Federal and California agencies conduct workplace inspections for a growing variety of reasons. For example, SB 306, effective January 1, 2018, expanded the California Department of Labor Standards Enforcement’s authority to investigate wage law violations, without a worker-filed complaint. The federal government has stepped up immigration laws enforcement. Many inspections occur with little to no notice. Therefore, management should learn their rights and obligations.
Agencies visit workplaces for different reasons. The DLSE’s Bureau of Field Enforcement and federal Department of Labor focus on wage and hour law. The California Occupational Safety and Health Administrations (Cal-OHSA) may inspect in response to an injury report, or to ensure compliance with safety standards. Federal immigration authorities may inspect I-9 Forms and determine compliance with immigration law. The California Department of Fair Employment and federal Equal Employment Opportunity Commission may, for example, audit for affirmative action compliance.
Many inspections are scheduled, often on short notice. However, a government agent also may appear unannounced. Therefore, advance preparation is important.
Employers generally must cooperate with government agents during authorized inspections. However, employers may request to reschedule an unannounced inspection to allow the employer to obtain counsel, minimize disruption, and prepare documents or witnesses. As a last resort, employers may deny access to agents until they return with a warrant. Doing so may create an adversarial relationship with the agent, but may be preferred to allowing inspection of a worksite that is not ready.
Employers should create an investigation response team, comprised of a few responsible managers or officers. The team can coordinate, define and manage the process. The team should know the contact information for in-house or external counsel to obtain guidance and, perhaps, communicate with the investigator.
The response team and counsel can create a manual with “dos and don’ts,” as well as what to provide during an investigation. The manual can include contact information for the team and counsel, the types of information that must, may, and should not be provided, the scope of the right to delay or refuse access, and the investigator’s right to interview employees and supervisors or managers. If a manual is not practical, the company can prepare checklists for those who will interact with the investigator.
A manual is useless if no one knows about it. Management should be trained about the manual’s existence and contents. The team or responsible manager should periodically update contact information, and ensure it is up to date on new or changing laws.
Training is also key. At minimum, first-level supervisors must know the location of resources, and whom to contact. Those employees most likely to greet a visiting inspector should be trained as well. For example, responsible supervisors should know to ask for credentials, and to determine which agency the investigator represents. Then, employees or supervisors should be trained to contact the investigation response team. If there are no response team members available, the employees or supervisors should provide the response team’s contact information and ask that the inspector contact them to continue the investigation.
The employer should attempt to understand the nature or scope of the investigation. The point of contact should try to determine if the investigation is random, routine, or in response to a complaint. If possible, request a copy of the complaint that prompted the investigation. (It never hurts to ask.)
The employer’s representative should try to assess the investigator’s concerns and what information he or she seeks. The investigation could involve a physical inspection, interviews, and review of relevant documents. Determining the scope of these requests can help employer’s counsel analyze whether the inspection or investigation is reasonable, and communicate intelligently with the investigator.
Adequate preparation includes ensuring documents, posters, and records are in order. Employers should be aware of document retention rules for various types of employment-related documents and should seek advice from employment counsel.
Misplaced, destroyed or inaccessible records not only may lead to fines but also lead the investigator to suspect evasive behavior. Depending on the situation, the investigator may request to inspect payroll and timekeeping records, or documents such as I-9s, as well as required postings. For OSHA investigations, the agent will likely look for the employer’s Injury and Illness Prevention Plan, required logs and policies. Documents should always be stored in such a way as to be secure, organized, and available immediately for inspection. Some records may be stored electronically; someone has to be familiar with procedures to access them locally.
Agents may want to tour the worksite to inspect conditions and take photographs or video. Employers may insist that legal counsel is present during the inspection of non-public areas. Employers should take the same photographs or video that government agents take. Employers may deny agents permission to record or access information that may reveal trade secrets.
Investigators may conduct employee interviews. The response team or local supervisor may attempt to work with agents to schedule the interviews to minimize business disruption and allow time to notify and prepare its employees.
Employees generally are not required to participate in the interviews; employers may advise employees of their rights to decline. Employers may provide representation to their management level employees during interviews, but not non-managerial employees. After an interview, the employer should debrief those interviewed to learn the specific scope of the investigation.
It bears emphasis that employers should train managers and supervisors that it is unlawful and violates employer policy to retaliate against employees who participate. Similarly, employers must not retaliate against anyone who initiated a complaint.
Apart for preparation and training, professional cooperation and communication are key. Government agencies’ employees have jobs to do. Maintaining a cordial, professional, and candid relationship with the investigator will ensure a smoother process, and may result in lower risk of negative outcomes.