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Tips & Tactics -- Government Investigations
07/06/2010

One of the new realities for employers is the increased risk of a visit from an investigator working for the government.  These visits can come at any time, without warning, and may be conducted by any number of government agencies.  The typical visit for an employer is likely to be a wage and hour audit or an OSHA safety inspection.  While these (and any other agency visit) inspections are in widely varying areas, there are some common themes for employers to consider.  The worst time to prepare a workplace for an inspection/audit is when the inspector shows up at your door.  Here are a few quick thoughts should your workplace receive an unwanted visitor from the government:

  • Plan ahead:  The time to develop a game plan for an inspection is well in advance of the actual investigator's visit.  Responding to an inspection in "crisis mode" is highly likely to lead to mistakes or oversights.  The ultimate outcome is almost certainly not going to be as favorable to the Company as a situation in which a well-conceived plan is in place.
  • Communicate the Plan:  Make sure all management team members all the way down to the lowest level of management understands the Company's plan of action should an investigator arrive.  There is nothing worse than failing to implement a well-planned strategy because the individual meeting with the inspector doesn't know the strategy. 
  • Have a Core Team:  A group of individuals on the management team should be designated to handle the Company response to the arrival of any government investigator.  This group should be intimately familiar with the response strategy and trained to execute the strategy.  The core team will handle all aspects of the government investigation. 
  • Limit Management Team Exposure:  A manager's comment to an investigator can be binding on the Company.  For this reason, it is critical to limit the investigator's contact with management team members.  Under no circumstance should an investigator be permitted to interview a manager without legal counsel present.  It is typically a good idea to have counsel assist in this area to avoid statements that can ultimately be very costly.  
  • Get Help:  No matter how many times the investigator tells you this is a friendly visit designed to assist your Company with its compliance, don't believe the story.  The end outcome of the investigation is often a citation of some sort that almost always results in a penalty payment or a payment to an employee.  Most of the time, an investigator is visiting your Company because of an employee complaint.  This means the investigator already has a plan and an agenda of the types of information or evidence the government is seeking.  So you need to get legal counsel involved in the process to provide guidance as soon as you receive notice about the investigation.  Don't provide any information or documents until you have talked to a lawyer to help guide you through the process and plan a comprehensive strategy.     

Let's hope you never need to deal with these issues.  In the current expansion of investigator staffing, it is clear the federal government will be stepping up investigations and enforcment in the coming days.  There has already been a noticeable increase in the volume of enforcment activity by the U.S. Department of Labor with promises of more to come in the future.  Now is the time to prepare your contingency plan for just such a visit. 

 


Editors
Don Berner Image
Don Berner, the Labor Law, OSHA, & Immigration Law Guy
Boyd Byers Image
Boyd Byers, the General Employment Law Guy
Jason Lacey Image
Jason Lacey, the Employee Benefits Guy
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