11th Cir. Deals a Big Blow to OSHA’s Inspection Authority

By Eric J. Conn and Lindsay A. DiSalvo

OSHA’s enforcement authority, specifically as it relates to the agency’s ability to expand an unprogrammed inspection beyond its original scope, has been limited, at least for employers in the Southeast.  Late last year, in United States v. Mar-Jac Poultry, Inc., the U.S. Court of Appeals for the 11th Circuit affirmed a district court decision to quash an administrative inspection warrant that would have permitted OSHA to expand an inspection of Mar-Jac Poultry, Inc.’s (“Mar-Jac”) poultry processing facility in Georgia, initiated as a partial scope inspection in response to a single, specific reported injury, to become a comprehensive inspection under a Regional Emphasis Enforcement Program. This decision is important for employers because OSHA’s inspection authority has generally been understood to be quite broad, and judges have generally deferred to OSHA when applying the applicable administrative probable cause standard to OSHA’s inspection authority.  But in Mar-Jac, the 11th Circuit determined that an unprogrammed inspection initiated as a result of a specific reported injury could not lawfully be expanded to include other areas of the facility, other hazards unrelated to the specific reported injury, and other aspects of Mar-Jac’s safety program, because the evidence presented by OSHA in support of its warrant application was inadequate to establish reasonable suspicion of the presence of violative conditions unrelated to the reported injury.

Background of the Case

OSHA decided to inspect Mar-Jac’s poultry processing facility in Georgia after the facility called OSHA to report a serious injury that resulted in an in-patient hospitalization on February 4. 2016.  The injury occurred on February 3rd, when an employee attempted to repair an electrical panel with a non-insulated screwdriver, resulting in an arc flash and serious burns to the employee.  After receiving the injury report, OSHA opened an unprogrammed inspection at the facility on February 8th.  At that time, OSHA asked the employer for consent to inspect both the hazards specifically related to the reported injury, and also to conduct a more comprehensive inspection of the facility pursuant to an active Regional Emphasis Program (“REP”) targeting the poultry industry.  Mar-Jac consented only to a partial inspection limited to the injury-related hazards.  As part of that limited-scope inspection, OSHA requested and Mar-Jac provided 3 years of the facility’s injury and illness recordkeeping logs (300 Logs).

Based on its review of the OSHA 300 logs, on March 31, 2016, OSHA applied to a federal district court for an administrative inspection warrant to expand the scope of the inspection at Mar-Jac’s facility to include six areas of concern common to poultry processing facilities, each potentially reflected on Mar-Jac’s logs and covered by the REP for the poultry processing industry:

  1. Injury and Illness Recordkeeping Issues;
  2. Ergonomic hazards;
  3. Biological hazards;
  4. Chemical hazards;
  5. Struck-by hazards; and
  6. Slip, trip, and fall hazards.

Based on the Poultry REP and the evidence in the OSHA 300 logs, a magistrate judge at the U.S. District Court for the Northern District of Georgia initially granted the application and issued to OSHA a broadly-worded warrant from a magistrate district court judge authorizing inspection of Mar-Jac’s plant to include not only the electrical accident but also the six areas of concern implicated by the OSHA 300 logs.  The employer moved to quash the warrant, and after a hearing in which additional evidence and testimony were offered by both parties, the same magistrate judge ultimately recommended the warrant be quashed. That recommendation was adopted by the Northern District of Georgia because the district court judge determined OSHA lacked reasonable suspicion for the presence of the violative conditions it asserted were supported by the injuries listed on the OSHA 300 Logs and the other hazards identified as common in the poultry industry according to OSHA’s REP directive.

Circuit Court’s Decision

The Department of Justice, on behalf of OSHA, appealed the district court’s order to the 11th Circuit, but only as to the hazards allegedly supported by the injuries listed on the facility’s OSHA 300 Logs.  OSHA asserted that it had provided sufficient evidence for those hazards to meet the standard for reasonable suspicion. But, in an unpublished decision, the 11th Circuit disagreed.  The federal appellate court agreed that OSHA’s standard to establish probable cause necessary to obtain an administrative inspection warrant is not as high of a bar as the police must show for a search warrant in the criminal context, but OSHA bears the burden of at least showing either:

  1. Specific evidence of an existing violation; or
  2. Reasonable legislative or administrative standards for conducting an inspection are satisfied.

