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What To Do When The

Government Comes Knocking

Are You Ready?

Michael Colgan Harrington

860.240.6049 | [email protected]

Lauren Meris Filiberto

203.772.7733 | [email protected]

March 20, 2013

• OSHA – Occupational Safety Health Act

• ICE – Immigration & Customs Enforcement

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.‖

For ICE…

1. I-9s are in order

2. Only properly authorized individuals are

employed

Types of OSHA Inspections

1. Imminent Danger

2. Catastrophic and Fatal Accidents

3. Employee Complaints

4. Programmed High Hazard Inspections

5. Re-Inspections

OSHA’s National Emphasis Program—

Nursing and Residential Care Facilities

• April 5, 2012

• 3 years

• Specific Hazards being Targeted

Ergonomic Stressors in Patient Lifting

Blood borne Pathogens

Tuberculosis

Workplace Violence

Slip, Trips and Falls

Inspections for OSHA

1. Voluntary Consent

2. Search Warrant

ICE Audits are at

Unprecedented Levels

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.

• 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

Why Should I Care?

I-9 Inspection Process

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.

ICE Notices Following

Inspection

• Notice of Technical or Procedural Failures

Employer has 10 business days to correct

technical violations (unless become

substantive violations)

• 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

“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.

Notice of Intent to Fine (NIF)

May be issued for substantive, uncorrected technical,

knowingly hire and continuing to employ violations.

The OSHA Inspection…

1. Opening Conference

2. Document Review

3. Walk Through

• Accompany Inspector at all times

• Can cite for anything in ―plain view‖

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

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

What to do when the Government

Inspector knocks…

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?

Questions to Ask OSHA

Inspector..

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)

5. Written Programs

• Emergency Action Plan

• Confined Space Entry Procedures

• Lockout/Tagout Procedures

• Housekeeping Plan

• Respiratory Protection and PPE Programs

• Evacuation Plan

• Bloodbourne Pathogens

OSHA Documents Typically

Reviewed… continued

6. Training Logs (e.g. hazard communication)

7. Inspection and Maintenance Logs of

Equipment

OSHA Documents Typically

Reviewed… continued

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!

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

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

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

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.

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

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.

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