Beyond Industry Custom: Fifth Circuit Clarifies Employer Duties Under OSHA Machine-Guarding Standard

1. Introduction

In Mar-Jac Poultry MS, L.L.C. v. Secretary, U.S. Department of Labor, No. 24-60026 (5th Cir. July 10 2025), the Fifth Circuit confronted the perennial struggle between operational efficiency and workplace safety. The case arose from a tragic death of a “floor person,” B.B., who was pulled into an unguarded eviscerator carousel at Mar-Jac Poultry’s Hattiesburg, Mississippi facility. Following Occupational Safety and Health Administration (OSHA) inspections, Mar-Jac was cited for serious violations of:

• 29 C.F.R. § 1910.212(a)(1) – the general machine-guarding standard; and
• 29 C.F.R. § 1910.145(c)(3) – the safety-instruction-sign standard.

After the Occupational Safety and Health Review Commission (OSHRC) affirmed the citations and imposed penalties of $13,653 for each violation, Mar-Jac petitioned for review. The Fifth Circuit unanimously denied the petition, solidifying a significant clarification: employers cannot rely solely on industry customs or an absence of prior accidents to avoid compliance with the machine-guarding standard where hazards are open, obvious, and regularly encountered.

2. Summary of the Judgment

The court upheld OSHRC’s finding that Mar-Jac:

1. Failed to physically guard the rotating carousels of its “Line 2” Meyn Maestro eviscerator, exposing workers to a known caught-in hazard in violation of § 1910.212(a)(1);
2. Failed to post safety-instruction signs alerting employees to that hazard, contrary to § 1910.145(c)(3); and
3. Did not prove the affirmative defense of unpreventable employee misconduct.

Importantly, the court rejected Mar-Jac’s argument that the Secretary must show deviation from industry custom and practice to establish a § 1910.212 violation, holding that where the hazard and employer knowledge are supported by substantial evidence, additional custom evidence is unnecessary. The Fifth Circuit further affirmed that an elevated pull-stop cord did not qualify as an adequate guard when employees routinely reached beneath it into the machine’s “zone of danger.”

3. Detailed Analysis

3.1 Precedents Cited and Their Influence

• Southern Hens, Inc. v. OSHRC, 930 F.3d 667 (5th Cir. 2019) – Reaffirmed the four-part Secretary burden (applicability, non-compliance, exposure, knowledge) and discussed “zone of danger.” The court lifted its analytical framework directly from this case.
• Sanderson Farms, Inc. v. Perez, 811 F.3d 730 (5th Cir. 2016) & Sanderson Farms, Inc. v. OSHRC, 964 F.3d 418 (5th Cir. 2020) – Provided guidance on “performance” versus “specification” standards and the need (or not) for industry-custom evidence. The Mar-Jac panel distinguished but did not overrule this precedent, explaining that § 1910.212 gives sufficiently specific notice under the facts.
• Echo Powerline, L.L.C. v. OSHRC, 968 F.3d 471 (5th Cir. 2020) – Clarified deferential review when Commission declines discretionary review; the panel borrowed its administrative-law framework here.
• S&H Riggers & Erectors, Inc. v. OSHRC, 659 F.2d 1273 (5th Cir. 1981) & B&B Insulation, Inc. v. OSHRC, 583 F.2d 1364 (5th Cir. 1978) – Earlier cases requiring industry custom for some “performance standards.” The court read them narrowly, refusing to extend the requirement where the hazard was obvious and guarded against in the manufacturer’s manual.
• Angel Bros. Enterprises, Ltd. v. Walsh, 18 F.4th 827 (5th Cir. 2021) – Set the four-element test for the defense of unpreventable employee misconduct, which Mar-Jac failed.

3.2 The Court’s Legal Reasoning

“On this record, it is evident that Mar-Jac essentially employed no safeguarding measures for this undeniably hazardous, yet quotidian, aspect of its evisceration operations.” – Fifth Circuit

1. Applicability and Hazard Presence: The rotating carousels, operating at 175 birds per minute, create classic “rotating parts / nip points” hazards expressly listed in § 1910.212(a)(1). The standard therefore applied.
2. Non-Compliance: The Line 2 eviscerator lacked any physical barrier. The lone pull-cord 6 ft above the floor allowed entry into the danger zone; thus it was not a “guard.”
3. Employee Exposure: Unrefuted testimony from USDA inspectors and another floor person showed employees routinely reached inside the running machine. Exposure was “regular and predictable.”
4. Employer Knowledge: Supervisors observed, even instructed, the practice; consequently, constructive and actual knowledge was imputed to Mar-Jac.
5. No Need for Industry-Custom Proof: Because the hazard was open, obvious, recognized in the manufacturer’s manual, and specifically contemplated by the regulation, the Secretary was not required to adduce additional industry-wide evidence.
6. Safety-Instruction Signs Violation: Line 2 lacked the very decals present on Line 1. The court agreed that § 1910.145(c)(3) required signage where “general instructions relative to safety” are needed.
7. “Serious” Characterization and Penalty: Under 29 U.S.C. § 666(k), a violation is serious if an accident could result in death or serious harm. The fatality itself and the severe injuries possible made the classification indisputable.
8. Rejection of Unpreventable Misconduct Defense: Mar-Jac’s rules were neither effectively communicated nor enforced, as evidenced by systemic violations. B.B.’s alleged intoxication could not absolve the employer because the hazard stemmed from inadequate guarding, not from his personal behavior.

3.3 Impact of the Decision

• Narrows the “industry custom” shield. Employers in the Fifth Circuit can no longer argue that absence of industry consensus or accident history excuses them from § 1910.212 compliance where the hazard is explicit in the regulation or manufacturer literature.
• Recognizes manufacturer manuals as evidence of industry knowledge. Courts may treat warnings in a product manual as reflecting industry custom, shifting the burden back to employers.
• Clarifies adequacy of pull-cords. A pull-stop cord, if positioned where employees must already enter the danger zone to activate it, is insufficient guarding.
• Affirms wide “zone of danger.” The Fifth Circuit endorsed OSHRC’s willingness to view the gap beneath the cord, pan area, and carousel gap as one integrated zone.
• Increases deterrence. The decision reinforces a $13,653 per-violation baseline for serious violations, signalling that even mid-sized penalties will withstand appellate scrutiny.

4. Complex Concepts Simplified

5. Conclusion

The Fifth Circuit’s Mar-Jac decision cements a practical, worker-protective reading of § 1910.212. When hazards are patent, repetitively encountered, and even acknowledged by the equipment manufacturer, employers cannot hide behind industry inertia or a spotless accident record. The ruling underscores that:

• Physical guarding is presumed mandatory where rotating parts are accessible;
• Employers bear the on-going duty to monitor, enforce, and adapt safety measures rather than merely promulgate rules;
• Manufacturer warnings and internal policies can provide incontrovertible notice of hazards; and
• Affirmative defenses will fail without proof of a living, enforced safety culture.

Going forward, litigants in the Fifth Circuit—and likely beyond—should expect courts to look past formal workplace rules to actual practices on the floor. The case thereby amplifies OSHA’s preventative mission: safeguards must exist before tragedy, not be rationalized away afterwards.