Preparing for an inspection from the Environmental Protection Agency (EPA), Occupational Safety and Health Administration (OSHA) or Immigration and Customs Enforcement (ICE) needs to take place long before an inspector arrives at the door, by establishing protocols such as a response team, facility policies regarding inspections and record and document preparation, she said.
“Preparation makes all the difference,” Leah Ziemba, partner in the law firm, Michael Best & Freidrich LLP, said. “The key is getting the right people at the table in advance to think through what [regulatory] agencies … might appear at your doorstep. Who are the right people to have around the table to think through how an inspection should go and what are your facility’s policies?
“For example, if EPA shows up at your door and they want to start taking photos, do you have a policy regarding photos or samples, that sort of thing?”
A farm or other agribusiness also must determine well in advance what records it is required to keep, how long they must be kept and how they are being stored, she said. Are they electronic or are they paper? Are they in one location or in several locations? Are they kept with other documents that are not required to be kept?
“Thinking through your practical document storage and retention protocols is key,” Ziemba said. “If an agency shows up and they have the right to certain records, you want to be able to show them those records without giving them access to other parts of your business that might be irrelevant to why they are there.”
Immigration I-9 forms are one example, she said.
Consider a policy of keeping I-9 forms separate from personnel and other records, Ziemba said, in the event ICE requests in writing a Form I-9 audit. Presentation of the agency’s letter requesting the forms does not allow ICE to enter the premises or search any part of the premises, she said. I-9 documents are to be provided to ICE within three days.
“We have a team of immigration attorneys and employment attorneys, and they advise clients to consider a policy of keeping I-9 forms separate from personnel records to ensure that the I-9 forms can be presented without having to sort through other records,” Ziemba said. “You do not want to provide any governmental authority, including ICE, with additional information that’s not requested. That just increases the likelihood that they are going to find something to come back and follow up on with you.”
With regard to government agency inspections of the premises, a business must determine in advance under what circumstances and to what extent the farm or facility will cooperate with an agency inspector. Know the consequences of cooperation and not cooperating, Ziemba said, as well as understand what the business can and cannot insist on.