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S.D.Ga.: OSHA search cannot be based solely on an employee complaint

By John Wesley Hall, Jr.

An employee complaint alone cannot support a wall-to-wall search of the workplace under Barlow’s. More must be shown. In re Inspection of the Work Establishment, 2010 U.S. Dist. LEXIS 37560 (S.D. Ga. March 30, 2010): 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, 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...continue to full post

Full post as published by Fourth Amendment on April 20, 2010 (boomark / email).