Know Your Rights

November 28, 2011 11:16 AM

Labor attorney offers insights

Dairy producers need to know the law to prepare for possible inspections by government agencies, says attorney Anthony Raimondo.

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"This is the U.S., and you do still have private property rights," says Raimondo, who is with McCormick Barstow LLP in Fresno, Calif.

He notes the following differences between government agencies:

  • The Occupational Safety and Health Administration (OSHA) must have reasonable cause for inspection and is not required to give advance notice of an inspection.
  • Investigations by the Department of Labor may be made with little or no notice, except regarding I-9 audits, which require three days’ written notice.
  • Immigration and Customs Enforcement (ICE) may conduct a raid or an I-9 audit. A raid requires a warrant, which is a court order that gives agents permission to search your property. Agents are not entitled, however, to search outside the scope of the warrant. Resisting a warrant may result in contempt of court.

    "During a raid, you may accompany ICE officers on their search," Raimondo says. "Always take notes on everything that is occurring. Don’t advise employees to run or hide or help them escape from the premises."
  • An ICE audit requires three days’ advance notice in writing. "You are technically required to produce only the I-9 forms for inspection," Raimondo says. "If ICE wants to see anything else, you can require the agent to get a valid subpoena.

    "You are not required to keep or produce photocopies of the documents that employees presented to establish identity and/or employment eligibility, so don’t do it."

If you discover errors on I-9s, don’t correct them prior to the audit. You are allowed 10 business days after notification of a technical error on the I-9 to correct it.

"If an I-9 is missing altogether, the employer should immediately have the employee complete an I-9," Raimondo says. "Never backdate an I-9 to the date of hire."

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