Imagine if a police officer came to your home, knocked on your door, and said he just happens to be in your neighborhood and wanted to come inside your house, poke his nose into all of your closets, and dig around in your cabinet drawers to see if he can find evidence that you are breaking any laws for which you could be charged. Do you consent to the search? While you could allow the police to search your home for no good reason, I’m guessing most of you would tell the police officer that you would not allow him to enter your home without a search warrant. And that is because you are probably aware of your constitutional protection against unreasonable search or seizure by the government without probable cause.
Well, that same protection applies to the workplace too. Many people do not realize that an employer actually has the right to tell an OSHA compliance officer to get a warrant before being allowed to conduct an inspection on their site. In fact, the Supreme Court ruled in the case of Marshall v. Barlow’s, Inc. in 1978 that OSHA may not conduct warrant-less inspections unless the employer first consents. OSHA may, however, inspect the site if the employer does not object (consents) to the search, or after OSHA acquires a judicially authorized search warrant that is issued based upon administrative probable cause (like the random selection of a company covered under one of the national emphasis programs) or upon credible evidence of a potential OSHA violation (such as a valid employee complaint).
So, why would an employer tell an OSHA compliance officer they must go get a warrant to conduct an inspection? The “benefits” of doing so could include buying some time before the inspector comes back, allowing the company time to clear up any hazards and therefore avoid citations for existing violations. Sometimes it can take several days, even weeks, for an inspector to obtain a warrant. I am also aware of a few rare cases where OSHA left the premises after being told to go get a warrant and they never came back to inspect. However, if that is your strategy for managing safety and health for your company, you probably ought to get into a different field. I also saw some statistics published in a magazine that showed companies who demanded OSHA get a warrant and were subsequently inspected typically received more citations and stiffer monetary penalties, on average, than companies who consented to the inspection without asking for a warrant. While correlation does not imply causation, that is certainly something you want to keep in mind before sending OSHA away.
But there was a time many years ago, when yours truly was working as the Corporate Safety Director of a very large corporation, that I told an OSHA compliance officer to go away and not come back without a warrant. That occurred after a Federal OSHA compliance officer showed up at one of our largest manufacturing facilities, and I (acting as the company representative) asked him why he was there to inspect. He told me their office had received an employee complaint about dirty respirators in the paint shop. Once he told me what triggered his visit, I invited him to accompany me to the paint shop right then to inspect for dirty respirators. However, the compliance officer quickly informed me that he would instead be conducting a “full blown, wall-to-wall comprehensive inspection” of our entire operations, including all OSHA-mandated programs, procedures, and training records.
Since the site consisted of numerous buildings and we had over 3,500 employees working with hundreds of pieces of complex equipment, I was in no mood to allow an expanded OSHA inspection that could last several days. So, I told him once again that I’d escort him to the paint shop where the complaint was centered to conduct a limited scope inspect, but that we would not be conducting a comprehensive inspection of our entire site and all OSHA programs. He was visibly agitated and insisted on doing the comprehensive site inspection, citing “his boss’s policy” to conduct a wall-to-wall inspection while he was there since they had not conducted an inspection at the facility during the past five years. At that time, I informed him that if he was not willing to limit the scope of his inspection to the complaint item, his agency would have to go get a warrant to inspect.
Sure enough, the same compliance officer and his supervisor returned to that facility about five months later with a warrant in hand. When I asked to see the warrant, he gave me a copy, and on there I read where the judge (or actually a magistrate in this case) issued the warrant to conduct an inspection at the site. But, the stated scope of the inspection was limited to the investigation of “conditions related to the complaint item in the paint shop and any other apparent OSHA violation in plain sight”. So, after clarifying the scope of the inspection, I escorted the compliance officer out to the paint shop, where he conducted the limited inspection for dirty respirators, just like I invited him to do a few months earlier. Wish he had just done that when he arrived the first time, and saved us all a lot of unnecessary grief (on a side note; no citations were issued). Once the inspection was complete, I felt good knowing that our constitutional right to protection against a warrant-less search did exist, and we were able to exercise that right to protect ourselves from one OSHA compliance officer’s attempt to expand the inspection without reasonable cause.
Keep in mind that I am NOT an attorney, so this blog post should not to be construed as me giving legal advice to anyone. I am simply sharing my experience about what happened in this case. Furthermore, you should only take similar action in cases like this after consulting with your own attorney. And you should also be aware that if you make it a habit to tell OSHA to get a warrant, they could obtain an anticipatory warrant before they come to your site to inspect. Also, there are situations where OSHA would not be required to get a warrant to conduct an inspection of your operations; this could include when a general contractor working at a construction site or a host employer at a military base grant OSHA access to inspect at their site where your employees happen to be working.
Have you or anyone you know of ever told an OSHA compliance officer they had to get a warrant to inspect? If so, why did you/they choose to do that? And how did that work out? If you would like to share your experience or if you have any comments you’d like to share about this topic, scroll down to the “Comments” section of this post. We also offer you an opportunity to learn more about OSHA and their policies via our advanced online “Introduction to OSHA” course. And last but not least, I encourage you to Share this Blog post with others in your Network who could benefit from reading this information. Thanks – Curtis