Bench & Bar November/December 2025

FEATURE: EMPLOYMENT LAW

warrant is obtained, further refusal may lead to contempt proceedings or enforce ment through federal district court. EXCEPTIONS TO THE WARRANT REQUIREMENT Although Marshall and subsequent cases established a general requirement for war rants, several exceptions apply. The first and most common exception is voluntary con sent. Employers may consent to an OSHA inspection without a warrant. Consent must be voluntary, not coerced, and provided by someone with actual or apparent authority to give this consent. 17 Once an employer gives consent, the scope of the inspection must remain within the bounds of such consent. Inspectors may not exceed the agreed-upon areas without further consent or a warrant. A principal restated in Marshall is if OSHA is lawfully present ( e.g. , with consent or in a public area), any violations in plain view may be inspected and cited. 18 This prin ciple allows OSHA to take action even if certain areas were not initially included in the scope of the inspection. Areas that are not private, such as open fields, exterior grounds, or public-facing areas, are not protected by the Fourth Amendment to the same degree. Inspections of these areas may not require a warrant. 19 Where there is a reasonable belief that a condition poses an imminent danger to employees, OSHA may conduct inspections without a warrant or consent under the emergency exception. KENTUCKY’S STATE OSHA PLAN AND CONSTITUTIONAL ISSUES Twenty-two states operate their own OSHA-approved state plan, which must be “at least as effective” as the federal pro gram. If an employer operates in a state that has its own OSHA-approved plan, such as Kentucky, the state agency conducting an inspection is bound by the Fourth Amend ment or its state constitutional equivalents. However, state-specific case law may vary on issues like administrative warrants or consent protocols. Kentucky courts have addressed Fourth Amendment issues as applied to OSHA

cases in several important decisions. In Yocom v. Burnette , the Kentucky Supreme Court held that both the Fourth Amend ment and Section 10 of the Kentucky Constitution require a search warrant or court order based on probable cause for unconsented inspections of business premises. That case also acknowledges that the standard to determine the prob able cause required for the issuance of a requested warrant or court order is dif ferent from the standard applied in other contexts. 20 With respect to probable cause, the focus is on the governmental interest which justifies the official intrusion. The controlling standard is reasonableness. “A decision to search private property must be justified by a reasonable governmen tal interest. ‘But reasonableness is still the ultimate standard. If a valid public interest justifies the intrusion contemplated, then there is probable cause to issue a suitably restricted search warrant.’” 21 The Yocom Court concluded administrative entry with out consent upon portions of commercial premises not open to the public may only be compelled through prosecution of phys ical force within the context of the warrant procedure. 22 This position was later affirmed in Kentucky Labor Cabinet v. Graham , citing Marshall and confirming OSHA inspectors must obtain a warrant before conducting a search of an employer’s premises if employers do not provide consent. 23 Kentucky Courts have continued to empha size the issue of consent when evaluating Fourth Amendment applications to OSHA inspections. The most recent case address ing the issue was 2024’s Harland Clarke Corp. v. Kentucky Occupational Safety and Health Review Commission . 24 In that case, the Court of Appeals cited Thriftmart and stated: Regarding administrative searches and inspections generally, “[t]he Supreme Court has long recognized that such criminal searches are not the legal equivalent of administra tive inspections[.]” United States v. Thriftimart, Inc., 429 F.2d 1006, 1008 (9 th Cir. 1970). Indeed, “[i]t is clear . . . that the administrative search is to be treated differently than the criminal

search.” Id. at 1009. Therefore, “a warrantless inspectorial search of business premises is reasonable when entry is gained not by force or misrep resentation, but is, with knowledge of its purpose, afforded by manifestation of assent.” Id. at 1010. 25 What is clear is that despite the fact that Kentucky operates a state OSHA plan sepa rate from Federal OSHA, the requirement of consent to an onsite inspection, or to obtain a warrant within the bounds set out in those earlier cases, still exists. EMPLOYER RIGHTS AND BEST PRACTICES Employers and general counsel, especially in heavily regulated industries like con struction, manufacturing, and chemical processing, must be prepared for OSHA inspections and should understand their rights under the Fourth Amendment. First and foremost, employers should educate their agents and employees regarding what they should do when an OSHA inspector arrives, so they are prepared and do not make costly errors during the inspection process. If an OSHA inspector arrives at an employer’s establishment, a designated representative should immediately request credentials to verify the identity of the inspector. Then, they should ask whether the reason for the visit is a result of a complaint or because of a program-based inspection. If the employer chooses not to consent to the search, they should ask to see a warrant as soon as possible. If the employer chooses to consent to the inspection, or the inspec tor later obtains a warrant, the company should have management or a legal repre sentative accompany the inspector during the search to maintain the proper scope of the inspection. The individual accom panying the inspector should ensure that the inspectors do not inspect unauthorized areas. After the inspection, the company should review any citations issued, consult counsel to determine whether to contest citations, and maintain documentation and records of the inspection.

14 november/december 2025