Specifically, it is OSHA’s burden to establish probable cause by establishing at least a reasonable belief or suspicion that a violative condition exists or existed, through a presentation of specific evidence of the violative condition.  For an unprogrammed inspection, the Court explained, the scope of the inspection must “bear an appropriate relationship to the violation alleged by the evidence.”  Thus, an unprogrammed inspection initiated by a specific complaint that relates to a localized condition supports a limited scope for the inspection.  In this context, OSHA may conduct a full scope inspection only if there is some circumstance that justifies expanding the scope.  The Circuit Court determined that no such justification existed, and upheld the lower court’s decision to quash the expanded-scope warrant for several reasons.

First, the 11th Circuit determined that the district court had applied the appropriate legal standard; specifically, that the district court correctly applied the reasonable suspicion standard to the facts provided by OSHA in its warrant application.  OSHA largely relied on the information in the facility’s 300 Logs to support its warrant, and the district court determined this inadequate to show reasonable suspicion because the fact that an injury or illness is recordable does not establish a violation of any OSHA standard.

Second, the Circuit Court confirmed that the district court properly distinguished hazards from violations in determining whether the evidence provided by OSHA could meet the reasonable suspicion standard.  Specifically, the Court explained that the existence of a “hazard” may not establish the existence of a “violation,” and evidence to support the likely existence of a violation is what is necessary to establish reasonable suspicion.  In further support of this holding, the Court pointed to OSHA’s own framework for substantiating any violation of any specific standard or the general duty clause — a hazard in and of itself is insufficient to show a violation.  Thus, OSHA’s contention that employee injuries prove there must have been hazards present at the worksite is not, in and of itself, sufficient to establish reasonable suspicion of an OSHA violation.

Finally, the 11th Circuit found that the evidence OSHA provided to support the warrant was inadequate.  The Court held that:

“[t]he existence of injuries … does not necessarily mean that the injuries were caused by OSHA violations, or justify the issuance of an administrative warrant for evidence of OSHA violations.”

The information that could be discerned from the recorded injuries, although supportive of the belief of the presence of possible hazards, did not meet reasonable suspicion for the belief of the presence of possible violations, even with other evidence, like Mar-Jac’s citation history.  For example, in analyzing OSHA’s request to expand its inspection to include slip, trip and fall hazards, the Court explained that the existence of only seven slip, trip and fall type injuries listed on several years’ of prior 300 Logs was not sufficient evidence of violative conditions at a very large poultry processing facility with many employees.

The Court’s reasoning does indicate that there may be some cases in which 300 Logs could be sufficient to show reasonable suspicion of a violation, but found the content of the logs in this case did not do so.  Here, OSHA pointed to between 6 and 25 injuries on the facility’s 300 logs for each hazard of concern, but the Court held these were insufficient to establish a reasonable suspicion of a violation in a plant with more than 1,000 employees.

In a concurring opinion, one 11th Cir. judge opined that the case was “a close one,” and that to the extent a company’s injury rates exceed its industry’s average, it becomes more likely that injuries on OSHA logs can establish reasonable suspicion of (and probable cause to inspect) a broader scope of potential OSHA violations.

Impact on Employers

This case is significant because the Court’s findings put important limitations on OSHA’s broad inspection authority.  Specifically, the Court confirmed that there is a difference between “a hazard” and “a violation,” and highlighted that evidence of the presence of a hazard is insufficient to establish reasonable suspicion of the presence of a violation.  Thus, just because OSHA can present evidence of a hazard or a past injury, does not mean it will be successful obtaining a warrant to inspect that alleged hazard.  The Court made clear that reasonable suspicion of a violation must be shown, independent of an injury, to establish administrative probable cause to inspect.

This case also showed that information listed on injury and illness recordkeeping logs may not be sufficient to support OSHA’s effort to expand an inspection, even if several of the injuries included on the Log relate to similar types of hazards.  If OSHA wants to expand an inspection without the employer’s consent, it needs specific evidence of the presence of violative conditions, and injuries listed on a 300 Log may not be sufficient for that purpose.

Although this decision is only binding on the jurisdictions within the 11th Circuit (i.e., Alabama, Florida, and Georgia), its influence could be much more expansive.  Indeed, other courts and the Occupational Safety and Health Review Commission could reasonably rely on the well-reasoned arguments provided in this case for their own consideration of similar issues.

An employer’s decision whether to permit OSHA to expand its inspection scope or to demand and challenge a warrant can be a very difficult one, particularly as the standard for probable cause is easier for the OSHA to meet than the police.  But this case does identify some important limits on OSHA’s authority, and employers should consider reaching out to counsel to explore whether OSHA’s basis for expanding its inspection is legally sufficient.  In the meantime, check out Conn Maciel Carey’s OSHA Inspection Toolkit for tips and strategies to effectively prepare for and manage OSHA inspections, including the thorny issue of demanding an OSHA inspection warrant.

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