As an employer, you may have already experienced the discomfort of having the “Men in Black” — i.e., agents or investigators from a government agency — appear on your doorstep. With increased enforcement efforts by various federal and state agencies, the likelihood that you’ll be visited by regulators isn’t an “if” but a “when.” They may be seeking immediate access to your facility, your records, or your employees. Their arrival and request for access present the most dangerous time in the entire investigation, case, or matter that’s about to unfold.
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What to do when federal or state regulators come knocking
There are two countervailing principles employers must keep in mind when government regulators show up. The first is that you don’t have to admit anyone into your facility or give them access to your records unless they appear with a warrant. You have every right to tell them, “If you don’t have a warrant, you cannot come in and we aren’t going to cooperate with you in any way.”
The bad news is, they can get a warrant very quickly. However, even if they obtain a warrant, they don’t have the right to speak with your employees at your facility. The search warrant merely entitles them to seize potential evidence. They can certainly talk to your employees at home or anywhere else, but they cannot pull them off the work floor to talk with them.
The second principle to remember is that you get only one chance to make a first impression. If you succeed in taking the hard line and forcing the government agents to jump through hoops, you can be assured that they will develop a negative view of your organization that will come back to haunt you in the long run. However, this strategy also recognizes that you aren’t prepared for a surprise visit, and your people could well make damaging mistakes.
It’s important to remember that in most cases, employers don’t know the purpose of the agents’ or investigators’ visit. They may be at your facility to conduct an investigation in an attempt to determine the truth, not to collect evidence against you in a predetermined effort. On the other hand, the agency may have already reached an internal decision that you and your company are guilty of something. Their visit at that point is to gather evidence to be used against you. Of course, they aren’t going to tell you which alternative applies in your case.
Get a professional involved
That leaves us with the question of what to do. The first thing you should do, before saying anything, is pick up the phone and call your lawyer. Of course, that advice runs contrary to what you intuitively believe you should do. Your initial reaction probably is to cooperate completely and assure the agents of your innocence, thereby solving the problem without incurring any unnecessary legal expenses. You may also believe that by “lawyering up,” you’re giving the impression that you’re guilty and have something to hide.
However, if the agents are professionals — and generally they are — they won’t be the least bit offended but will welcome the opportunity to speak to your attorney. If they aren’t professionals, you certainly don’t want to talk to them since they will be attempting to take advantage of you. Remember, your lawyer is used to talking to such people, and they are used to talking to your lawyer.
Your lawyer will want to get on the phone with the investigators and assure them of your complete cooperation. He will make sure they understand that it’s absolutely essential that he’s there during the interview or investigation. He will set up an appointment to join you in a meeting with the investigators, determine what they want, and make arrangements to provide it to them.
When you call your lawyer, you take the onus off your company and put it on him. Lawyers are designated blame-takers, and we’re more than willing to assume that role. Your lawyer will have gained enough information from his discussion with the investigators to know exactly what’s going on, and he will immediately meet with you to prepare for the investigation.
By adopting that initial strategy, you may avoid unduly irritating the investigators. It will also give you and your lawyer sufficient time to figure out how to deal with the situation.
The appearance of the government agencies or a letter telling you they’re coming may be your first indication that an investigation of your company is under way or that a complaint has been filed against you. That notification imposes an immediate obligation to preserve any potential evidence, including e-mails, from anyone in your facility dealing with the allegations, complaint, or investigation.
Your management personnel must be instructed immediately to preserve all relevant e-mail and not give in to the temptation to start deleting anything that could be problematic. Deleting electronic evidence could be deemed despoliation. Such actions can subject you to numerous penalties, including inferences that what you deleted was evidence contrary to your interests.
Of course, the same is true for paper documents. When the investigation starts — i.e., when you become aware of it — no one should be allowed to destroy anything that would be potential evidence. The penalties for doing so are drastic.
HR Guide to Employment Law: A Practical Compliance Reference
Who is likely to show up?
Various government agencies will send their representatives to your door. Of course, there’s the Occupational Safety and Health Administration (OSHA) and its state equivalent. There’s also the Office of Federal Contract Compliance Programs (OFCCP), the Equal Employment Opportunity Commission (EEOC), the National Labor Relations Board (NLRB), the U.S. Department of Labor (DOL) and its state equivalent, not to mention various local and state human relations commissions and federal and state law enforcement agencies.
