Today, it’s not a matter of if but when your business faces a government inspection. Dairies and other businesses should have protocols in place to handle inspections and investigations, whether they’re from OSHA, DOL or ICE.
By Anthony P. Raimondo, attorney
In a time of increased enforcement activity from a range of government agencies, dairies and other businesses should have protocols in place to handle inspections and investigations.
These investigations can take a variety of forms. For example, state and federal Occupation Safety and Health agencies have the right to enter and inspect businesses to confirm compliance, as well as to investigate after accidents. State agencies such as the California Labor Commissioner and the U.S. Department of Labor (DOL) have authority to enter and examine time and payroll records and other materials both in random inspections and in response to complaints. Immigration and Customs Enforcement (ICE) can conduct raids and audits to enforce immigration laws. Both state and federal tax authorities can conduct audits and inspections to make sure that payroll taxes are properly paid.
Regardless of the agency involved or its purpose, a government inspection protocol should have the following general features:
- There should be a designated person at the business who is in charge of handling government visits. This should be a person who can remain calm and be diplomatic with government agents but has the backbone to stand up for the business if the agency tries to overreach and exceed its right of access. This person should have cell phone access to the attorneys for the business.
- The designated person should be trained on what the different agencies’ right of access is. For example, ICE can conduct I-9 audits, but must give three days’ written notice. If ICE wants to conduct a raid to search for particular evidence or people, it can proceed unannounced but must have a search warrant. DOL can inspect payroll records without advance notice, but if it wants to audit I-9s, it must give the same three-day notice that ICE gives.
- When visited by government personnel, on-site employees should be trained to greet the agents politely and inform them that only the company’s designated person has authority to provide access. Ask the agents for business cards, and contact the designated person. Offer coffee, water and other refreshments if possible. There is no reason to antagonize, and the process will go much easier if the agents are treated well.
- The designated person should have a response time of no more than 10 or 15 minutes. During this time, it is essential to verify that the agents are who they claim to be, and that they have the right to see whatever it is that they are looking for.
- Management and supervisory employees must not allow themselves to be interviewed unless the business’s attorneys are present. Their statements can bind the business legally, and the business has a right to its attorneys for such interviews.
Most government agents will understand that you are running a business. As long as you behave reasonably, they will work with you so that you can provide copies of any requested documents to their office or schedule a mutually convenient time for an inspection. If a rogue agent shows up and is belligerent and uncooperative, do not provoke a confrontation. Simply document the behavior and collect witness statements to demonstrate the misconduct. This will give your attorneys the tools they need to address the misconduct without making things worse for the business.
In the current environment, it is not a matter of if your business faces a government inspection, it is a matter of when they show up. As with all areas of business, understanding your rights and being prepared will put you in the best position to address an inspection while minimizing its impact and disruption of the business.
The goal of this article is to provide employers with current labor and employment law information. The contents should not be interpreted or construed as legal advice or opinion. For individual responses to questions or concerns regarding any given situation, the reader should consult with Anthony Raimondo at McCormick Barstow LLP in Fresno, Calif., at (559)433-1300.