11th Circuit to Rule on Mar-Jac Poultry Case
On August 22, 2017, the 11th Circuit heard oral arguments for USA. v. Mar-Jac Poultry, Inc. on the issue of whether an OSHA Area Director can expand the scope of an investigation to a comprehensive inspection based on the entries in a Log of Work-Related Injuries and Illnesses (often referred to as a “300 Log”).
An OSHA 300 Log is a form for employers to record all injuries and illnesses that occur in the workplace, including: where and when the injury/illness occurred, the nature of the injury/illness, the name and role of the employee, and the number of days the employee missed work or had “restricted” or “light duty”. Noticeably missing from the list of required recorded information is the causation of the workplace injury/illness. This is because employers are not required to document this information on their 300 Log—a factor that plays a key role in the case before the 11th Circuit.
In USA v. Mar-Jac Poultry, Inc. OSHA conducted an investigation at Mar-Jac’s poultry processing facility after a February 2016 accident. The accident required the hospitalization of an employee after he sustained first, second, and third degree burns in the course of conducting maintenance work. Mar-Jac fully cooperated with the investigation into the accident and took the CSHO to the site of the injury and permitted her to examine the tools involved in the accident. Upon request, Mar-Jac provided the CSHO with the 300 Logs of Work-Related Injuries and Illness for the past three years.
The CSHO analyzed the data in the 300 Logs and determined, based on the entries, that there were indications of OSHA violations in six areas unrelated to the February 2016 injury. OSHA then sought an administrative warrant authorizing the agency to inspect (among other things) the six hazards solely implicated by the OSHA 300 logs.
A magistrate judge granted the warrant in its entirety, and Mar-Jac moved to quash the warrant. The District Court granted Mar-Jac’s motion to quash OSHA’s warrant to expand the investigation. The Court found that OSHA did not have evidence to support a search for the hazards based entirely upon the potential hazards identified in the 300 Log.
The District Court noted that it is not evident from the entries in the 300 Log whether the injuries or illnesses resulted from an OSHA violation. According to the District Court, the “mere presence” of an injury on a 300 Log is an insufficient basis for expanding the investigation. The Court then distinguished “hazards” from “violations”, noting that hazards were likely abundant in dangerous workplaces like poultry processing plants, but a “hazard” does not become a “violation” until an employer fails to comply with an OSHA standard. OSHA appealed the District Court’s decision in regards to the hazards solely implicated by the 300 Logs.
In the brief for the 11th Circuit, OSHA heavily relied on its “expertise and prior studies” of the poultry industry and its hazards as evidence that the request to expand the scope of the search is reasonable. According to OSHA, the connection between injuries and hazards identified in the 300 logs—coupled with OSHA’s expertise of industry hazards—satisfies OSHA’s burden of proof for an administrative warrant. OSHA contended it must merely “identify specific evidence of an existing violation” to obtain a warrant, and this evidence was satisfied by the 300 Log entries.
Mar-Jac contended that the District Court properly applied the legal standard for an administrative warrant, and determined that the 300 Log did not indicate “specific evidence of an OSHA violation”. Mar-Jac commented, “ . . . it defies understanding how OSHA takes knife cut injuries and concludes that those implicate machine guarding issues.” According to Mar-Jac, the Court correctly distinguished “hazards” from “violations”. Mar-Jac pointed to the 11th Circuit’s decision in Donovan v. Sarasota Concrete, which determined that a “specific complaint or report of a work-related injury or illness did not, without more, provide sufficient probable cause to expand an investigation beyond the condition or incident complained of or reported.” Furthermore, Mar-Jac argued that 300 Logs do not differentiate between hazards and violations because the causation of the injury is not recorded on the form. Mar-Jac contended that the 300 Log is merely a collection of information.
The 11th Circuit has not yet released its decision in USA. v. Mar-Jac Poultry, Inc., but during the oral argument the Judges expressed their concern about the potential for “unbridled discretion” of OSHA Area Directors. No doubt a favorable outcome for Mar-Jac, Inc. will be viewed as a victory for all employers weary of the possibility of “unbridled” OSHA inspections.
 Donovan v. Sarasota Concrete, 693 F.2d 1061, 1068-69 (11th Cir. 1982).by