Let’s examine the idiosyncrasies of the various agency investigations. First, we’ll look at what happens when a serious workplace accident has occurred.
OSHA/ state OSHA equivalent agency. Statutorily, OSHA, your state OSHA equivalent agency, the National Transportation Safety Board, the U.S. Coast Guard, and other such agencies are going to get into your workplace immediately. You will have to give them access to what they want. However, that doesn’t include access to your employees. Your lawyer will arrange the interviews with employees and be present at certain meetings. If there isn’t an immediate emergency, it’s possible to schedule the agency’s visit and its access to your employees.
NLRB. Agents from the NLRB may also appear at your facility, asking for access to your employees. Obviously, they are there to collect evidence against your company, not in support of it. They will be asking to interview witnesses identified by a union whose testimony will be adverse.
Your attorney will advise the NLRB agents that they may not have access to your employees because they’re working and you cannot afford to disrupt the workday to sit through lengthy interviews. They are certainly free to interview any employees who may wish to be interviewed at some other location when they aren’t working. The NLRB will also seek to interview managerial employees. The Board generally recognizes that managers have the right to have the company attorney with them during the interviews. Your attorney will decide which managerial employees should be interviewed, schedule interviews with the NLRB, and prepare the employees for what to expect.
The NLRB will insist on taking affidavits from the witnesses, which will be used extensively during testimony and cross-examination at any potential trial. Your attorney will base his decision about whether to permit employee interviews on an analysis of the case’s strength. If there’s a reasonable probability that allowing access to management witnesses and providing affidavits to the Board won’t result in a complaint being filed, your attorney will probably recommend that interviews and affidavits be granted. If, however, the case is strong enough that the Board will undoubtedly issue a complaint and take the matter before an administrative law judge, your attorney will deny access to employees so the Board won’t have their testimony ready to be used at trial.
EEOC. The EEOC stands in a virtually identical position with the NLRB. Although the EEOC or its state equivalent will usually contact an employer to set up an appointment, there’s always the chance of an “ambush” appearance. Again, you must remember that the employees with whom the agents want to speak are witnesses identified by the person who filed the complaint and are likely to support her charge. Consequently, you don’t want to make things easy.
Your attorney will state that the employees cannot be called away from their jobs and the EEOC will have to interview them at a later time. Likewise, any interviews of management employees will have to be scheduled with your attorney present. He will prep the witnesses if he makes the tactical decision to cooperate.
OFCCP. One of the most frightening unannounced agency appearances occurs when the OFCCP shows up at a federal contractor’s door and asks to look at various records. Although the OFCCP generally writes a letter informing the employer of an audit and requesting a scheduled audit, surprise appearances aren’t unheard of. Again, the solution is to have your attorney speak to the investigator to schedule a meeting.
Your attorney will explain that your employees are busy with other matters and cannot possibly stop to collect the records the investigator would need immediately. He will also explain that he is tied up and cannot be there instantly. The investigator will readily agree but will want to schedule a visit as soon as possible. Even so, it’s better for everyone to calm down, take a deep breath, and get the information together rather than consenting to a surprise interview for which no one is prepared.
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Police. Even more difficult to deal with is the appearance of the police, FBI agents, or other law enforcement personnel seeking to apprehend or speak with one of your employees. Of course, your initial reaction is to cooperate immediately and grant them whatever access they seek. However, that could be extremely dangerous.
Again, after speaking with your attorney, you should tell the law enforcement officials that you will have the employee come to the office to meet with them. You don’t want a possible confrontation between one of your employees and law enforcement that could “go south” quickly and lead to a disaster in your facility. Accordingly, you should provide access to a conference room or other private meeting place.
The law enforcement officials may ask to search the employee’s locker. Undoubtedly, your carefully drafted policies make it clear that your company owns the lockers and has the right to search them at any time, but the policy doesn’t defer that right to law enforcement officials. Consequently, you should restrict the employee’s access to the locker and tell the agents that they should obtain a warrant to search it. Your cooperation will be appreciated, and you will avoid liability for allowing someone else access to the locker without the employee’s permission.
When government agents or law enforcment personnel appear at your doorstep, you should take pause rather than reacting immediately. You and your attorney will decide how to cooperate with the investigation. Let your attorney take the responsibility for scheduling any interviews, inspections, or audits, and you will avoid making statements or disclosures that will come back to haunt you in the form of unwanted litigation or liability.