In a decision published August 5, 2016, a U.S. District Court magistrate has recommended that a warrant OSHA sought to conduct a comprehensive inspection of a North Georgia poultry plant be quashed (invalidated). The inspector had arrived at the plant in response to a reported employee injury. Then things got interesting: rather than simply investigate the accident that resulted in the employee’s injury, the Area Director decided to field an entire team of inspectors, equipped to examine every aspect of the plant’s operations, including but not limited to ergonomics, process safety management, and even hexavalent chromium exposure, to conduct a comprehensive inspection of the plant even though the injury incident concerned a relatively isolated part of the plant. The Area Director sought, and was granted, a warrant authorizing the expanded search. However, upon learning the warrant had been issued, Wimberly & Lawson senior principal Larry Stine, on behalf of the employer, filed an emergency motion to quash the warrant, and following a hearing before the U.S. Magistrate Judge, that motion was granted.
This is the second time that Wimberly Lawson has successfully prevented OSHA from unlawfully expanding an inspection of a poultry plant. Apparently, OSHA needs to be reminded that it is subject to the Fourth Amendment’s limits on search and seizure. The Fourth Amendment states that no warrant shall issue except on “probable cause:” for OSHA, this means that they must have a reasonable belief not just that hazards exist in the workplace – there are hazards in all workplaces – but that they have reason to believe that OSHA standards have been violated. In this case, the Magistrate found, OSHA had probable cause to believe that there might be violations of standards relating to the possible causes of the employee’s injury, but not for an expanded inspection of the entire plant. The Magistrate Judge also found that the OSHA 300 logs, which list recordable injuries that occur in the workplace, also did not, without more, supply probable cause to believe that violations had occurred.
This is a significant decision because the recommendation invalidates OSHA’s Regional Emphasis Program (REP) for Poultry Processing Facilities, announced last October, as the basis for expanding an unprogrammed, incident-related inspection to a comprehensive, or “wall-to-wall,” inspection covering the entire plant.
As an example of what might happen if OSHA is allowed to expand an inspection triggered by an employee injury, Tyson Foods was recently cited by OSHA for $263,498 in proposed fines after OSHA inspectors found multiple safety violations in an inspection triggered by the amputation of any employee’s finger.
Practice Tip: If an OSHA Inspector shows up at an establishment, the company has the right to get counsel involved, and it should contact experienced counsel immediately. The failure to do so may prove to be very expensive.
©2016 Wimberly Lawson