Warrantless OSHA Inspections

Mark Farrell Jr.
July 8, 2008 — 1,542 views  
In Lakeland Enterprises of Rhinelander, Inc. v. Chao, 402 F.3d 739 (7th Cir. 2005), a sewer and water contractor (Lakeland) in northern Wisconsin was performing excavation work at an industrial park when an OSHA inspector, driving by on the public street, decided to stop and perform an impromptu inspection. After walking past traffic cones that were blocking street traffic from the project site, the inspector observed a Lakeland employee excavating a trench with a backhoe while another employee worked at the bottom of the trench. The trench was approximately eighteen feet deep and six feet wide at the bottom and did not contain a ladder or trench box.

When the contractor’s project superintendent began conversing with the OSHA inspector, the worker in the trench climbed up one of the walls to exit, which resulted in loose dirt falling back into the trench. The employee performing the excavation work admitted that he knew that the other worker was not supposed to be working in the trench and that he failed to remove him.

OSHA issued three citations and assessed a $49,000 civil penalty against the contractor, including a willful violation for permitting an employee to work in an unprotected trench (in violation of 29 CFR § 1926.652(a)(1)). During the evidentiary hearing, the contractor moved to suppress the evidence obtained from the inspection on the basis that the OSHA inspector’s warrantless search of the excavation site violated the Fourth Amendment. The administrative law judge denied the motion, finding that the contractor had no right of privacy at the excavation site because the land was located on a public road. In addition, the administrative law judge concluded that any Fourth Amendment claim was waived because the contractor failed to object to the inspection or ask for a warrant at the site.

On appeal, the contractor was unsuccessful with the argument that the warrantless OSHA inspection violated the Fourth Amendment. The excavation in question occurred on a public street, not private property, and there was no reasonable expectation of privacy in an open trench dug on a public roadway. The Seventh Circuit cited the following similar rulings from other federal appellate courts: L.R. Wilson & Sons, Inc. v. OSHRC, 134 F.3d 1235, 1238-39 (4th Cir. 1998)(no reasonable expectation of privacy on construction jobsite easily observable by passersby); Donovan v. A.A. Beiro Construction Co., Inc., 746 F.2d 894 (D.C. Cir. 1984)(no expectation of privacy in construction areas open to plain view by the public); Marshall v. Western Waterproofing Co., Inc., 560 F.2d 947, 951 (8th Cir. 1977)(no reasonable expectation of privacy in construction site scaffolding readily observable by public); Accu-Namic, Inc. v. OSHRC, 515 F.2d 828, 833 (5th Cir. 1975)(no violation of contractor’s Fourth Amendment rights because trench inspection occurred on public street).

The appellate court affirmed the administrative law judge’s conclusion that any Fourth Amendment objection had been waived because the contractor did not object to the OSHA inspection and request a warrant at the scene. In addition, the willful citation assessed against the contractor was supported by the fact that the contractor’s supervisors were aware of the employee working in the trench without adequate protection from a cave-in, yet did nothing to eliminate the danger or remove the employee from the trench. Such conduct, itself, represented “plain indifference” to OSHA’s requirements and regulations, particularly given the contractor’s history of OSHA violations, which included a prior trenching violation that resulted in a fatality.

Practical Pointers

  • Understand that no advance notice of a worksite inspection will be given—unannounced inspections are an important tool in OSHA’s mission to promote safe and healthful working conditions at all times.
  • Remember that if your construction worksite is located on premises open to the public and readily observable by the public, it is unlikely that any reasonable expectation of privacy exists that would support a Fourth Amendment right against a warrantless inspection. An inspector’s ability to observe what is open to public view does not constitute a search.
  • An OSHA inspector’s failure to advise of the right to insist on a warrant does not render the consent unknowing or involuntary. If asked, however, an inspector should indicate that there is a right to refuse a warrantless inspection.
  • Valid consent to a worksite inspection operates as a waiver of the Fourth Amendment right against unreasonable search and seizure. Consent to an OSHA inspection need not be express—the failure to object to a known search constitutes consent (i.e., consent existed when project superintendent accompanied an OSHA inspector on a walkaround without protest).
  • Exigent (emergency) circumstances may also eliminate the warrant requirement because the urgent need for an immediate search outweighs the right to privacy.
  • An employer and employee representative should be given an opportunity to accompany the OSHA inspection tour for the purpose of aiding the inspection.
  • During the inspection, the OSHA inspector may question privately any employer, owner, operator, agent, or employee.
  • A closing conference should occur after the inspection in order to review the findings of the inspection with the employer and employee representatives.
  • Contact the OSHA Area Office immediately within eight (8) hours after the death of any employee from a work related incident or the in-patient hospitalization of three or more employees as a result of a work-related incident.

Mark E. Farrell, Jr. 404/582-8040 [email protected] Member State Bar of Georgia

Mark Farrell Jr.

Smith, Currie, & Hancock LLP