In October 2015, the Occupational Safety and Health Administration (OSHA) announced a Regional Emphasis Program (REP) mandating comprehensive inspections at poultry-processing facilities. As the program was being implemented, the poultry industry expressed a concern about one narrow aspect of the program which we believed created Constitutional concerns.
As background, most of OSHA’s regular activities involve “programmed inspections,” and OSHA is required to use an administratively neutral selection process to randomly choose where inspections will be conducted. This eliminates any concerns about the agency using an arbitrary or punitive selection process and works quite well. This administratively neutral process must also be applied to select poultry facilities to be inspected under the REP.
OSHA also rightfully has the authority and the responsibility to investigate serious accidents. In most cases, OSHA limits the scope of these accident investigations solely to the circumstances surrounding the incident.
The Regional Emphasis Program directive instructed OSHA compliance officers to expand every inspection at poultry-processing plants into a full-blown comprehensive inspection. This bypasses the administratively neutral selection process and effectively allows OSHA to choose whom the agency would target for comprehensive inspections.
I met with OSHA representatives in Washington earlier this year to express our belief that OSHA is prohibited from arbitrarily expanding accident investigations and to share with them the prior case law which supported our position. They disagreed and indicated that they were prepared to litigate the issue.
In February 2016, an employee received an electrical burn injury at a north Georgia poultry-processing plant. Plant management properly handled the injury, dutifully notified OSHA and cooperated with the agency’s accident investigation. However, when OSHA announced its intention to expand the accident inspection under the REP, the company did not consent citing previous court cases ruling such an expansion of inspections violated the administratively neutral selection process and therefore violated Fourth Amendment protections against unreasonable search. OSHA obtained a warrant granting them access for a full inspection, and the company obtained an emergency motion to set aside the warrant.
The case was litigated; and on Nov. 2, the U. S. District Court for the Northern District of Georgia Gainesville Division issued an order granting the company’s motion to overturn OSHA’s warrant. The court once again upheld the requirement for OSHA to utilize an administratively neutral selection process, and in doing so, upheld Fourth Amendment protections.
The poultry industry takes safety seriously and has a long history of continuous improvement. Over the last 20 years, we have reduced our injury rates by more than 81 percent. But we are not satisfied. We know that every injury impacts someone’s life, someone’s family. We also know that there is always room for further improvement, and we are working hard every day to advance our safety programs.
The industry also does not object to OSHA coming into our facilities. We just want to make sure they follow long established rules concerning the inspection selection process. NP