Volume 37, Issue 9, September 2002

LegalEase

I Will Survive
Enduring Investigations by Government Agencies
by David Barron

When an inspector from the Occupational Safety and Health Administration (OSHA), the Department of Labor, the Equal Employment Opportunity Commission or the Immigration and Naturalization Service (INS) knocks on the door, even business owners confident of their records are likely to feel uncomfortable. Having a government investigator on the premises examining company documents and questioning employees can be nerve- wracking. But with some preparation and common sense during and after the visit, an investigation can go smoothly. 

Before the Visit
The single most important piece of advice is that documents, which employers are required by law to keep should be ready for inspection at all times. Not having the records available may constitute a violation. Further, a lack of properly maintained records may result in an investigator taking an adverse inference against the employer. For example, in wage and hour disputes initiated by an employee complaint, in the absence of employer records the Labor Department is likely to base its decision on the employee’s calculations of hours worked.

Government contractors who are subject to affirmative-action regulations should consider compiling a brag-book highlighting formal and informal affirmative-action accomplishments. The book might include awards, news clippings and internal documents discussing the achievement of affirmative-action goals. If later the company is subjected to an affirmative-action investigation, these books impress auditors and demonstrate a commitment to diversity. Employers can also protect themselves from accusations of discrimination in promotional and hiring practices by establishing job-posting systems that offer employees the opportunity to bid on open positions. 

However, companies should be cautious about other equal employment initiatives. Those that hire consultants to conduct self-critical reviews should have their in-house or outside counsels direct the review. That way, any documents (including damaging reviews) likely will be protected under the attorney-client privilege and cannot reflect badly on the employer during litigation. 

A Costly Mistake 
An attorney representing a client with an excellent affirmative- action record contacted a Labor Department investigator to learn why his client had been subjected to an unusually high level of scrutiny during a routine audit. The attorney was told the agency had discovered a secret memo with “M” or “F” scrawled next to several managers’ names. To the inspector, these codes indicated a conspiracy to promote male managers. The attorney got a copy of the memo and took it to the client’s human resources department for an explanation. The “conspiracy,” according to a secretary, was nothing more than a list of employee meal choices for an upcoming luncheon. M was a “code” for meat; F stood for fish.


During the Visit 
While it is foolish to send an auditor on a fishing expedition (employers occasionally have been known to tell investigators to help themselves to anything they need from the personnel files), it is just as unwise to antagonize him. Treating the officer with respect and facilitating his job will reduce tension as well as the likelihood of an unfavorable audit.

An officer should begin the visit by showing his credentials. If this is not done, the employer may request to see the credentials. In many cases the employer also can ask that the inspector obtain a warrant before visiting non-public grounds or a subpoena before granting him access to 
documents.

After the initial meeting, set aside a desk or office where the investigator can work and provide the documents he needs. The employer’s representative should know which documents are being examined and be familiar with their contents. Likewise, during an on-site inspection, the officer should be accompanied at all times by a company representative.

It is also a good idea to arrange a meeting between the investigator and the top company officer. The officer should stress the company’s commitment to compliance with applicable laws (safety, immigration, wage and hour, equal employment, etc.). This creates a good impression of the company as well as a good working relationship between the investigator and company personnel. 

After the Investigation
If a settlement must be crafted in response to a particular problem, employers should insist that it be drafted in such a way that the complaint cannot surface again later under the jurisdiction of another agency. While immigration violations are handled exclusively by the INS, safety violations may be filed with state or federal OSHA agencies, and claims of discrimination and harassment may be brought before various governmental agencies. 

Striking a Balance
Some employers may hinder the investigation by reacting emotionally. Others may adopt a hands-off attitude, in the hopes that the investigator will finish the job and soon be on his way. But the best approach is to be involved in the investigation as much as possible and communicate with the investigator effectively throughout. This strategy will prevent misunderstandings that could later cost an employer time and money to clear up later. 

 

David Barron is an attorney at Alaniz and Schraeder in Houston; he 
represents employers in employment-
related matters.


USG

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