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            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).  In re Establishment Inspection of Mar-Jac Poultry, Inc., N.D. Ga. No. 16-0192, report and recommendations 8/5/16.  The recommendation now goes to the District Court Judge, who will consider any objections OSHA wishes to make before deciding whether to accept or reject the recommendation.  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.

            An accident involving a maintenance technician working on an electrical panel occurred in February at the poultry plant:  because the injuries required hospitalization, the plant was required to (and did) report it to OSHA.  (The employee recovered, and has since returned to work.)  The REP called for all incident- or complaint-related inspections at poultry plants to be expanded to comprehensive investigations, subject only to "significant resource implications."  Accordingly, when this injury report came in, 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 electrical arc incident concerned a relatively isolated part of the plant.  The Area Director sought, and was granted, a warrant authorizing the expanded expansion:  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 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 1 or 2 each year.  This left the Area Director with no rules or guidance about which employers to select. 

The Magistrate concluded 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.  Two other court decisions figured prominently in the Magistrate's reasoning:  Sarasota Concrete, in which the Eleventh Circuit had held that an employee complaint was not a sufficient basis for OSHA to inspect every aspect of the employer's operation; and Crider Poultry, in which a District Court in Georgia had quashed an OSHA inspection warrant, finding that a local emphasis program (LEP) focused on sanitation and a national emphasis program (NEP) on amputations did not supply probable cause to support the expansion of an unprogrammed inspection.  (Larry Stine represented the employer in Crider as well.)

This recommendation is important because it reminds OSHA 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 they have reason to believe that OSHA standards have been violated.  In this case, the Magistrate found, OSHA had probable cause to believe there might be violations of standards relating to electrical panels, based on the reported injury; and potential violations of the lock-out/tag-out (LOTO) policy, so that those might be inspected:  but the REP did not supply probable cause to expand the scope of the inspection. 

The Magistrate also found that the OSHA 300 logs, which list recordable workplace injuries, did not supply probable cause.  "Nothing in Crider Poultry supports a conclusion that the mere presence of an injury on an OSHA 300 form supports a full scale investigation of the hazard related to that injury," he wrote.

We believe this recommendation is well-reasoned, and the District Court should adopt it in full.  It will be an important protection for all employers against unreasonable, expansive (and expensive) inspections in the future.

Wimberly, Lawson, Steckel, Schneider & Stine

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