Demanding a Warrant for an OSHA Inspection

May 2, 2014 - Would you consent to a search of your entire household by a police officer who got a complaint about your barking dog but decided he wanted to poke his nose in all your closets and drawers to determine if you were breaking any other laws? I bet most of you would not consent to the search because you are aware of your constitutional protection against unreasonable search and seizure without probable cause. Well, that same protection applies to the workplace too.
Many people do not realize that a company has the right to tell OSHA 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 warrantless inspections without an employer's consent. OSHA may, however, inspect the site after acquiring a judicially authorized search warrant based upon administrative probable cause (like the random selection of a company covered under one of the national emphasis programs) or upon evidence of a violation (such as a valid employee complaint).
So why would a company tell OSHA they must get a warrant to inspect?  The “benefits” of doing so could include buying some time before the inspector(s) came back, allowing the company time to clean up 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 rare case or two where OSHA left 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’s employees, you probably ought to get into a different field. Also I once saw some statistics OSHA produced that showed companies who demanded a warrant and were subsequently inspected under the warrant 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 one fact that should be kept in mind before sending OSHA away.
Once upon a time, many years ago, I was hired as the new Corporate Director of OSHA Compliance for a very large corporation that had a horrible reputation with OSHA, in part because of their abuse of this provision. If a compliance officer showed up at any one of their hundreds of facilities to conduct an inspection for any reason, it was standard procedure to tell the OSHA compliance officer they could not inspect without a warrant. And if the compliance officer came back with a warrant, the validity of the warrant was challenged in court. And if the warrant was upheld by the court, then any citations that were issued as a result of the subsequent inspection were vigorously contested in court, in a couple of cases all the way up to the US Supreme Court!  But one day the corporate powers decided they would rather direct their resources towards complying with OSHA regulations instead of fighting them. And that was why I, who was working as a safety officer in one of the state OSHA consultation programs at the time, was hired as their new corporate safety director.
While working for that company, I personally told OSHA to go get a warrant only one time. Why? Because not long after I went to work for that company, a compliance officer showed up at one of our largest facilities, and when I (the company representative) asked him why he was there to inspect, he told me they 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; but he quickly informed me that he would be conducting a “full blown, wall-to-wall comprehensive inspection” of the entire site. 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 inspection that could last several days for no good reason. So I told him once again that I’d escort him to the paint shop where the complaint was centered to inspect, but that we would not be conducting a comprehensive inspection of our entire site. He was visibly angered and insisted on doing the comprehensive site inspection, citing “his boss’s policy” that he should 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. So I told him that if he was not willing to limit the scope of his inspection to the complaint item he would have to go get a warrant.
Sure enough, the same compliance officer 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 there I read where the judge (or actually a magistrate in this case) issued the warrant to inspect, but the scope of the inspection was limited to the investigation of “conditions related to the complaint item in the paint shop and anything else in plain sight”. So the compliance officer and I walked out to the paint shop where he conducted the inspection for dirty respirators just like I invited him to do a few months earlier, and then he left half an hour later (on a side note; no citations were issued).  Wish he had done that the first time he showed up! Over the next few years we also had compliance officers at other sites show up because of an employee complaint and demand to expand the inspection, but we always held firm. Some would even threaten to go get a warrant if we did not let them inspect the whole site, but they decided to stick to the scope of the original item when they realized we were not going to roll over and let them have their way.
Now keep in mind that I am NOT an attorney, so I am only sharing my experiences in this matter and nothing more. This post should not to be construed as me giving legal advice to anyone. 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 inspect. Also, there are situations where OSHA would not have to get a warrant to conduct an inspection; this could include when a compliance officer is able to view workers from a public site, as well as when site management or other employer working at a military base or a construction site grant OSHA access to inspect.
What became of that company where I used to work?  Vast improvements were made during my tenure there because we were able to focus on improving our safety and health programs instead of butting heads with OSHA every time they showed up at one of our plants. In fact, we cut our corporate OSHA incident rate by nearly 60% in a three year period, down to below industry averages for all of our sectors. And when OSHA did show up at one of our plants, they were always invited to inspect within the scope of the type of inspection that prompted their visit. But we did not submit to facilitating a baseless inspection that would have been a drain of our time. And that company continued to make improvements since I left; in fact, last I heard they even had a few plants obtain OSHA VPP status! So the corporate decision made many years ago to strive to obtain (and ultimately exceed) compliance with OSHA standards paid off for everyone involved. But it was good to know that our constitutional right to protection against a warrantless search did exist and we were able to exercise that right to protect ourselves from one compliance officer’s attempt to expand the inspection without reasonable cause.
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, please feel free to share that information by clicking here to see the “Comments” box. And last but not least, I encourage you to Share This Blog with Others in Your Network who might enjoy reading this post. 


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