Federal Court Adopts Magistrate’s Recommendation That OSHA Inspection Warrant Be Quashed

As we reported in an earlier blog post, a federal magistrate judge recommended that a warrant OSHA sought to conduct a comprehensive inspection of a North Georgia poultry plant be quashed (invalidated). In a follow-up to that post, we are pleased to report that on November 2, 2016, U.S. District Court Judge William C. O’Kelley (a Nixon appointee) of the Northern District of Georgia approved and adopted Magistrate Judge J. Clay Fuller’s August 5, 2016 Report and Recommendation, which found that the warrant should be quashed because OSHA failed to use Constitutional methods to select Mar-Jac for an intensified inspection after it reported an injury. This decision is significant because invalidates OSHA’s Regional Emphasis Program (REP) for Poultry Processing Facilities, announced in October 2015, as the basis for expanding an unprogrammed, incident-related inspection to a comprehensive, or “wall-to-wall,” inspection covering the entire plant.

    In his opinion, Judge O’Kelley examined, and rejected, each of OSHA’s objections to the magistrate judge’s Report and Recommendation. For example, OSHA argued that the REP was a neutral plan, but the judge pointed out that it allowed the Area Director unbridled discretion to select targets, and therefor that the purported neutrality was an illusion. The Area Director’s testimony was liberally cited in support of this conclusion. OSHA’s argument that the REP’s instruction to expand all unprogrammed inspections, subject only to resource allocation considerations, was exposed as a sham, since the Area Director confirmed that he had the resources to conduct at most one or two comprehensive poultry plant inspection per year.

The judge noted that OSHA had many legitimate, neutral criteria at its disposal for selecting candidates for inspection that did not repose all discretion in a single official, and observed that while probable cause sufficient to support criminal prosecution is not required, the Constitution does require reasonable suspicion for an administrative search, and that was wanting here. He also rejected OSHA’s contention that the 300 logs of injury and illness were sufficient probable cause, noting (correctly) that those logs contain information about incidents, but nothing at all about causation. He also noted that Mar-Jac already had undergone an intensive, 4-month-long comprehensive inspection, in 2009.

The district Court’s ruling is important for all employers because it reminds OSHA that it is subject to the limits on search and seizure enshrined in the Fourth Amendment to the U.S. constitution. We are pleased to have been able to put our client’s case before the court, and that the court has approved the Magistrate’s Report and Recommendation to quash the warrant.

Questions? Need more information?

Contact Larry Stine at jls@wimlaw.com or (404) 365-0900.

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©2016 Wimberly Lawson

An OSHA Inspector Walks into a Poultry Plant…. And Must Walk Back Out Because She Does Not Have A Valid Warrant

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

OSHA ALERT: New Reporting and Recordkeeping Rules Require Public Reports of Injuries and Illness

By J. Larry Stine (jls@wimlaw.com)

On May 11, 2016, OSHA issued a final rule to revise its Recording and Reporting Occupational Injuries and Illnesses regulations. The final rule requires employers in certain industries to electronically submit to OSHA injury and illness data that employers already are required to keep under existing OSHA regulations, and, in some cases, to disclose such information to their employees and the general public. The frequency and content of these compulsory submissions depends on the size and industry of the employer. Data submitted will be published on a publicly accessible Web site. Only the identity of the individual employees affected will be shielded from disclosure.

The final rule also requires employers to remind employees of their right to report work-related injuries and illnesses free from retaliation; clarifies the existing implicit requirement that an employer’s procedure for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employees from reporting; and incorporates the existing statutory prohibition on retaliating against employees for reporting work-related injuries or illnesses. Existing recordkeeping regulations are amended to clarify the rights of employees and their representatives to access the injury and illness records.

The entire rule takes effect January 1, 2017, though portions become effective as soon as August 2016.

OSHA requires employers with more than 10 employees in most industries to maintain records of occupational injuries and illnesses using an OSHA Form 300, the “Log of Work-Related Injuries and Illnesses.” Employers also must prepare a supplementary OSHA Form 301 “Injury and Illness Incident Report” with additional details about each case recorded on the OSHA Form 300. At the end of each year, employers must prepare a summary report of all injuries and illnesses on the OSHA Form 300A, which is the “Summary of Work Related Injuries and Illnesses,” and post the form in a visible location in the workplace.

The new rule amends OSHA’s recordkeeping regulations to require electronic submission of this information. Establishments with 250 or more employees will have to electronically submit information from Forms 300, 300A, and 301 to OSHA on an annual basis. Establishments in designated industries (a long list, including agriculture, construction, manufacturing, transportation, and health care) with 20 or more employees, but fewer than 250 employees, in certain designated industries, and others upon notification from OSHA, to electronically submit information from their part 1904 annual summary (Form 300A) to OSHA on an annual basis.

Once the rule is in effect, any member of the public will be able to search a data base by employer or establishment and view the all of a company’s records of workplace injuries and illness. OSHA stresses that the electronic submission requirements do not add to or change any employer’s current obligation to create and retain injury and illness records, but the public disclosure aspect is definitely new, and Web access makes it infinitely easier for anyone to search. (In their notice, OSHA states that this will make it easier for investors to identify industries with low injury rates; they fail to mention that it also will facilitate the recruitment of plaintiffs by lawyers assembling class actions.)

J. Larry Stine is a Senior Principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider & Stine, P.C. He can be reached at (404) 365-0900 or jls@wimlaw.com.

©2016 Wimberly Lawson