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When presented
with a request for an inspection, an employer
may either consent or request that OSHA obtain a
search warrant prior to the inspection. A
consent inspection is usually the better choice.
It is less troublesome, less costly and more
beneficial to the employer. Restricting the
Scope of the Inspection - Employers are free to
restrict the scope of their consent to the area
that is the subject of the inspection request.
For example, if an inspection is based upon an
employee complaint of the absence of guardrails
around a machine, the employer may limit a
safety inspection to that area. Any inspection
beyond the scope of the consent could be
considered involuntary and grounds for
overturning a subsequent citation. Further, an
inspection could be deemed involuntary even if
the employer provided consent, when the employer
has been misled by representatives of OSHA.
INSIST ON THE WARRANT? YES OR NO? To gain
perspective on the subject of inspection
warrants, here are three outlooks (Hard Line,
Hard Line Disagree, and Cooperation):
1. Hard Line - It may benefit an organization to
insist on the warrant. (a) The inspector may not
return and just walk away for good. (b) The
warrant may have a narrow scope. Many federal
judges draw narrow warrants strictly limited to
the specific complaint alleged in the affidavit
put before the judge. This scope may be narrower
than that accorded the OSHA inspector without a
warrant. (c) You’ll buy some time. The warrant
won’t be issued right away - in some cases,
inspectors wait as many as 30 days. If you now
have any existing hazards, you’ll have time to
remedy them and avoid a proceeding for fine. (d)
The risk is small. Because the settlement
process is the same whether a warrant has been
issued or not, there is little risk of greater
penalty for those who insist on a warrant.
2. Hard Line Disagree - Unless you have lots and
lots of problems, you’re just going to make it
harder and more expensive to fix minor problems.
Remember that inspectors are human, too. If it’s
a terrible time, tell him/her so and ask if
he/she can come back. 3. Cooperation - Always
let the inspector in and cooperate with the
inspector...except in certain extremely limited
circumstances.
So, what should you do? As always, it depends on
your situation. We suspect that most
organizations will let the inspector in, but it
may someday help to know you don’t have to. THE
“PLAIN VIEW” EXCEPTION. Although the scope of
the consent may be limited, employers should be
aware that under the “plain view” exception, any
violations observed in an area for which consent
has been given may be the subject of a citation,
even though outside the scope of the consent.
For example, if an OSHA inspector observes
imminent danger when walking to the machine area
you consented to have inspected, they may cite
your organization. A corollary of this doctrine
is the “open fields” exception, under which a
citation based upon observations from open
terrain will be upheld, even without consent of
a warrant.
INSPECTIONS BY WARRANT. Under the U.S. Supreme
Court decision in Marshall V. Barlow’s, Inc.,
you have a constitutional right to demand that
OSHA obtain a warrant prior to initiating an
inspection. Such a warrant must be based on
probable cause, that is, a reasonable basis for
the selection of the facility. If OSHA, when
faced with a request, fails to obtain a warrant,
or if the warrant is not based on probable
cause, you can refuse entry into the facility
and any citation based upon an invalid warrant
will be vacated.
WARRANT BASED ON EMPLOYEE COMPLAINT. An
application for a warrant based upon an employee
complaint probably will be considered by a court
as probable cause for an inspection; however,
the inspection would be limited to the
violations which formed the subject of the
complaint. The OSHA Review Commission - the
administrative judicial body - and several
courts have adopted this position. On the other
hand, some courts have permitted a complete
“wall-to-wall” inspection based upon a single
WARRANT BASED ON PROGRAM. A warrant can be
issued to support a general inspection based
upon OSHA administrative procedures for
programmed inspections so long as both the
procedure and its application to the employer
are explained in the warrant application. In
addition to specifying the reason for the
request inspection, an application for a warrant
must describe the activities that OSHA intends
to perform during the course of the inspection.
WARRANT HEARING. Under OSHA regulations, a
warrant may be obtained ex parte, that is,
without employer participation. Nevertheless,
employers may request a hearing on a warrant
application, because courts have discretion to
grant such a hearing. Moreover, even when an ex
parte warrant application is granted, an
employer may challenge the propriety of the
warrant before or after the inspection. The
employer may refuse to allow entry into the
workplace and may contest the warrant either by
moving to quash it or by defending against the
civil contempt motion OSHA will likely file.
Alternatively, the employer may allow the
inspection to go forward and subsequently
contest the validity of the warrant before the
OSHA Review Commission.
EXAMINE THE WARRANT CAREFULLY. Before granting
entry, employers review carefully a warrant
secured by OSHA to determine whether it complies
with the legal requirement of “probable cause,”
that is, that there exists a reasonable basis to
inspect the premises. In addition, the employer
should determine that the warrant: 1) Describes
the scope of the inspection in detail, and 2)
Contains sufficient information to allow a
determination of probable cause. The careful
review - by a knowledgeable member of management
is essential, as any evidence obtained in an
inspection conducted in violation of the warrant
requirements may not be introduced in any
subsequent proceeding.
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