Do You Have a Warrant? The Pros and Cons of Asking

Under the U.S. Supreme Court decision in Marshall v. Barlow’s, Inc., employers have a constitutional right to demand that OSHA obtain a warrant before initiating an inspection. Such a warrant must be based on probable cause—that is, a reasonable basis for the selection of the facility. If OSHA, when faced with a request, fails to obtain a warrant, or if the warrant is not based on probable cause, you can refuse entry into the facility, and any citation based on an invalid warrant will be vacated.

OSHA inspectors don’t habitually obtain warrants before showing up for an inspection, but you do have the right to ask. The question is, should you? In most cases, it’s not a good idea, as it establishes a fairly adversarial tone to the visit. Here’s a look at the pros and cons.

Warrant ‘Pros’

Asking an inspector to obtain a warrant can work to your advantage in these ways:

1. The inspector may not return. In a good many cases, especially if the inspection is routine, the inspector may just walk away for good.
2. The warrant may have a narrow scope. Many federal judges draw narrow warrants strictly limited to the specific complaint alleged in the affidavit put before the judge.
3. You’ll buy some time. The warrant won’t be issued right away—in some cases, inspectors wait as long as 30 days. If you know of any existing hazards, you’ll have time to remedy them and avoid a fine.

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4. The risk is small. Because OSHA has little discretion in fining and citations, and because the settlement process is the same regardless of whether a warrant has been issued, there is little risk of greater penalty for those who insist on a warrant.

Warrant ‘Cons’

Of course, if you do ask for a warrant, it can also work to your disadvantage:

1. The inspector may look more closely when he or she returns. If you ask for a warrant, it may be assumed there’s a reason you don’t want an inspector in your facility, and he or she may start looking for it.
2. The warrant may have a broad scope. Some judges write narrow warrants, but others have permitted a complete “wall-to-wall” inspection based on a single employee complaint.

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3. The inspector may try harder to expand the scope of the inspection. Inspections are often narrow in focus, limited only to specific hazards or areas. But once the worker is inside the facility, he or she may see things that lead to a request for an expanded scope for the inspection.

So, what should you do? As always, it depends on your situation. We suspect that most organizations will let the inspector in, but it may someday help to know you don’t have to.

Need more tips on how to handle inspections? Find them at Safety.BLR.com®.