You will not see them coming until they are standing in the shadow of your doorstep.
“We are going to knock on your door and you aren’t going to know we are coming. We like to go out during wet weather. A lot of farmers say we come out during the worst conditions. It is planned. We want to see your facility under the worst conditions.”
Cheryl Burdett, of the U.S. Environmental Protection Agency’s Water Enforcement division, made those remarks during a recent conference in Green Bay, Wis.
Leah Ziemba shared Burdett’s quote with a recent webinar audience as she and Chuck Palmer, partners in the Wisconsin-based law firm Michael Best & Freidrich LLP, offered tips on how farms and agricultural businesses could prepare for a government agency inspection.
Sponsored by Farm Credit East, the “What to do When the Government Shows Up at Your Door” webinar focused on preparing for inspections from such government agencies as the Occupational Safety and Health Administration (OSHA) and Immigration and Customs Enforcement (ICE).
“Rest assured, it’s not by chance that an agency shows up when a facility is under the worst conditions,” Ziemba, who has counseled agribusiness clients across the country on environmental and regulatory compliance issues, said. “They want to see how the facility interacts under the very worst conditions. It underscores the need to prepare in advance, have a clear protocol of how to manage the inspection during that time frame and the follow-up, which are often some of the most critical details.”
Element of Surprise
The EPA’s tactic rings true at OSHA as well, Palmer said. He has worked on OSHA-related cases for more than 25 years.
“OSHA is not going to give you advanced notice of an inspection. They bank upon surprise,” Palmer said. “You’re not going to get a call from OHSA saying, ‘Hey, we’ll be there tomorrow.’”
“It’s been a trend with OSHA over the past eight years to do that,” Palmer, who was named Milwaukee Lawyer of the Year in the area of employment law in 2013, said. “Statistically, OSHA has resources only to inspect each employer in the United States once every 80 years.”
Because of those limited resources, OSHA’s philosophy has been that through enforcement, the agency will send a notice to other employers that they could be next, he said, much like motorists slow down when they see a police officer giving a driver at ticket on the side of the roadway.
“If an organization gets a fine greater than $40,000 from OSHA, the agency will send out a news release to 10,000 media outlets about that fine,” Palmer said. “And there’s a quote or a number of quotes from the area director of OSHA about that particular business and about how they ignored safety of workers. It is definitely the shame game that they have engaged in to get more effective communication to the public about what is expected of businesses.”
OSHA’s media tactic does have a significant effect, especially on companies in a consumer product business, Palmer said.
Focus on Farms
“With respect to OSHA for farm businesses, this is a fairly new experience,” Palmer said. “The agricultural exemption for farms really kept farms and agricultural businesses out from the prying eyes of OSHA for many years, and really until about 2011 (when a fatal accident occurred at a Wisconsin dairy). The growth in the size of agricultural businesses has really brought the focus on them.”
The concentrated attention on agriculture has reached a point where employers in the ag industry need to start looking at the models other regulated businesses have developed to respond to these agency inspections, Palmer said in citing an OSHA program that is randomly inspecting dairies in the state of New York.
So, how does a business handle an inspection? First by knowing its rights provided by the Fourth Amendment to the U.S. Constitution. The Fourth Amendment prohibits an unreasonable search and seizure without probable cause and without a warrant. The amendment applies to every person, including businesses, Ziemba said.
And all searches must be “carefully limited in time, place and scope,” she said.
While a warrant can be required in most cases, asking a government agency to obtain a warrant might not be the best tactic for a business to take, depending on the circumstances, Ziemba said.
A search conducted with the permission of the property owner does not require a warrant but it still must be reasonable, and the consenting party can revoke consent at any time and the search must stop, she said.
Consent can be both when somebody arrives at your doorstop, or it can be given in advance in the form of a permit term, Ziemba said. In addition to providing legal counsel to agricultural clients across the country, she and her husband are part of their family’s dairy operation in Wisconsin.
Inspection Response Team
Preparing for an inspection 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,” Ziemba 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.
Training is Key
Palmer reemphasized preparation, training of personnel and execution of established policies are crucial to any inspection.
“I always tell employers you won’t win your case during an inspection but you can lose it,” Palmer said. “In other words, you’re not there to try to talk the inspector into being convinced that you’re the greatest employer in the existence of the world, and too many employers try too hard, say too much and set themselves up for failure.
“The keys are preparation, thinking about the inspection and the areas where OSHA will go; training personnel how to handle an OSHA inspection when it occurs, and then executing that plan properly,” he said.
Ideally, a business would like to train everyone in protocols for handling an inspection, but that’s not always practical, Palmer said. The receptionist, however, must be in the know.
“There’s an office, so there’s probably somebody that OSHA is going to meet first when they arrive upon your farm or other work area,” Palmer said. “Does that person know what to do in the event that a government agent shows up? Are they going to say, ‘Oh, Joe the owner is out back. Why don’t you go look for him?’ And consent to that person basically beginning an inspection while they look for the manager?
“That’s not the way to approach it. Train the receptionist or the person who is the first line of contact the government [agency] is likely to have.”
