating that “the case is a close one”) the magistrate issued a Report and Recommendation, adopted by the district court, granting the motion to quash. The district court held that the specific evidence of suspected violations was only adequate to provide probable cause for a warrant limited in scope to the 3 hazards associated with the arc flash incident and OSHA 300 Recordkeeping. The district court also held that the REP was not a neutral administrative scheme. Despite the REP language stating that “all unprogrammed inspections will be expanded to include all areas required by this emphasis program,” there was other language in the REP that gave the Area Director the ability not to conduct an inspection or to limit its scope due to “significant resource implications.” The court found this flexibility akin to the unbridled discretion that the Fourth Amendment is designed to prevent. Rather than seeking a narrower warrant, OSHA chose to pursue an appeal. The 11^th Circuit affirmed the district court’s order quashing the inspection warrant.

On appeal, OSHA asserted that the district court improperly quashed the inspection warrant with respect to the five hazards related to the OSHA 300 Records: (1) ergonomic hazards; (2) biological hazards; (3) chemical hazards; (4) struck-by hazards; and (5) slip, trip, and fall hazards. OSHA did not appeal the district court’s holding that neither of OSHA’s legal arguments supported a warrant that exceeded the scope of the electrical incident and the OSHA 300 Records.

In the landmark case of Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978), the U.S. Supreme Court held that the Fourth Amendment requires OSHA to obtain an administrative inspection warrant before entering an employer’s facility to conduct an inspection over the employer’s objection. The Court also held that probable cause necessary to obtain an administrative inspection warrant may be established by showing either: (1) specific evidence of an existing violation, which has been interpreted to mean “specific evidence sufficient to support a reasonable suspicion of a violation;” or (2) that reasonable legislative or administrative standards for conducting an inspection are satisfied with respect to a particular establishment.

In this case, OSHA initially attempted to rely on the absolute number of reported injuries allegedly involving ergonomic hazards, biological hazards, chemical hazards, struck-by hazards, and slip, trip, and fall hazards occurring over a period of three plus years at a facility with approximately 1,000 employees. It appears that, during the hearing, OSHA introduced additional evidence attempting to show the rate of these injuries at Mar-Jac’s facility was higher than average. Future warrant applications can be expected to reflect more of that type of analysis, which suggests the time is ripe for a challenge to re-examine the expectation of privacy cases and OSHA’s routine requests for OSHA 300 Records in the case of certain types of non-programmed inspections.

As the U.S. Supreme Court stated in Barlow’s:

The critical fact in this case is that entry over Mr. Barlow's objection is being sought by a Government agent. Employees are not being prohibited from reporting OSHA violations. What they observe in their daily functions is undoubtedly beyond the employer's reasonable expectation of privacy. The Government inspector, however, is not an employee. Without a warrant he stands in no better position than a member of the public. What is observable by the public is observable, without a warrant, by the Government inspector as well. The owner of a business has not, by the necessary utilization of employees in his operation, thrown open the areas where employees alone are permitted to the warrantless scrutiny of Government agents. That an employee is free to report, and the Government is free to use, any evidence of noncompliance with OSHA that the employee observes furnishes no justification for federal agents to enter a place of business from which the public is restricted and to conduct their own warrantless search.

We are not aware of an employer that posts its OSHA 300 logs in a location open to the general public.