Mar 17, 2018

Assert your farm’s rights in dealing with inspectors

Preparing for a visit from a U.S. Department of Labor (DOL) investigator who arrives on a farm to conduct an audit is a tedious, yet absolutely essential process.

Presentations made by attorneys Ann Margaret Pointer and Joshua Viau before audiences of farm operators stressed that audits can be triggered by a number of factors, including employee complaints, media reports, private litigation, referrals from other agencies or advocacy groups and those programmed for industry and specific programs such as H-2A.

Likely the most trepidation on the part of farm managers takes place from random, unanticipated visits by DOL inspectors.

Speaking at both the National Council of Agricultural Employers Ag Employer Forum Nov. 29-Dec. 1, and at the Great Lakes Fruit, Vegetable and Farm Market EXPO held a week later, Pointer and Viau, with Fisher & Phillips in Atlanta, Georgia, outlined proper strategies when farms are in the DOL’s crosshairs.

“You should plan in advance who will be present at the opening and closing conferences (with DOL),” Pointer said.

That information should be recorded for the DOL officials.

Farms must keep and organize records/copies of all documents requested by and provided to the DOL investigators. Mark confidential documents as confidential.

“Confirm your understanding in writing if the investigator does not provide you a written list of requested documents and timetable for presentation,” Pointer said. Operators should date everything and establish to whom all documents were provided. Whoever has the first contact with the DOL – in the office or in the field – must inform the senior designated management official before any investigation is started. One person should manage the investigation, conduct the opening conference with the DOL investigators, get and secure the credentials of the investigators, make copies of all documents requested and provided, and know the scope and nature of the investigation.

Farms can have two managers at all stages, but it is essential that at least one person be involved from start to finish at the closing conference.

Attention to detail

The attorneys stressed the importance of looking out for your own interests. Determine if the immediate on-site investigation, collection and presentation of records and employee interviews will unduly interfere with critical operations. Determine if your legal counsel will be retained to provide guidance during the investigation either on-site or by telephone.

“Keep in mind, if your operation is in the H-2A program, it has committed to compliance with other federal, state and local laws so DOL investigators are increasingly broad, particularly with respect to laws it enforces,” Pointer said.

Demeanor also is a consideration in the process: “You be reasonable; expect the government representatives to be reasonable,” Pointer said.

It doesn’t matter if your records are electronic or paper; just make sure they are permanent and not subject to automatic erasure or deletion because you have exceeded the permissible size or your emails are subject to deletion after specific period, Pointer said.

DOL does have the authority under several statutes to conduct a farm investigation. H-2A investigations require employers to allow investigators to enter and inspect land, vehicles, housing and records.

Pointer said investigators will typically want to interview workers privately. Establish where investigators may go to conduct the employee interviews. Do not agree to sacrifice food safety requirements for immediate in-field interviews.

“If it is possible, take the workers to the side of the field one at a time, or allow workers time for private interviews at the end of the meal period or beginning or end of the work day or in employer-provided housing.

“You have a right to continue to operate your business and avoid shutdown of operations,” Pointer said.

DOL expects to be presented basic records within 72 hours of a request.

Employer representatives may participate in and be present for management employee interviews as long as the government is not investigating the status – such as the Fair Labor Standards Act (FLSA) overtime status – of the managerial employees.

Nature of the business

Interstate commerce practices come under close scrutiny, Pointer said.

“The real issue is, are your employees engaged in interstate commerce? Are the employees engaged in the production of goods for commerce or in handling, selling or otherwise working on goods or materials that have moved in or are produced for interstate commerce?

“The problem could be that DOL asserts bad violations, issues a press release naming your customers and is wrong on the law or facts,” she said. “The Justice Department in criminal press releases, acknowledges people and companies are innocent until proven guilty. DOL has not been so careful.”

Pointer said DOL often asks for tax returns and names of customers, “but DOL has never cited authority for such disclosures to us.”

“We have convinced investigators to check with their offices or otherwise agree that stipulations serve in lieu of such potentially confidential business information,” Pointer said. “You should be able to stipulate to at least the dollar volume to establish (FLSA) coverage without disclosing your tax returns and that your employees engaged in interstate commerce without having to disclose who the customers of your farm are.”

— Gary Pullano, managing editor