ALERT: DLSE Conducting Surprise Inspections (04/02/09)

Thursday, 02 April 2009 05:19

Wage & Hour

The Labor Commissioner has the authority to investigate employee complaints and claims.  Once a complaint or claim is filed, the Bureau of Field Enforcement (BOFE) has free access to all places of labor. It is a misdemeanor to refuse them admission or willfully fail to furnish requested records or other information. 

These officials may issue subpoenas to compel the attendance of parties and witnesses and the production of books, papers and records. They may administer oaths, examine witnesses under oath, and take depositions.  You may be given a notice to appear for an informal conference before a Deputy Labor Commissioner.

Remember, just because someone from the Labor Commissioner's office shows up with a subpoena, does not mean they can take records that day.  Also, employees have the right to refuse to speak with agency inspectors.

COUNSEL TO MANAGEMENT:

If Government Inspectors Show Up:

1.    Direct and accompany the agent to the office or other place where they can find the company representative responsible for dealing with the agency. 

2.    Determine who the investigators are.  Ask for a business card.  Make sure they really are with the agency they are claiming to be with.  Do not rely on the "inspector's" assurances. If you are suspicious, call the agency to verify their identity.  Contact your attorney immediately.

3.    Find out why the investigators are there.

4.    Meet with the agent prior to the inspection to identify the scope of the inspection. 

5.    Let employees know that they have an absolute right not to speak with the agents.

6.    You should avoid a situation where you consent to allow agents access to any and all records and locations on your property. 

7.    Stay calm.  Be polite no matter how you feel.  Losing your temper will only make matters worse.  Don't refuse or delay providing documents you are legally required to provide.  Don't forget you can ask for time to compile the records requested by agents. Don't allow documents to be removed from your property without making copies, and don't turn over more documents than the law requires. For example, nothing in the law requires you to give any agency original documents.

8.    Know your rights.  For example if a government agency shows up, no one is required to answer any questions.  Make sure you consult with your attorney before giving agents access to employees or management, or before allowing any press contacts.  Also, you have the right to continue operating your business during the government agency visits. 

9.    Make sure agents comply with laws and regulations while on your property.  For example, if employees are required to wear hardhats in an area, inspectors should be too. 

10. Accompany the agents on their inspection, whenever possible. 

11. Release employees in inspected areas and have them relocate to other areas, if practicable.   

12. Photograph facilities and equipment and photocopy documents which the agents seem especially concerned about.  Take notes on the agent's comments or, with the agent's permission, tape record your conversations with them.

After the visit, the agent should have a closing meeting with you.  If the agent does not have a closing meeting, ask for one.  Make sure you understand the agent's concerns before they leave.   

The goal of this article is to provide employers with current labor and employment law information. The contents should not be interpreted or construed as legal advice or opinion. For individual responses to questions or concerns regarding any given situation, the reader should consult with The Saqui Law Group at (831) 443-7100 in Salinas.