Challenging OSHA Adminstrative Warrants
February 2, 2008
by Employment & Labor Law / Employee Benefits Group
Stinson Morrison Hecker LLP
Copyright © 2008
Companies have no constitutional right to challenge the validity of an administrative workplace search warrant in federal court before it is executed, according to a December 26, 2007, decision of the U.S. Court of Appeals for the Fifth Circuit. Trinity Marine Products, Inc. v. Chao.
Facts – The case arose after an employer refused to allow OSHA compliance officers to inspect its facility pursuant to an administrative warrant. The employer relented only after a federal marshal threatened that "somebody will be in chains" if the inspection was not allowed to proceed.
Forceful Execution of Administrative Warrants Permitted – The court rejected the employer’s argument that OSHA must resort to civil contempt proceeding when faced with a recalcitrant employer. While "a civil contempt proceeding or a hearing on a motion to quash the warrant are possible options, nothing precludes the use of the U.S. Marshals to enforce a warrant."
Other Remedies for Alleged Constitutional Violations – The court rejected the employer’s argument that a pre-execution civil proceeding is necessary to protect employers from unconstitutional searches that do not result in OSHA citations. The court noted that an employer may bring a civil suit seeking damages for alleged unconstitutional searches under the Supreme Court’s Bivens decision. "There is no danger of an unremedied constitutional wrong."
Lower Probable Cause Standard Does Not Require Pre-Execution Challenge – The court also rejected the employer’s argument that an administrative warrant’s lower probable cause requirement requires a heightened due process review through a pre-execution challenge procedure. In rejecting this argument, the court simply noted that "an administrative warrant is a less protective form of warrant."
Bottom Line – While OSHA will likely continue to seek enforcement through civil contempt proceedings in order to resolve any doubts about the validity of the warrant in question at an early stage, it may in certain cases resort to the forceful execution of its administrative warrants. In any event, employers should contact legal counsel immediately if OSHA requests an inspection or attempts to serve a search warrant.
Stinson Morrison Hecker LLP is one of the country's largest law firms with more than 360 attorneys in more than 45-industry-focused areas. If you would like more information regarding this summary, please contact one of our Employment & Labor Law and Employee Benefits attorneys.
Law at Work is designed to give general information and is not intended to be a comprehensive summary or to treat exhaustively the subjects and matters covered. The information appearing herein does not constitute legal advice or opinions. Such advice and opinions are provided only upon engagement with respect to specific factual situations. Nothing contained herein shall be considered as an admission in any matter or controversy.
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