One of the most celebrated fictional political parodies is George Orwell’s 1949 book titled Nineteen Sixty-Four that depicts a character known as Big Brother; this character is commonly used to euphemistically represent a government that is too close to the people and always watching. Indeed, the purpose of any good constitution is to keep the government away from the people. This is the basic premise for the rule of probable cause enshrined in the Fourth Amendment of the U.S. Constitution, mostly applied to limit law enforcement agencies from interfering with the citizenry unless they have justifiable grounds for doing so. On matters relating to occupational hazards, Occupational Safety and Health Administration (OSHA) is the government agency and Marshall v. Barlows, Inc., 436 U.S. 307 (1978) (Marshall v. Barlows) sets the operational ground rules with regard to probable cause in OSHA’s activities in general and more specifically, during inspections.
Increased automation of industries that came with the rapid industrial growth after the 2 nd World War saw an increase in occupational hazard related accidents (Coniglio, 2010) . This prompted the congress to pass the Occupational Safety and Health Act (the Act) which was signed into Law by President Nixon on the 29 th day of December, 1970. The Act established OSHA with a mission to provide a healthful and safe environment for both men and women involved in safety by setting and enforcing standards through provision of assistance, training, education, and outreach. As part of its obligations, OSHA was also supposed to protect the workers who were brave enough to expose their employees for violating the mandatory rules and regulations set out in the Occupational Safety and Health Act by enforcing a variety of whistleblower statutes, rules and regulations (Coniglio, 2010) .
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As expected, OSHA aggressively began to accomplish its mandate which included conducting surprise inspections in factories and manufacturing plants that in their opinion fell under federal jurisdiction. It was these surprise inspections that created the cause of action in Marshall v. Barlow’s: citing authority invested to the cabinet secretary in charge of labor and his legal factors. An OSHA inspector on the 11 th September, 1975 visited the business premises of Barlow’s Inc. and requested to have access to the employees’ only section of the company’s premises located in Pocatello, Idaho with a view of inspecting if Marlow’s Inc. was in any violation of the mandatory rules of the Act.
According to the OSHA rules and regulations set according to the Act, the OSHA inspector was seeking to assure himself that Barlow’s Inc. had prepared various aspects such as comprehensive inventory of all hazardous material in the employees working area, prepared a well detailed material safety data sheets for each of the hazardous material so listed, labeled and am all containers sealed or unsealed that may contained any hazardous material with labeled that give particulars of the hazardous material and the materials hazardous prerequisites, trained the employees on the specifics of these materials and how to safely handle them and also how to mitigate danger in case of an accident and finally have a well-coordinated and flowing program that ties all this precautions together into a viable procedure. Section 8 (a) of the Act gave a free pass to the inspector to conduct random inspection in all industrial and manufacturing premises who had a federal aspect without the necessity of any Warrant (Nashs, 2004; Wenners, 2012).
Bill Marlow, the Company’s president sought to know if any complaint had been made any of his employees to OSHA and upon getting negative answer sought to know if the OSHA inspector had a warrant to search the premises. The OSHA inspector indicated that there was no warrant, that this was a random inspection leading to Bill Barlow declining the inspector access to his premises citing protection from the mandatory provisions of the Fourth Amendment of the Constitution. The aforesaid inspector came back three months later with a Subpoena seeking to compel Barlow’s Inc. to allow access for the OSHA inspections.
Bill Marlow declined to allow access to the inspector and filed his own suit for protection of his rights under the Fourth Amendment. A three judge constitutional bench found in favor of Barlow’s Inc. and dissatisfied with the ruling filed appeals that finally brought the matter to the Supreme Court of the United States which still found in favor of Barlow’s Inc. By applying the position held in the celebrated case of that Camara v. Municipal Court, 387 U. S. 523, 528-529 (1967), the Supreme Court, in a split decision, explicitly ruled that warrantless searches by OSHA were contrary to the mandatory provisions of the Fourth Amendment of the constitution. Therefore, to conduct a search, OSHA must apply for and obtain a warrant after providing a credible probable cause for the inspection.
The Supreme Court of the United States’ in Marshall v. Barlow’s created significant changes both in the conduct of OSHA officers and the Human Resource Management (HRM) professionals of organizations that fell under OSHA’s jurisdiction. With regard to OSHA, the routine inspections that had become the epitome of their operations had to cease. Instead, OSHA developed intelligence mechanisms for establishing, mainly through whistleblowers whether an organizations were fully complying with their rules and regulations (Wenners, 2012). Proper incentives and whistleblower motivational and protection apparatuses were therefore put in place and improved on over time.
Whenever probable cause was established, OSHA officials would move the relevant judicial body for an inspection warrant and proceed only if the said warrant is issued or if exigent circumstances existed to warrant legal exceptions to the mandatory provisions of the Fourth Amendment. Further, they enhanced the reaction-based mechanisms; similar to the ones applied by their sister organization the National Transport and Safety Authority, of swooping in after an accident or incident and trying to find out if the accident or incident had emanated from the acts or omissions contrary to provisions of the Act or non-compliance with OSHA rules and regulations (Wenners, 2012).
On the other hand, HRM officers developed relevant responses and stratagems to be applied whenever OSHA officials appeared for unscheduled inspections. For starters, the HRM officials always reserved their right to decline these inspections directly unless they established that cooperation with the inspectors was in the best interest of the organization. To arrive at this decision, the HRM officers would seek to establish if the inspection was motivated by a complaint from one of their employees and if yes, insist on perusing the complaint (Poole, 2008). A non-written complaint is a sign of either a whistleblower who is not cooperating or who is not well informed.
If there is a properly documented complaint, the next step will be to establish the nature of the complaint, if it emanates on industrial safety or hygiene which are two divergent areas and learning the nature of complaint will enable the HRM officer to limit the scope of inspection by directing the inspectors specifically to the issue at hand (Poole, 2008). The HRM officer should also always ensure that pristine employee records are maintained including the injury and illness logs so that the only necessary records should be availed to the OSHA inspector (Wenners, 2012). In case the OSHA inspector takes any photographs or records any videos, the HRM officer should also imitate the actions as well as keep a proper inventory of any documents or materials confiscated during the inspection exercise and incase of any interview between the OSHA inspector and an employee of the company, the HRM officer must insist on a representative of the company being present during that interview (Poole, 2008).
Reactionary Laws that establish reactionary organizations are one of the many ways that tyrannical government arms are created. The Act as passed by congress and implemented by OSHA was tyrannical to the proportions of the Big Brother as in indicated above. The Supreme Court, through the Marshall v. Barlow’s decision was however able to remedy the situation, protect the citizenry’s fundamental rights under the Fourth Amendment while still ensuring that stringent measures were still adhered to in protecting employee from the employer negligence that encourages fatal occupational accidents and incidents.
References
Coniglio, J. (2010). OSHA inspections: What to do when OSHA calls. Professional safety , 55(12), 39-41.
Nash, J. L. (2004). In defense of OSHA enforcement: The view from the top. Occupational hazards, 66(3), 22
Poole, P. (2008). When OSHA knocks. Occupational hazards, 70(2), 59–62.
Wenner, S. J. (2012). OSHA Moves Closer to Proposing Rule Requiring All Covered Employers to Create, Implement, and Enforce Injury and Illness Prevention Programs. Employee relations law journal , 38(1), 28-31.
