Two weeks ago, we discussed the “Sallman Letter,” a recent OSHA Letter of Interpretation permitting employees at a non-unionized workplace to designate a union-affiliated representative for OSHA inspections. As we explained, one way that employers can protect themselves against this potential threat is by demanding a search warrant when a union representative is part of the inspection team. This raises a number of important questions about search warrants that we will address in this post, including: when employers should exercise their right to demand a warrant, what OSHA must do to get a warrant, and how to challenge a warrant, should one be issued.

When OSHA arrives at a facility to conduct an inspection, the employer has a critical choice to make: should it voluntarily consent to the inspection or demand a warrant? Generally, consenting to the inspection is the better option. This permits employers to negotiate and control the parameters of the inspection, such as scope and duration. It also demonstrates the employer’s desire to cooperate with OSHA, usually leading to fewer citations and smaller penalties than if a warrant was otherwise demanded. However, under the Fourth Amendment, employers have a constitutional right to require a warrant for inspections of their facilities. To obtain a warrant, OSHA must go before a judge and establish “probable cause” under oath that a safety violation exists.

In Marshall v. Barlow’s, Inc., the Supreme Court discussed two ways that OSHA can establish probable cause. First, OSHA can present specific evidence of a safety standard violation. Obtaining a warrant this way requires more than a generalized allegation. Thus, OSHA must have specific facts that demonstrate a safety standard applies and that it was violated, which are set forth under oath. Alternatively, OSHA can establish probable cause by showing that the facility was selected for inspection under a general administrative plan with neutral criteria. For example, OSHA might obtain a warrant by showing that the facility was chosen for inspection pursuant to a National Emphasis Plan targeting a particular high-hazard industry.

Even when OSHA succeeds in obtaining a warrant to inspect a facility, employers are not without recourse. There are several grounds on which employers can challenge the legal validity of a warrant.

First, employers can challenge a warrant by showing a lack of probable cause. If probable cause is based upon specific evidence of a violation, the employer should carefully examine the warrant to ensure it sets forth sufficient facts to demonstrate there is a violation. If probable cause is based upon an administrative plan, the employer should scrutinize the plan’s criteria and determine that they are, in fact, neutral, that its facility fits those criteria and that the plan is not being inappropriately used as a pretext to single out the employer.

Second, employers can challenge a warrant by establishing that it was based upon false statements or misleading omissions. For example, in Brock v. Brooks Woolen Co., the First Circuit invalidated a warrant because OSHA had placed the employer “in the harshest possible light” by, among other things, omitting that the machinery in question had already been taken out of service and that prior citations referenced in the warrant application had actually been withdrawn.

If an employer believes that a warrant is deficient, it must consider the related question of when to challenge the warrant. One option is to deny the inspector access to the facility, despite possessing a warrant. While OSHA technically has the right to disregard the employer and enter through the use of reasonable force, this is rarely done. Typically, OSHA will file contempt proceedings against the employer in federal district court, at which time the employer can file a motion to quash the warrant and if successful, vacate it. The key here is an analysis of the four corners of the warrant to determine if it lacks probable cause in the ways discussed above. With regard to the union representative referenced in our previous blog post, this would be the moment an employer would articulate the many reasons for why he should be kept out (e.g., threats of proprietary information disclosure, risks of tort liability and union-organizing campaigns).

However, employers should be aware that if a warrant is challenged in contempt proceedings, the initial decision to issue the warrant is given considerable deference. Moreover, if unsuccessful, employers may be subject to fines.

Another option is to permit the inspection and challenge any resulting citations before the Occupational Safety and Health Review Commission, raising the invalidity of the warrant as a defense. Both options entail certain risks, but this option carries the greater of those risks. In post-inspection challenges to warrants, the Commission will usually uphold the citations absent proof that the warrant was obtained through bad faith – a difficult showing. Furthermore, permitting OSHA to enter the premises exposes employers to additional violations that may be within plain sight of the inspector.

Ultimately, the decision whether to consent to an inspection or demand a warrant requires the employer to weigh a number of competing factors, including the basis for the inspection, its anticipated scope, the attitude of the inspector, and the degree of OSH Act compliance at the facility. Both options carry benefits and risks, and the decision must be made in light of the particular facts of the situation at hand.

Thorne Maginnis