It’s vital to designate a company representative to be the point of contact for government inspections within your organization, Palmer said. The designated representative should be present to decide whether or not to consent to the inspection.
But Palmer said sometimes the designated representative might be a couple of hours away.
“[OSHA] Compliance Safety and Health Officers are used to the fact that they need to wait for the person in charge,” Palmer said. “The law allows you the right to an authorized representative and the law allows you the right to demand a warrant.
“So the conversation goes something like: ‘I understand that you need to inspect, but we also have a right to require a warrant. We don’t like to exercise that right, but my expectation is that if I did exercise that right it would take two to three days to get a warrant. We’re not trying to delay the inspection that long. We need two hours because we need our authorized representative here. We will cooperate with you, we will consent, but that is the condition to that consent.’ And that has always worked in the dialogue with OSHA.”
The designated representative needs to take control of the inspection from the outset, and do it in a polite but firm way – remembering the inspector is a guest at your facility or farm and the inspector must follow the same safety protocols you require any guest to follow with regard to footwear, safety goggles, shower-in, or whatever the case might be, Palmer said. This demonstrates to the inspector from the outset the business is safety conscious, he said.
“Always be polite. Everything you learned in kindergarten is all you need to know of how to deal with an OSHA inspector,” Palmer said. “You’re polite, treat them like you’d like to be treated. Understand that they are a human being and they have emotions as well.”
The inspection team should be set up in a way that the person who is accompanying the OSHA inspector is not necessarily the person who knows the most about the operation, Palmer said.
“And that becomes important because in many of these government investigation systems, knowledge can become a basis for a heightened enforcement or heightened penalty. ‘Not only did you violate a rule but you knowingly violated this rule day after day after day.’ So you minimize the amount of direct knowledge [the designated company representative has],” Palmer said.
Instead, the designated representative should take the inspector to the person in the organization who does have the expertise in the area in question.
The designated representative should ask questions to determine the scope of the investigation, Palmer said.
Determine What’s Reasonable
Part of what the designated company representative must do is determine whether or not the compliance officer has probable cause and is going to conduct a reasonable inspection, he said.
If the OSHA officer won’t cooperate, Palmer said, the company representative might be put in a situation where he or she says something like this: “I am requiring you to get a warrant if you want to expand. I will consent to the inspection that you have the cause for, based on this complaint. I will not consent to that expansion. What do you want to do?”
In the event the designated representative is not near the farm or facility, the company should consider drafting a “letter of authority” requesting management be present for the inspection. The letter should be kept on file so it can be presented to an inspector. The letter shows no intent to deny inspection, just to have the authorized representative present, Palmer said.
Inform employees about their rights – they have the right to take part in the interview, refuse to be interviewed or can have a representative with them during the interview, Palmer said. Do not fear the inspector. He or she is a guest at the facility and should be treated with respect.
Get the Picture
Obtain a camera and take photographs, Palmer said, and if you don’t have a camera, send someone to buy several disposable cameras. Take photos of everything the inspector takes pictures of, trying to match angles.
“Your fingers are in the belt loops of that inspector. You go where that inspector goes. These inspections happen very quickly, and then once OHSA is done performing its inspection, inspectors will go back to their office, other managers will look at the documentation they pulled together and the pictures and they may decide additional citations may be merited just based on pictures and verbal or written discussion,” Palmer said. “It may be up to six months before you end up receiving a citation. It is very difficult to decide what to do once you get a citation, if you have not been with the inspector at all times during the inspection and documented so you remember what happened, and remember the details.”
The exception to the belt loop rule is OSHA does have the right to interview employees privately, Palmer said, but only non-supervisory personnel will be privately interviewed.
OSHA will take pictures, and those photographs become key evidence in issuing a citation.
“It’s very important to have a camera with you during the inspection,” Palmer said. “Those pictures become very valuable in preparing for a response to a citation.”
If the business has photos that match OSHA’s pictures, then sometimes a company can get ahead of the citation process and communicate to OSHA officials that what they think they saw was a violation is actually explainable by some other detail they didn’t know about. In some cases, the company can avoid a citation.
Makes notes of all comments and observations, and take photos of all measurements being taken by the inspector, Palmer said. The inspector cannot require you to demonstrate anything for his or her viewing. The inspector does not have control of employees or the facility – remember they are a guest.
If the inspector asks you to remove employees from an unsafe situation, do not argue just remove the employees but do not admit guilt to anything, Palmer said.
Have OSHA make a list of documents they want. Don’t violate the fingers-in-the-belt-loops rule by running around making copies for the inspector.
After the inspection, the compliance officer will have a closing conference. Listen very carefully to what the inspector says, taking notes as necessary.
“Are there things that OSHA misunderstands for which we can fill-in the gap? Get as much information and ask as many questions as you can during the closing conference,” Palmer said.
State agencies generally follow the same standards as federal OSHA, he said. In addition, State governments do not have any additional authority to inspect than federal agencies do.
“The Fourth Amendment still applies,” Palmer said.