On December 29, 1970 Congress passed the Occupational Safety and Health Act. The purpose of this act as quoted from the act itself is: “To assure safe and healthful working conditions for working men and women; by authorizing enforcement of the standards developed under the Act; by assisting and encouraging the States in their efforts to assure safe and healthful working conditions; by providing for research, information, education, and training in the field of occupational safety and health; and for other purposes.” This act requires employers to provide workplaces that are free from serious recognized hazards and to comply with occupational safety and health standards. The mission of OSHA is to save lives, prevent injuries, and protect the health of America’s workers. Since 1970 OSHA has grown to over 1,130 inspectors in states under federal OSHA jurisdiction. Personnel also includes investigators, engineers, physicians, educators, standards writers and other support personnel spread over more than 200 offices throughout the country (OSHA FAQ) .
Since 1970 workplace fatalities have been reduced by half. Even with this decline fourteen Americans are killed on the job every single day of the year. In addition, tens of thousands die every year from workplace disease and over 4.6 million workers are seriously injured on the job (OSHA FAQ). The Department of Labor which conducts the OSHA inspections wants workers to feel safe on the job. Workers have rights that include the right to request an inspection, have a representative present at the inspection, have dangerous substances identified, be informed about exposure to hazards, and have employer violations posted at the worksite (OSH Act).
In section 5 of the Occupational Safety and Health Act of 1970 there is a set of duties that employers and employees are supposed to follow in order to be best assisted by OSHA. This General Duty Clause states: “(a) Each employer – (1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees; (2) shall comply with occupational safety and health standards promulgated under this Act. (b) Each employee shall comply with occupational safety and health standards and all rules, regulations, and orders issued pursuant to this Act which are applicable to his own actions and conduct.”
In section 8 of the OSH Act regarding Inspections and Investigations it states: “(a) In order to carry out the purposes of this Act, the Secretary, upon appropriate credentials to the owner, operator or agent in charge is authorized- (1) to enter without delay and at reasonable times any factory, plant establishment, construction site or other area, workplace or environment where work is performed by an employee of an employer; and (2) to inspect and investigate during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, any such place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, and to question privately any such employer, owner operator, agent or employee.”
In Marshall v. Barlow’s Inc., 436 U.S. 307 (1978), this case involved the constitutionality of a provision in the Occupational Safety and Health Act that permitted inspectors to enter premises without a warrant to inspect for safety hazards and violation of OSHA regulations. The Court held that this provision violated the Fourth Amendment. In The Oxford Companion to the Supreme Court of the United States, commentary is given on this case. One issue in the case was whether a warrant was required. The Court had previously held that no warrant was required to inspect either the premises of a liquor licensee or a licensed gun dealer’s storeroom. Distinguishing these earlier cases because each concerned a closely regulated industry, the Court in Barlow’s concluded that requiring warrants in the OSHA context would not “impose serious burdens on the inspection system or the courts” (p. 316). As for the grounds to obtain an inspection warrant, Barlow’s follows the rule in Camara v. Municipal Court (1967) that traditional probable cause is unnecessary if the authorities can show that the inspection conforms to “reasonable legislative or administrative standards” (p. 538).
So, the Court in Barlow’s concluded that a warrant “showing that a specific business has been chosen for an OSHA search on the basis of a general administrative plan for the enforcement of the Act derived from neutral sources” (p. 321) would be sufficient, because it would ensure against arbitrary selection of employers. Marshall v. Barlow did little to change the frequency and effectiveness of OSHA inspections. First, OSHA regulations apply to millions of businesses and are enforced by only 1,130 inspectors. Obvious principles of good management would send these inspectors to businesses that justified to have an inspection based on accident history and the number of employee complaints. OSHA’s managers had already been using this type of plan prior to the Barlow inspection since Barlow’s Inc. was selected for an inspection based on its accident history.
In the “AEI Journal on Government and Society”, we are given insight on how the Barlow decision protected business, yet still allowed OSHA inspectors to obtain Ex Parte warrants. Barlow left open the question whether “judicial orders for inspections routinely sought under the secretary’s existing regulations when employers refuse entry are the functional equivalent of warrants and thus satisfy the Fourth Amendment (6)”. When OSHA’s inspectors conduct criminal investigations with the assistance of a U.S. attorney, they may “obtain warrants by telephone pursuant to Rule 41(c) of the Federal Rules of Criminal Procedure (7)”.
