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Marshall v. Barlow’s Inc.


An OSHA inspector entered the customer service area of Barlow’s, Inc., an electrical and plumbing installation business. Barlow, president and general manager, was on hand. The OSHA inspector told Barlow that he wished to conduct a search of the working areas of the business. Barlow inquired whether any complaint had been received about his company. The inspector said no, but that Barlow’s, Inc., had simply turned up in the agency’s selection process. The inspector again asked to enter the nonpublic area of the business. Barlow asked whether the inspector had a search warrant. The inspector did not. Barlow refused the inspector admission to the employee area of his business. Three months later, the Secretary of Labor petitioned the United States District Court to issue an order compelling Barlow to admit the inspector.


Whether a District Court order to allow an inspection of nonpublic areas of a business without sufficient reason is reasonable under the Fourth Amendment?


No. The law that authorized inspections without an inspection warrant or its equivalent was unconstitutional in these circumstances.


A statute empowered agents of the Secretary of Labor to search the work area of any employment facilities within the Act’s jurisdiction in order to inspect for safety hazards and regulatory violations. OSHA inspectors were also given the authority “to review records required by the Act and regulations published in this chapter, and other records which are directly related to the purpose of the inspection,” with a warrant.

“ . . .[P]robable cause justifying the issuance of a warrant may be based on not only 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; a warrant showing that a specific business has been chosen for a search on the basis of a general administrative plan for the enforcement of the Act derived from neutral sources such as, for example, dispersion of employees in various types of industries across a given area, and the desired frequency of search in any of the lesser divisions of the area, will protect an employer’s Fourth Amendment rights.”

“ . . . [T]he Act is unconstitutional insofar as it purports to authorize inspections without a warrant or its equivalent . . . . Without a warrant the inspector stands in no better position than a member of the public. What is observable by the public is observable, without a warrant, by the government inspector as well.” Air Pollution Variance Bd. v. Western Alfalfa Corp., 416 U.S. 861; 94 S. Ct. 2114 (1974).


436 U.S. 307, 98 S. Ct. 1816 (1978)

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