United States: Federal Court Limits Scope Of OSHA Inspection Authority

On October 9, 2018, the U.S. Court of Appeals for the Eleventh Circuit affirmed a district court decision to limit the scope of an inspection sought by the Occupational Safety and Health Administration (OSHA). In this significant decision for employers, the court of appeals held that OSHA may not conduct a facility-wide or "wall-to-wall" inspection based on a reported accident and the employer's OSHA 300 logs alone.1

Background

The Occupational Safety and Health Act of 1970 (29 U.S.C. §651 et seq.) established workplace safety standards and delegated broad authority to the Secretary of Labor to enforce those standards. Among other provisions, the Act authorizes programmed or periodic inspections based on neutral criteria, and unprogrammed inspections based on specific evidence of a particular violation of a safety standard. If the Occupational Safety and Health Administration ("OSHA") seeks to, for example, expand an inspection, it must establish probable cause to do so. In this context, "probable cause" is a less rigorous standard from that used in criminal matters. For inspections, probable cause is established if OSHA can demonstrate either (1) specific evidence of an existing violation, or (2) that the inspection was conducted based on neutral criteria contained in legislative or administrative standards, such as a national or regional emphasis program ("NEP" or "REP").

Facts and Procedural History

Mar-Jac Poultry, Inc. is a poultry processing company based in Georgia. In 2016, a Mar-Jac employee was injured while making an electrical repair with a non-insulated screwdriver, resulting in the employee's hospitalization. Mar-Jac reported the incident as required under OSHA regulations. OSHA sent a team to Mar-Jac's facility to conduct an unprogrammed inspection. During their visit, the investigators requested an inspection not just of the electrical hazards related to the accident, but of the entire facility as well (a "wall-to-wall" inspection). Mar-Jac permitted inspection of the accident site and the tools involved, but did not consent to OSHA's inspection of additional areas.

OSHA then submitted an application to a federal magistrate judge seeking a judicial warrant to inspect the entire facility. The scope of OSHA's warrant included not only hazards implicated by the accident but also alleged hazards identified in the company's OSHA logs, and the hazards that OSHA's regional emphasis program had identified as being of particular concern within the industry.2 OSHA sought the inspection based on two grounds: (1) that the investigators had personally observed hazards relating to the electrical incident, and (2) that an inspection of the company's OSHA 300 logs allegedly revealed six hazards common to poultry processing facilities.

The magistrate judge initially granted the application for the warrant in its entirety, and Mar-Jac promptly filed an emergency motion to quash the inspection warrant. Following a hearing, the magistrate judge issued a report recommending that the motion be granted in favor of Mar-Jac because OSHA had not demonstrated probable cause to expand the scope of the inspection. The district court then adopted the magistrate judge's report and confirmed that the inspection warrant should be quashed.3 The district judge determined that OSHA could not expand the inspection based upon the injuries identified in the OSHA 300 logs, and that the REP also did not give OSHA the authority to expand the inspection at the company's facility. OSHA did not seek a new inspection warrant, but instead appealed the district court's decision to the Eleventh Circuit.

Decision and Discussion

On appeal, OSHA primarily argued that it was being held to a higher standard of proof than was appropriate, and that the existence of a "hazard" is an indication of a "violation" that justified a full-scale investigation. The district court had rejected OSHA's original argument supporting a wall-to-wall inspection based on the REP, which OSHA did not appeal. OSHA seems to have acknowledged by its failure to appeal the issue that an REP or NEP does not permit OSHA to expand the scope of an inspection that started as an accident-based inspection. The Eleventh Circuit, therefore, focused its decision on OSHA's ability to establish probable cause based on specific evidence alone.

The appellate court rejected OSHA's argument that a "hazard" is an indication of a "violation," holding that a recordable injury or illness alone does not show that such an injury resulted from a violation of an OSHA standard. The court of appeals found that the existence of a "hazard" does not necessarily establish the existence of a "violation," and that it is a violation that must be shown to establish adequate cause in a warrant application.

The court also was not persuaded by OSHA's assertion that the company's OSHA 300 logs provided additional evidence of potential violations; instead, the court stated that the vague descriptions (with regard to both the nature of the injury and the department in which it occurred) and the infrequency of injuries reported in the logs failed to provide reasonable suspicion that violations were likely to be found. The court noted also that a review of the employer's previous citations from the last seven years demonstrated that no citations were issued for violations regarding ergonomic, biological, struck-by, or slip and fall hazards.

Ultimately, the court affirmed the district court's decision, and blocked OSHA's effort to expand the inspection.

Scope and Limitations

The court's decision is a limit to OSHA's investigatory power within the Eleventh Circuit and potentially nationwide. OSHA is not entitled to unrestricted access to a company's facility based on a reported injury, or based solely upon information in the OSHA injury and illness logs. In addition, although an employer may have recorded injuries on its OSHA 300 logs, the injuries do not necessarily mean that the employer violated an OSHA standard. However, the decision from the appeals court should not be interpreted to mean that a court will never issue a warrant based on incidents recorded in an employer's OSHA 300 logs.

Nonetheless, this is an important decision for employers. OSHA must establish probable cause to expand an accident-based inspection. OSHA cannot expand the inspection based solely upon a national or regional emphasis program. And OSHA cannot expand an inspection simply by referring to alleged hazards identified in OSHA 300 logs. If OSHA seeks to expand an accident-based inspection, an employer should carefully consider its options to appropriately limit the scope of the inspection.

Footnotes

1 United States v. Mar-Jac Poultry, Inc., No. 16-17745 (11th Cir. Oct. 9, 2018).

2 In 2016, OSHA promulgated a Regional Emphasis Program (REP) for Poultry Processing Facilities, which identified 16 categories of hazards that were of particular concern in poultry processing facilities in Georgia and neighboring states. The REP also provided neutral criteria that could lead to a randomly generated, "programmed" inspection of a particular facility.

3 USA v. Mar-Jac Poultry, Inc., No. 2:16-CV-192 (N.D. Ga. 2016).

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Ogletree, Deakins, Nash, Smoak & Stewart
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Ogletree, Deakins, Nash, Smoak & Stewart
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions