Masonry Magazine January 1979 Page. 31
When OSHA'S At Your Office Door
On May 23, 1978 the U.S. Supreme Court in Marshall v. Barlow's Inc. ruled that the Labor Department's Occupational Safety and Health Administration must secure warrants to gain entry to workplaces where its inspectors are not welcomed. But the ruling-under the Fourth Amendment protection against unreasonable searches and seizures-raised nearly as many questions as it resolved. The recommendations in this article have been compiled by the Law Department of the National Association of Manufacturers in Washington, D.C., and are supplemental to those already submitted to MCAA Members by MCAA Legal Counsel George Plumb. However, one's own legal counsel should be consulted in individual situations involving OSHA inspections.
Reprinted with permission from the September, 1978 issue of "Enterprise" published by the National Association of Manufacturers.
The basic statutory authority for the Occupational Safety and Health Administration (OSHA) to conduct workplace safety and health inspections is contained in Section 8(a) of the Occupational Safety and Health Act. Nowhere does the act require OSHA to obtain either a search warrant, or any other form of compulsory process, as a condition precedent to the initiation of a workplace inspection. Thus, the act seemingly conferred virtually unlimited authority upon OSHA enforcement officials to conduct warrantless workplace inspections.
Soon after the act's passage, employers began to question the consistency of such a broad grant of inspection authority with the Fourth Amendment to the United States Constitution. It was against this background of heightened employer awareness of Fourth Amendment protections that the facts giving rise to the recent Supreme Court's decision developed.
Following are several specific recommendations with regard to what action employers should consider in responding to the Supreme Court's opinion.
Consult Local Legal Counsel Prior to Denying OSHA Entry to Your Worksite
It is of paramount importance that an employer consult with local counsel prior to any refusal of OSHA's request to enter the worksite. This determination is one which must be made by each individual employer on the basis of all relevant circumstances, including the peculiarities of each individual worksite and the local court system. Furthermore, a plan for responding to the sudden appearance of an OSHA inspector should be carefully worked out in advance, for the employer's ability to either quash a warrant or limit its scope may depend, in large part, on the speed with which the employer can seek relief from the court. Such a plan will also serve to minimize confusion and internal breakdowns in communication when timing may be critical.
Employers Should Not Demand the Production of Search Warrants without a Good Reason
A great deal of controversy has arisen with regard to whether employers should routinely demand that OSHA obtain a warrant. Recognizing that this is a highly individual choice, it would be well to keep the following considerations in mind:
FIRST, had OSHA been able to persuasively demonstrate to the Supreme Court that so many employers were requiring the production of warrants that the imposition of a warrant requirement would truly and significantly impair its ability to carry out its responsibilities under the act, then the Barlow's case might well have been decided differently. The Supreme Court certainly did not foreclose this possibility in a future case given different circumstances than existed in Barlow's. Thus, a dramatic increase in the number of refusal cases could result in the total loss of any benefit provided by the Barlow's decision.
SECOND, a dramatic increase in the number of refusal cases could also result in a major shift in OSHA's policy such that OSHA would routinely obtain ex parte warrants prior to every inspection. This would basically eliminate whatever advantage there may be to having the right to insist upon the presentation of a warrant.