In a detailed Order published November 2, 2016, U.S. District Court Judge William C. O'Kelley of the Northern District of Georgia quashed (invalidated) a warrant OSHA wanted so that it could conduct a comprehensive inspection of a North Georgia poultry plant.  In a 15-page opinion, the Judge 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 Poultry for an intensified inspection after it reported an injury.  This decision is significant because it 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.

This case arose following a February 2016 accident involving a maintenance technician working on an electrical panel.  (The employee recovered, and has since returned to work.)  Because a recent rule change requires employers to alert OSHA in the event of any workplace injuries that require hospitalization, the employer promptly notified OSHA.  OSHA's REP called for all incident- or complaint-related inspections at poultry plants to be expanded to comprehensive investigations, subject only to "significant resource implications."  On the strength of the REP, the Area Director sent a team of inspectors, equipped to examine every aspect of the plant's operations, not just the area surrounding the electrical panel where the accident occurred.  When the employer pushed back, the Area Director secured a warrant authorizing the expanded inspection.  Wimberly & Lawson senior principal Larry Stine, on behalf of the employer, filed an emergency motion to quash the warrant, short-circuiting the proposed comprehensive inspection.

The Magistrate conducted a hearing, at which the Area Director testified that it was really up to his sole discretion to select targets for comprehensive inspections.  The REP ordered Area Directors to expand all unprogrammed inspections, but the reality is that OSHA only has the resources to conduct one or two each year.  This left the Area Director with no rules or guidance about which employers to select. 

The Magistrate concluded that this was precisely the sort of "unbridled discretion" that the Supreme Court, in Marshall v. Barlow's, had found to violate the prohibition against unreasonable search and seizure in the Fourth Amendment to the U.S. Constitution.  In his opinion, Judge O’Kelley examined, and rejected, each of OSHA’s objections.  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 therefore the purported neutrality was an illusion.  The judge 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.

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.

Wimberly, Lawson, Steckel, Schneider & Stine

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