APRIL 20, 2009:

I remember when I turned the big 5-0. Mrs. O’Shay and I decided to celebrate at the same little restaurant where we got engaged—can you believe the joint’s still there? I’m no Rudolph Valentino, but I don’t mind a romantic dinner with the wife every 10 years or so. But when I pulled into the parking lot, I could tell something was wrong. Sure enough, the second I walk into the place, every family member, friend and acquaintance I’ve ever had leaps out from under the table cloth shouting “Surprise!!”

I smiled. But I wasn’t happy.

I like knowing what to expect. Surprises are a problem. They mess me up, throw off my biorhythms. But when I’m on duty, it’s a different story. For the OSHA inspector, surprise is an important tool. Showing up unannounced gives us the chance to spot violations before companies can cover their tracks. And knowing that an OSHA inspector might show up at any moment gives employers a real incentive to unearth and root out hazards at their workplace before we do it for them.

But you guys have rights, too. One of the things people ask me all the time: Don’t OSHA inspectors need a search warrant to inspect a workplace?

Technically, we do. But sometimes we don’t. Let me tell you this true story and I think it’ll make sense to you. [Editor’s Note: Remember that Nick O’Shay doesn’t really exist. So his “true stories” are fictional. But they’re based on real cases. The following tale is based on a U.S. Supreme Court case called Marshall v. Barlow's, Inc., 436 U.S. 307 (1978)].

The Drive-By Inspection

It was July 1997. I was driving to work like I do every day. Only I decided to take a different route this morning to check out a new donut shack that one of my colleagues had been raving about. The glazed is good but not worth the detour, I’m thinking, when suddenly I spot a big worksite along the side of the road marked with a big blue and white sign. “Wreck Less Construction.” On a hunch, I pull over, walk past the orange cones and take a look.

The first thing I see is a backhoe digging a trench about 18 feet deep and 6 feet wide. When I walked over to get a closer look, I see a worker at the bottom of the trench. There’s no ladder, no trench box. After a few minutes, the guy climbs up one of the walls to exit and causes a pile of loose dirt to fall back into the trench.

Just then, a tall, husky gentleman wearing dark glasses and a scowl walks up to me.
“Can I help you?”

“I’m Inspector Nick O’Shay from the OSHA regional office. And you are?”

“Lou Skannon,” he says as he looks over the credentials I handed him, “superintendent for the project. To what do we owe this pleasure, Inspector O’Shay?”

Sarcasm isn’t the way to get on my good side. So my reply is terse: “Mr. Skannon. This is an unplanned, impromptu inspection. I happened to notice your site as I was driving by. And in the 10 minutes I’ve been here, I’ve observed several significant trenching violations.”

Anyway, we hold the conference [Editor’s Note: Nick is referring to the opening conference that OSHA inspectors hold with the employer before actually inspecting the facility], do the grand tour and I end up citing the contractor for three violations including a willful citation for allowing a worker to work in an unprotected trench. The fine: $49,000.

The Appeal

A couple of weeks later, Donna Tellow, my AAD [Editor’s Note: AAD is short for Associate Area Director] calls me into her office.

“Nick, remember that surprise inspection you did over at the Wreck Less site the other day?”

“Sure. The excavation nightmare. What about it?”

“They’re appealing.”

I was flabbergasted. “How? Why? I observed those violations with my own eyes. They didn’t even try to deny them.”

“Yeah, but they’re claiming that you had no right to do the inspection without a search warrant.”

I shook my head in disbelief. Were they right? Did I really need a search warrant to do the inspection?

The lawyers soon put my mind at ease. “Don’t worry, Nick. You didn’t do anything wrong. They got no case.”

It turns out they were right. But it took over a year for that “no case” to run its course.  First, the ALJ [Editor’s Note: ALJ stands for Administrative Law Judge, the first tribunal that adjudicates an OSHA appeal] ruled against them. So they appealed. The federal court upheld the ALJ and the company finally called off the dogs and paid the fine.

Explanation

In fact, OSHA inspectors do generally need a search warrant to conduct an inspection. So why did these guys lose their appeal?

The first reason has to do with the location of the site. The whole point of making government officials get a search warrant is to protect the privacy of the person being inspected. But the Wreck Less site was on public property and open to public view. So the court said the site owner had no “expectation of privacy” and couldn’t insist on my getting a search warrant.

But even if the contractor did have an expectation of privacy, the fact is that nobody objected to my doing the inspection without a search warrant. In effect, by not asking me not to do the inspection without a search warrant, the contractor voluntary gave up or “waived” any protections it might have had against a warrantless inspection.

The Moral

Okay, I know I just hit you with some legal mumbo jumbo, but the moral is this:

1. If your site is outdoors and in public view, you don’t have the right to insist on OSHA’s getting a search warrant;
2. If your site isn’t in public view, you do have the right to insist on a warrant; and
3. If you permit the inspector to do the inspection without the warrant, you waive that right.

The bottom line: If you want us to get a warrant, you better speak up right away before the inspection begins. And remember this. Asking for a warrant won’t make us to go away. We will get the warrant and we will come back.

I’m not saying you shouldn’t ask for a warrant, especially if your attorney advises you to. Just understand that once we return with the warrant we’re probably going to inspect even more closely just to make sure you didn’t use the extra time you bought to cover up hazards at your site.

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Be careful out there and remember, I’ll be watching you.

Nick O’Shay
OSHA Inspector

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