When can an Occupational Safety and Health Administration (OSHA) inspector inspect an employer's construction site or other work place? May he make surprise searches?
Although the governing OSHA statutes permit workplace inspections without search warrants, the United States Supreme Court has declared that provision unconstitutional, ruling that if the employer objects to a search, the OSHA inspector must obtain a search warrant. Marshall v. Barlow's,Inc., 436U.S. 307,56L. Ed. 2d305 (1978). The search warrant must be obtained from a court.
The procedure and requirements for obtaining search warrants permitting inspection by OSHA inspectors remain unclear. In the Tenth Circuit Federal Court (which includes Colorado, Wyoming, Oklahoma, Utah, Kansas and New Mexico) the rule is that search warrants may be obtained ex parte, that is, without giving the employer prior notice or an opportunity to resist the issuance of the warrant in court. Marshall v. W and W Steel Co., Inc., 604 F.2d 1322 (10th Cir. 1979). However, courts will SUFFICIENT CAUSE grant warrants only upon proof that there is a strong likelihood that a violation is occurring.
In other federal jurisdictions, the rule is otherwise. In the Third Circuit Federal Court (encompassing the states of Pennsylvania, New Jersey, Delaware and the Virgin Islands), the courts require that employers whose workplaces are to be searched must be given notice and an opportunity to object to the issuance of search warrants to allow inspections of their workplaces. However, the basis for that requirement seems to rest upon improper rule-making procedures by the Secretary of Labor, who has since attempted to comply with applicable procedures by inviting required public comment before adopting regulations permitting ex parte warrants. Various employer groups, including the Associated General Contractors, have been active in challenging the proposed new regulation.
Another yet unresolved issue is with respect to what evidence the OSHA people must present to the courts with their applications for search warrants. In the United States Supreme Court decision mentioned above, five Justices joined in the majority, and three Justices dissented The majority decision suggests that a showing of administrative need for inspection would suffice instead of the probable cause of violation required for criminal warrants.
However, since OSHA violations may also result in criminal prosecutions, the same showing required to obtain criminal search warrants may be necessary. In any event, the majority opinion does mandate that the warrant advise the employer of the scope and objects of the search. That would at least limit the inspector's probe somewhat.
With several questions yet remaining to be resolved, probably by the United States Supreme Court, it can at least now be recognized that an employer may object to a warrantless search of his workplace and place the burden on OSHA to obtain a search warrant. What evidence would need to be presented to the courts to justify issuance of warrants and whether warrants may be issued without affording the employer prior notice and an opportunity to object remain to be resolved.
Whether surprise OSHA inspections, absent the employer's consent, are still possible cannot now be predicted with certainty. It is, however, expected that the OSHA administrative people will continue to insist that surprise searches are necessary to the administration and enforcement of OSHA health and safety regulations.