Mar 22, 2018

Seeing eye to eye with inspectors

In establishing relationships with Department of Labor (DOL) investigators, there is a fine line between being cooperative and being walked on.

That is the message shared by Ann Margaret Pointer, attorney with Fisher & Phillips in Atlanta, Georgia.

“Some investigators, like other humans, are bullies,” she said in a presentation made on the topic of preparing for a DOL audit.

“If somebody tells you that an H-2A employer must cooperate with any (DOL) employee who is conducting an investigation, ask the investigator to show you authority for specific information in light of your willingness to stipulate to facts the investigator claims to be. H-2A employers have promised to cooperate in connection with DOL investigations in order to obtain certification.”

“On one hand, you don’t want a fight or an unnecessary fight or a bad attitude, but you don’t want to be walked on either,” Pointer said.

Preparation is the key, she said.

“Don’t wait for a county or state investigator or DOL to give you a checklist of what the problems are midseason – make your own regular investigations/inspections to stay in compliance and avoid penalties.”
If violations are determined, appeals procedures could be pursued.

Generally, the appeal must be received by the government officials as specified in the notice of fine or violations within 30 days of the date of the notice.

“You want to make sure you have raised all possible defenses,” Pointer said.

In some cases, you may want to provide and obtain further information through a personal or telephone meeting with the appropriate government official. It is possible that claimed violations can be rescinded, and civil money penalties, which are now much higher than they were before last Aug. 1, can at times be reduced, she said.

— Gary Pullano, managing editor