Mar-Jac Update: OSHA Appeals to 11th Circuit

A couple months ago we noted a recent Northern District of Georgia decision (in the case now titled United States v. Mar-Jac) that limited the Occupational Safety & Health Administration’s (OSHA) power to expand inspections under a program that affects many Southern poultry producers. Unsatisfied with the case’s outcome, OSHA has appealed Mar-Jac to the Eleventh Circuit Court of Appeals. This means the Eleventh Circuit may overturn the lower court’s finding and instead find in favor of OSHA.

There are two major issues before the court. There are others, but they are less important and, as many white-paper legal issues are, quite boring. The first major issue concerns what evidentiary standard OSHA must meet when applying for a warrant to conduct an unprogrammed inspection. In other words, when does OSHA have probable cause under the Fourth Amendment to acquire an administrative warrant to conduct an impromptu search of an employer’s facilities? According to the brief OSHA submitted to the court on March 8, OSHA is arguing that it only needs “reasonable suspicion” that an employer has violated rules prohibiting certain hazardous conditions to re-inspect the facility for violations of those rules. OSHA also believes the lower court gave it a more stringent standard than required: OSHA needs “specific evidence” of violations. However, Mar-Jac argued in its April 7 brief that these two standards are the same thing and that the real issue, as noted by the lower court, is that OSHA only had evidence of “hazards” but not “possible violations.” Mar-Jac emphasizes that these two are completely different; the Fourth Amendment requires evidence of the latter. OSHA struck back in its April 27 reply with its own version of the relationship between the terms. Whatever happens in this case, this semantic debate will likely receive a lot of attention from the court.

The second major issue, which is contained within the first, is whether entries in OSHA 300 logs are sufficient evidence of “possible violations” of OSHA standards. OSHA 300 logs are records employers keep that detail any work-related injury or illness suffered by an employee, and the time and location of said injury or illness. OSHA thinks the logs are sufficient evidence of possible violations, and fighting back hard in its reply, stated that there is other evidence, along with the 300 logs, that collectively provide sufficient probable cause. Yet Mar-Jac remains steadfast in its assertion that OSHA logs cannot be evidence of possible violations because they do not set out the exact cause or origin of the work-related injury or illness. Even if the Eleventh Circuit finds the 300 logs were not sufficient here, it may be a stretch for parties in other cases to argue that a 300 log’s description of a bodily injury or illness and the time, location, and duration of the injury or illness will never indicate a possible OSHA violation. In fact, OSHA adopted a similar line of reasoning in its reply. However, as long as Mar-Jac can successfully argue that the five hazards, or possible violations, listed in the invalidated warrant were indiscernible based on their 300 logs, Mar-Jac will likely prevail.

The Eleventh Circuit will chime in on the topic late this summer, when the parties submit to oral argument. Whatever the court’s decision, it’s sure to have a substantial impact on OSHA inspections of poultry producers’ and other Southern employers’ facilities.