Bench & Bar November/December 2025

warrant, which slightly differs from a tra ditional warrant, stating “[f]or the purposes of an administrative search such as this, probable cause justifying the issuance of a warrant may be based not only on specific evidence of an existing violation but also on a showing that “reasonable legislative or administrative standards for conducting an…inspection are satisfied with respect to a particular establishment.” This leaves the door slightly open for OSHA to obtain a warrant not only when probable cause for a violation exists, but also if such purpose fits within OSHA’s regulatory intent. 11 STANDARD AND PROCESS Following the decision in Marshall , OSHA is required to obtain a warrant when an employer refuses to consent to an inspec tion. Standards for issuing such warrants were further clarified in subsequent cases and administrative guidelines. As stated, an administrative warrant is less demanding than a criminal warrant. It can be issued based on a general program of inspections justified by reasonable legisla tive or administrative standards or a specific complaint from an employee or other cred ible source suggesting a violation. 12 An administrative warrant sought by OSHA must have the following three elements: (1) a description of the area to be inspected; (2) a statement of the purpose of the inspection; and (3) the signature of a neutral mag istrate or judge. 13 If an establishment denies consent for a limited inspection, the warrant request will usually focus only on the specific conditions or practices that led to the inspection. 14 A broader inspection warrant can only be requested when there is clear evidence that violations may exist in other parts of the workplace. 15 This evidence would stem from injury records, employee statements, or visible hazards. 16 OSHA inspectors typically request consent first and will apply for a warrant only when an employer denies consent. Employers that refuse entry without a warrant are within their rights under Marshall , but once a ADMINISTRATIVE WARRANTS: LEGAL

While this statutory language provides OSHA with broad inspection authority, it is not without limitation. Regulatory inspec tions, just like criminal investigations, implicate Fourth Amendment protections; employers, as well as their attorneys, can and should assert this right when dealing with government inspectors. FOURTH AMENDMENT BASICS The Fourth Amendment to the United States Constitution assures “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unrea sonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” 3 The Fourth Amendment’s protections are rooted in the premise that “a man’s house is his castle,” established in response to Amer ican Colonials’ experiences with British “writs of assistance” – general court orders granting warrants for what often amounted to arbitrary searches and seizures. 4 Though initially applied in the criminal context,

Fourth Amendment protections were extended to administrative searches and inspections with the establishment and the growth of the administrative state, leading federal and state agencies to develop qua si-police powers. In the case of Camara v. Municipal Court , for example, the United States Supreme Court held that adminis trative inspections by government officials, such as health or housing inspectors, con stitute searches within the meaning of the Fourth Amendment and therefore generally require consent or a warrant. 5 MARSHALL V. BARLOW’S, INC. In Marshall v. Barlow’s, Inc. , the seminal case addressing Fourth Amendment pro tections within the context of an OSHA inspection, the Supreme Court addressed whether OSHA inspectors could conduct warrantless inspections of non-public work spaces. 6 The case arose when an OSHA inspector sought entry into an electrical and plumbing installation business with out a warrant. 7 The business owner refused entry and argued that the search violated his Fourth Amendment rights. 8 The Marshall Court ruled in favor of the employer, holding OSHA’s statutory authorization for warrantless inspections was unconstitutional when applied to pri vate areas of privately owned businesses. 9 The Court further held that commercial premises are protected by the Fourth Amendment, and the warrant require ment applies to OSHA inspections unless an exception applies ( e.g. , consent or exigent circumstances). 10 The Court empha sized that OSHA must obtain an admin istrative

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