The Barlow decision made the point of saying that if the purpose of an OSHA search is to obtain evidence of crime rather than civil infractions; probable cause that criminal conduct has occurred must be shown to justify a warrant. OSHA Instruction STP 2.18 reiterates that the Supreme Court held that the Fourth Amendment requires a warrant for a nonconsensual OSHA inspection. However, the Court recognized the importance of surprise in the conduct of inspections (as reflected in the Act’s general prohibition against advance notice of an inspection), “in preventing the speedy alteration or disguise of violations so that they escape the inspector’s notice”.
The instruction goes on to say that: “The Court explicitly noted the Secretary of Labor’s authority to promulgate a regulation under which warrants could be sought ex parte; i.e., without the knowledge or participation of the employer. Such warrants might be sought after refusal of an employer to grant entry for an inspection or, in some cases, prior to any attempt to gain entry.” This procedure has helped maximize the effectiveness of criminal enforcement agencies since Barlow did not limit surprise inspections. The only important safeguard that the Barlow decision offered employers was the protection against inspections conducted in bad faith or for purposes of harassment.
There are some instances when an inspection requires no warrant. An article titled “Warrantless OSHA Inspections” by Mark E. Farrell gives an example of how this situation can occur. Farrell summarizes the details in Lakeland Enterprises of Rhinelander, Inc. v. Chao, 402 F.3d 739 (7th Cir. 2005). A sewer and water contractor (Lakeland) in northern Wisconsin was performing excavation work at an industrial park when an OSHA inspector, driving by on the public street, decided to stop and perform an impromptu inspection. After walking past traffic cones that were blocking street traffic from the project site, the inspector observed a Lakeland employee excavating a trench with a backhoe while another employee worked at the bottom of the trench.
“The trench was approximately eighteen feet deep and six feet wide at the bottom and did not contain a ladder or trench box”. When the contractor’s project superintendent began conversing with the OSHA inspector, the worker in the trench climbed up one of the walls to exit, which resulted in loose dirt falling back into the trench. “The employee performing the excavation work admitted that he knew that the other worker was not supposed to be working in the trench and that he failed to remove him” (Farrell). OSHA ended up issuing three citations and assessed a $49,000 civil penalty against the contractor, including a “willful violation for permitting an employee to work in an unprotected trench (in violation of 29 CFR § 1926.652(a)”.
During the hearing, the contractor moved to “suppress the evidence obtained from the inspection” on the basis that the OSHA inspector’s “warrantless search of the excavation site violated the Fourth Amendment”. The administrative law judge denied the motion, finding that the contractor had no right of privacy at the excavation site because the land was located on a public road. The administrative law judge also concluded that any Fourth Amendment claim was waived because the contractor failed to object to the inspection or ask for a warrant at the site (Farrell).
It is important to understand that no advance notice of a worksite inspection needs to be given. Unannounced inspections are an important tool in OSHA’s mission to promote safe and healthful working conditions at all times. OSHA has come a long way since 1970 to help American become a safe place to work especially when compared to some parts of the world. With a good budget and better laws there are fewer injuries every year. OSHA truly is one of the administrative agencies that exist for the bettering of the quality of life for the workers of our country.
Farrell, Mark E. “Warrantless OSHA Inspections Newsletter Article.” Lorman Education Services – Continuing Education Seminars. Web. 1 Mar. 2011. <http://www.lorman.com/newsletters/article.php?article_id=346&newsletter_id=73&category_id=3>.
Hall, Kermit L. “Marshall v. Barlow’s Inc.” The Oxford Companion to the Supreme Court of the United States. 2005.
“OSH Act, OSHA Standards, Inspections, Citations and Penalties.” Occupational Safety and Health Administration – Home. OSHA Office of Training and Education, May 1996. Web. 2 Mar. 2011. <http://www.osha.gov/doc/outreachtraining/htmlfiles/introsha.html>.
“OSHA and the Fourth Amendment.” AEI JOURNAL ON GOVERNMENT AND SOCIETY (1978): 6-7. AEI JOURNAL ON GOVERNMENT AND SOCIETY. Web.
United States of America. Department of Labor. Occupational Safety and Health Administration. Occupational Safety and Health Act of 1970. Print
United States of America. Department of Labor. Occupational Safety and Health Administration. Inspections and Investigations: Obtaining Warrants on an Ex Parte Basis and Prior to Attempting Entry. Bruce Hillenbrand Acting Director, Federal Compliance and State Programs, 26 Feb. 1981. Web. <http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=DIRECTIVES&p_id=1863>.
United States of America. Department of Labor. Occupational Safety and Health Administration. OSHA Frequently Asked Questions. Web. 1 Mar. 2011. <http://www.osha.gov/OSHA_FAQs.html>.