How to Handle a Governmental Investigation
Many State and Federal laws give governmental agencies the right to inspect a workplace or place of business. Some of these agencies can enter and inspect without any prior notice, while others will make prior arrangements before conducting an inspection. Agencies such as Cal/OSHA, other State safety, or environmental agencies will usually conduct inspections without any prior notice. On the other hand, agencies such as the Equal Employment Opportunity Commission, and State civil rights agencies like the Department of Fair Employment and Housing, will usually schedule an appointment before conducting an on-site investigation. Other governmental investigations might also include routine visits from fire agencies or building inspectors, and occasionally law enforcement personnel.
One of the most stressful events which can confront any employer, business owner, or manager is an on-site investigation by a local, State, or Federal governmental agency. Most employers are not prepared for such investigations and consequently make serious mistakes. These mistakes can prove very costly to the business that is the target of the inspection.
Employers generally follow one of two approaches in handling a governmental investigation. First, there is the "roll over and play dead" approach. Under this approach, the employer acts out of fear and intimidation. The employer believes that the investigating agency can make matters so difficult for the business that the safest approach is to offer no resistance of any kind to the investigating agency. Employers that adopt this strategy answer all questions asked of them, and volunteer information to the agency with the hope that the agency representative will be convinced of the employer's sincerity and will not treat it harshly. Any documents requested by the agency will be eagerly produced on the theory that the employer has nothing to gain by offering any resistance. The employer hopes that by providing unquestioning cooperation, the agency representative will be satisfied that the business is complying with the law and will withhold any adverse enforcement action.
In direct contrast to the approach described above is another approach which could be called the "stone-walling" method. Businesses that follow this approach believe that the agency should be resisted or challenged at every opportunity. Frequently, the employer has not considered the legal basis for challenging an agency's action, or whether under the circumstances of its situation it is in the business's best interest to mount such a challenge. Employers adopting this approach believe that if they act firmly or "tough", then the agency may be deterred from taking any adverse action against the business.
Each of these approaches is flawed. With the first approach, the employer never asserts its legal rights and leaves itself open to the risk that the agency may attempt to compel the business to take actions that are not in the company's best interests. The agency may be acting beyond its authority or jurisdiction, or may be requesting a business to commit to actions which could be successfully challenged.
The second approach could prove unsatisfactory for the business. In the face of employer resistance, the agency might commit its resources toward vigorous enforcement with the result that the business is put to substantial additional expense.
The employer should adopt a balanced approach. Any business should know its legal rights. It should define its vital business interests and prepare to defend those interests should it face an investigation by an agency. Then the business will train a representative or a group of representatives so that they will be prepared to handle an inspection or investigation. These individuals can then act confidently and correctly to defend the company's business interests during an inspection or investigation.
It is impossible to anticipate all of the questions or issues that could arise during a governmental investigation. However, following the suggestions set forth below will go a long way toward helping employers prepare for an investigation and protect an employer's legitimate business interests.
Preparation
Designate a management representative to be responsible for handling governmental investigations and inspections. Make sure that this individual is fully trained. A fully trained management representative will be better prepared to deal with important issues that may arise during an investigation.Know Your Rights
Know the rights employers have during an inspection. Decide, as a matter of Company policy, how you wish to exercise those rights.Credentials
Before permitting any inspection to proceed, always check the credentials of the government representative. Unfortunately, unscrupulous individuals have posed as government investigators to gain access to businesses to obtain information for competitors or for other reasons. If you have any doubt about the individual who has appeared at your workplace, telephone the government agency where the individual claims to be from and verify that the individual does in fact work for that agency.Purpose of Inspection
Before the inspection or investigation begins, ask the inspector to state the reason or basis for the inspection. The reason for the inspection or investigation will have an impact on how you choose to exercise your legal rights.Professionalism
An inspection can be a very stressful experience. While it is important to remember that the designated representative represents the Company, that representative should always conduct himself or herself in a completely professional manner. There is nothing to be gained from hostile, unnecessary or contentious behavior.Accompaniment
If the employer has the right under the particular circumstances to accompany any inspector or investigator during the inspection, then fully exercise that right to accompany the inspector during the inspection of the facility. If there is more than one inspector, assign a like number of management representatives to accompany the inspector. NEVER PERMIT AN INVESTIGATOR TO GO THROUGH YOUR FACILITY UNACCOMPANIED BY A REPRESENTATIVE FROM THE COMPANY.Notes
Take careful and complete notes of everything that happens during the investigation. If the Company representative has access to a video-camera or similar device, use it! Record or videotape the entire inspection or investigation. A thorough and complete record will be invaluable if there are any subsequent legal proceedings relating to the inspection or investigation.Do Not Volunteer Information
During the inspection, the employer may be asked various questions by the inspector. Answer only the question posed by the inspector; provide only those documents specifically requested by the inspector. Do not volunteer information which is not requested by the inspector or make statements about issues, matters, or conditions that are not covered by the question. Resist the temptation to volunteer information in an effort to convince the investigator that the company has done nothing wrong, or that the employer is "innocent."Documents
The employer is required to maintain certain documents under various Federal and State regulations. Should the inspector request other documents, ask the inspector to state the reason for the request, and then consult with other management officials or an attorney before agreeing to turn over these documents.Listen
If the inspector or investigator wishes to conduct a meeting with management representatives at the end of the inspection or returns later for a meeting, be a good listener. Avoid making commitments during any such meeting, especially commitments which involve considerable expense or important decisions for the business. Simply tell the investigator that the company will follow-up.
Following these suggestions should help the business deal with this important subject. If other questions or problems should arise, never be afraid to ask for help.
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