What To Do When The Government Comes Knocking

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1 What To Do When The Government Comes Knocking Are You Ready? Michael Colgan Harrington Lauren Meris Filiberto March 20, 2013

2 OSHA Occupational Safety Health Act ICE Immigration & Customs Enforcement

3 What is expected For OSHA 1. Standards 2. General Duty Clause Employer is to furnish a place of employment which is free from recognized hazards that are causing or are likely to cause death or serious physical harm to [its] employees.

employment which is free from recognized hazards that are

4 For ICE 1. I-9s are in order 2. Only properly authorized individuals are employed

5 Types of OSHA Inspections 1. Imminent Danger 2. Catastrophic and Fatal Accidents 3. Employee Complaints 4. Programmed High Hazard Inspections 5. Re-Inspections

6 OSHA s National Emphasis Program Nursing and Residential Care Facilities April 5, years Specific Hazards being Targeted Ergonomic Stressors in Patient Lifting Blood borne Pathogens Tuberculosis Workplace Violence Slip, Trips and Falls

Targeted Ergonomic Stressors in Patient Lifting Blood borne

7 Inspections for OSHA 1. Voluntary Consent 2. Search Warrant

8 ICE Audits are at Unprecedented Levels

9 What is the Purpose of an I-9 Audit Conducted by ICE? The Immigration Reform & Control Act (IRCA) Unlawful for employers to knowingly hire, recruit or employ illegal aliens. I-9 Audits are ICE s enforcement method of choice: Detect / deter employers from knowingly & intentionally employing unauthorized workers.

knowingly hire, recruit or employ illegal aliens.

10 Why Should I Care? Discovery of I-9 violations can lead to monetary fines $110 - $1,100 for substantive/uncorrected technical violations $375 - $16,000 for knowingly hire/continue to employ civil penalties criminal prosecution Can cripple workforce if large % of unauthorized workers are detected Low skilled workforces particularly at risk

substantive/uncorrected technical violations $375 - $16,000 for knowingly

11 I-9 Inspection Process

12 Notice of Inspection (NOI) Compels production of Forms I-9 within 3 days. Additional documentation may be requested- i.e. payroll records & list of current employees. Contact counsel immediately once NOI issued in order to mitigate potential violations during 3 day window.

Contact counsel immediately once NOI issued in order to mitigate

13 ICE Notices Following Inspection Notice of Technical or Procedural Failures Employer has 10 business days to correct technical violations (unless become substantive violations)

14 Notice of Discrepancies or Suspect Documents Employer must provide employee copy of notice & opportunity to present additional documentation to establish employment eligibility Employee must be terminated if it cannot produce valid work authorization document or employer subject to Knowingly Hired or Continuing to Employ Penalties Timing: Mester Manufacturing Company Case

must be terminated if it cannot produce valid work authorization document or employer subject

15 Notice of Intent to Fine (NIF) May be issued for substantive, uncorrected technical, knowingly hire and continuing to employ violations. Good Guys are not immune. Settlement Process: Employer has opportunity to negotiate a settlement with ICE or request a hearing before the Office of the Chief Administrative Hearing Officer (OCAHO) within 30 days of receipt of NIF. If employer takes no action, ICE will issue a Final Order.

Settlement Process: Employer has opportunity to negotiate a settlement with ICE or request a hearing

16 The OSHA Inspection 1. Opening Conference 2. Document Review 3. Walk Through Accompany Inspector at all times Can cite for anything in plain view

17 4. Closing Conference Take notes 5. Notice of Citations 6. Informal Conference with Area Director 7. Notice of Contest Within 15 calendar days of citation being issued

18 What to do when the Government Inspector knocks 1. Remain Calm 2. Review Official Credentials 3. Assemble Responsible Team If unavailable, reschedule with Inspector 4. Escort Inspector to a pre-determined area (conference room or office) until the team is assembled

Assemble Responsible Team If unavailable, reschedule with

19 Questions to Ask OSHA Inspector.. 1. What is the scope of the inspection? 2. What is the reason for the inspection? Random Programmed inspection Response to a complaint 3. What workers/company officials does he want to interview?

20 OSHA Documents Typically Reviewed 1. Injury and Illness Summary (OSHA 300 logs) for the past 4 years 2. Specific Injury Reports for the past 4 years 3. Written Hazard Communication Plan (Chapter C in Safety Compliance Manual) 4. Material Safety Data Sheets (MSDS) for hazardous chemicals that are used or stored on site (e.g. cleaning products)

Specific Injury Reports for the past 4 years 3.

21 OSHA Documents Typically Reviewed continued 5. Written Programs Emergency Action Plan Confined Space Entry Procedures Lockout/Tagout Procedures Housekeeping Plan Respiratory Protection and PPE Programs Evacuation Plan Bloodbourne Pathogens

22 OSHA Documents Typically Reviewed continued 6. Training Logs (e.g. hazard communication) 7. Inspection and Maintenance Logs of Equipment

23 During the OSHA Inspection Take an employee to the side as soon as OSHA shows up and have him/her go on a quick survey of the facility to make sure guards are all in place and all electrical boxes are shut and fire extinguishers are hung up in their places and unobstructed Fix what you can immediately!

24 More things you can do Take good notes or bring another employee along to do so Use your own camera to take the same photos Inspector takes Ask to be present during any employee interviews May not be allowed for non-management employees Be polite and treat Inspector with respect Think before you speak answer questions honestly

25 During the OSHA Inspection Generally, do not tell OSHA Inspector to come back when they have a warrant Do not volunteer information that does not relate to their visit/inquiry Do not ask questions about a regulation that does not relate to their visit Do not lie, deceive, try to cover up, or forge documentation Do not show OSHA Inspector any safety inspection checklists that you or your insurance company have done If possible Do not lead OSHA Inspector past or through a work area that may be out of compliance with OSHA regulations that day

26 To Prepare 1. Audit Records I-9 s OSHA Logs 2. Quiz Employees Where are Material Safety Data Sheets (MSDSs) kept? Can they find them? Passwords? Where is Personal Protective Equipment (PPE) kept? Is it used? Conduct Mock Inspection

27 3. Ensure Required Posters are posted 4. Let Employees know they have the right to have a lawyer or company representative present at the interview.

28 Helpful Tips To Limit I-9 Liability 1. Train HR staff on I-9 Compliance Timeliness of Completion & Avoiding Errors Document Review 2. Conduct External I-9 Audit Internal audit, in alternative 3. Develop written comprehensive I-9 policies & procedures 4. Consider Electronic I-9 software Develop Tickler System, in alternative

29 Additional Pointers for I-9s 5. Consider E-VERIFY: Friend or Foe? 6. Purge I-9s: 1 year after termination or 3 years after date of hire, whichever is longer.

30 Final Reminders for OSHA Posting Must post Notice of Citations for at least three days Any incident resulting in a fatality or hospitalization of 3+ workings must be reported to OSHA within 8 hours of being informed of the incident May request to be present for employee interview, but request may be denied unless employee is a supervisor

How to Prepare For an Agency Inspection

How to Prepare For an Agency Inspection Spotlight on Animal Health Business Operations: A Legal Update Husch Blackwell LLP March 5, 2015 I. Potential Agency Inspections A. Federal Agencies Understanding and Preparing for Governmental Inspections