Georgia Court Limits OSHA Inspection Power in Response to Expanded Inspection at Poultry Facility

The Occupational Safety and Health Administration (OSHA) recently expanded its inspection powers, but was rebuked by the Northern District of Georgia in a November 2, 2016 order in the case of United States v. Mar-Jac Poultry, Inc. Mar-Jac centered on OSHA’s behavior in expanding an authorized, limited inspection of Mar-Jac Poultry’s processing facilities under the authority of an OSHA-issued Regional Emphasis Program for Southeastern states, including Georgia (OSHA Region 4). The Court’s decision is a sigh of relief for poultry producers and similarly situated employers not only in Georgia, but also in Arkansas, Missouri, Oklahoma, and surrounding states as Arkansas and Oklahoma (Region 6), and Missouri (Region 7) are in regions with almost identical REPs for poultry producers.

History of OSHA

OSHA is a federal regulatory agency that most businesses are familiar with. However, OSHA has not always been around in the form it is in today.

OSHA’s predecessor was not an agency but a law named the Walsh-Healey Act of 1936. Congress passed the Act during FDR’s presidency and, for almost 30 years, the Act solely governed federal health and safety standards for businesses that contracted with the federal government. During this period, these standards gradually expanded and focused particularly on workplace safety standards for war production facilities during World War II.

On December 29, 1970, OSHA became the all-encompassing and authoritative agency that it is today when President Nixon signed into law the Occupational Safety and Health Act, which expanded federal oversight of workplace safety to virtually all employers in the United States. Most private employers and some state and local agencies would now have to follow standards created by and allow inspections conducted by the newly created OSHA regulatory body. Employers would also be subject to fines and, in severe situations, criminal penalties for violations of OSHA standards.

Regional Emphasis Programs

In 2015, OSHA launched a Regional Emphasis Program (REP) for poultry processing facilities in Southeastern states, including Georgia. Besides poultry, OSHA has REPs for a variety of industries and issues, including the retail industry, construction industry, and noise in the workplace. The purpose of the REPs is to (1) “address hazards or industries that pose a particular risk to workers in the office’s jurisdiction” and (2) educate employers about the programs and work hazards. OSHA accomplishes these goals through outreach and enforcement activities, including inspections. REPs usually last for one-year intervals and may be renewed year-to-year. OSHA initiated the Southeastern poultry REP in late 2015 after noting in a press release that “poultry workers are twice as likely to suffer serious injuries and six times more likely to get sick on the job than other private sector workers.” The program began with a three-month training and education initiative and then moved into the targeted enforcement phase in 2016, which ended on October 25, 2016.

The Mar-Jac Inspection

Normally, an OSHA inspection is a fairly routine and limited process. OSHA inspectors are only allowed to inspect facilities, areas, and documents covered by the inspection warrant authorizing the inspection. If the inspector finds a violation, OSHA has the authority to issue fines or penalties against the employer.

However, OSHA recently expanded its normal inspection power through use of the REPs. The 2015 Southeastern poultry processing facilities REP broadly stated:

Area offices will normally conduct inspections for all complaints, formal or non-formal, which contain allegations of potential worker exposure to poultry processing hazards unless there are significant resource implications. In addition and where applicable, all unprogrammed inspections will be expanded to include all areas required by this emphasis program.

The REP essentially gave all discretion of whether and when to expand an inspection from one part of a facility to other parts or the whole facility to the OSHA Area Director for the region.

In Mar-Jac, the Northern District of Georgia found that this language was too expansive and violated administrative process rules (which are governed by the Fourth Amendment). The Court stated that expansion of an inspection requires a showing of reasonable suspicion that a violation has occurred or is occurring and will likely be found by OSHA through further inspection. The Court then held that it is okay to expand inspection of a facility if an inspector finds specific evidence of certain hazards or violations, but that it is not okay to expand inspections based on evidence of “possible” violations.

Furthermore, the Court found problems with the way the Area Director chose to expand the inspection at Mar-Jac Poultry’s facilities. Because OSHA has limited financial resources, the Area Director was only realistically able to choose to expand one inspection per year. The Area Director would therefore choose only one out of many facilities eligible for an expanded inspection. The Court found that the choice of whether to expand an inspection must be based on neutral, objective factors and cannot be decided based on one (or maybe even more than one) person’s discretion and whim.

As stated before, the Mar-Jac decision is great news for Arkansas, Missouri, and Oklahoma employers and especially for poultry producers in the area. The language from the Region 4 REP (quoted above) giving authority to the Area Director to expand inspections “where applicable” is in the Region 6 (Arkansas & Oklahoma) REP. Furthermore, all of the language quoted above is almost exactly the same in the Region 7 (Missouri) REP. These three poultry processing REPs (in Regions 4, 6, and 7) are the only three REPs for the poultry processing industry and affect 16 states overall. Though the Northern District of Georgia’s opinion is not binding outside of Georgia, Mar-Jac has set an important precedent upholding constitutional protection of facilities from arbitrary expansion of searches when there is no direct evidence of further violations.

Also of note is the fact that while none of the REPs for other industries and issues seem to contain the exact language of the poultry processing REPs, several contain similar language, so Mar-Jac may further set the standard for other industries affected by this sort of expanded OSHA inspection.

References

• Regional Emphasis Plans for the poultry industry and poultry processing facilities:
  • Region 4
  • Region 6
  • Region 7
• OSHA press release:OSHA’s Regional Emphasis Program Focuses on Reducing Illness and Injury at Southeastern Chicken Processing Facilities
• United States v. Mar-Jac November 2, 2016 Order (Case No. 2:16-CV-192-WCO-JCF)
• OSHA Fact Sheet: OSHA Inspections