{"id":4082,"date":"2010-04-20T06:38:47","date_gmt":"2010-04-20T06:38:47","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2010-04-20T06:38:47","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=4082","title":{"rendered":"S.D.Ga.: OSHA search cannot be based solely on an employee complaint"},"content":{"rendered":"

An employee complaint alone cannot support a wall-to-wall search of the workplace under Barlow\u2019s<\/a>. More must be shown. In re Inspection of the Work Establishment, 2010 U.S. Dist. LEXIS 37560 (S.D. Ga. March 30, 2010):<\/p>\n

In a remarkably similar case to this one, the Sixth Circuit held that OSHA may not rely upon neutral regulations to expand an unprogrammed complaint-based inspection into a full-scale search. Trinity Industries, Inc. v. OSHA<\/a>, 16 F.3d 1455, 1460 (6th Cir. 1994). In that case, OSHA relied upon Instruction CPL 2.45A, which subjected facilities to full-scope comprehensive inspections if: “(1) an employee complaint has been filed that sets forth reasonable grounds for the Secretary of Labor to believe that a violation or danger exists; (2) the establishment is in an industry with a high lost workdays injury rate; (3) a complete safety inspection of the facility has not been carried out in the current year or in the last two fiscal years; and (4) the facility’s safety records show a lost workday injury rate at or above the national average.” Id. at 1457-58. Much as OSHA argues here that the filing of a complaint plus the implication of certain food processing SIC codes should allow it to expand its inspection, in Trinity Industries, OSHA “argue [d] that an employee complaint is only one of four conditions that must be satisfied before the Secretary may expand a limited complaint inspection under Section 8(f) into a full-scope inspection under Section 8(a). Id. at 1460. The Sixth Circuit rejected the argument, since it<\/p>\n

ignores the primary importance placed by the Court in Barlow’s on the neutrality of the initial selection process provided by an administrative plan. In short, no matter how objective the other criteria of CPL 2.45A may be, the initiation of a search under the plan hinges on the filing of an employee complaint. Thus, the full-scope inspection authorized by the regulation cannot be the product of the kind of reasonable administrative inspection plan proposed in Barlow’s.<\/p><\/blockquote>\n<\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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