In the world of human resources, we deal with many different government agencies and other law enforcement officers. From time to time, government officials or representatives — let's just call them "agents" — will show up unannounced at your doorstep and demand information, documents or access to people.
How you handle these situations is critical. Although each situation is different, this article provides some general guidelines for handling such visits.
1. Keep calm
Even though the agent's visit may be a complete surprise, remember that you are the point person for your employer. You must remain calm and keep your composure.
Use your wits and skill to buy time until you can assess the situation and implement a plan for the immediate dealings with the agent.
2. Identify the agent
Once you regain your composure, identify the person at your door. What is his name? What is her title? What agency does he represent? What is her official status or capacity?
Often times, the person will flash a badge and try to assert his authority. Most people respect the government's authority and are inclined to do whatever the agent asks them to do. But before you give in and submit to authority, you need to slow down and gather more information.
3. Identify the purpose of the visit
The next step in the process is to determine the purpose of the visit or investigation.
Are they there to review payroll documents, working conditions, safety practices, immigration compliance or for some other reason? Is the visit to investigate a criminal matter or a civil matter? Is the subject of the investigation the employer or an individual employee? Is the employer a third party to another matter?
4. Determine the agent's authority
Does this agent have a warrant? If so, more immediate action is required. However, many times, the agent does not have a warrant and his authority is limited.
For example, in the world of immigration, the agent will more often just have a "Notice of Inspection," which gives 72 hours to respond. If the agent has nothing and is there simply "requesting" to obtain information, documents or access to people, you generally have a right to refuse access at the moment he appears.
Of course, that may not deter the agent from flashing a badge and trying to bully her way to gaining access. If within your rights, remain strong and do not feel obligated to submit to the "request."
Moreover, if the agent is serving a complaint or a subpoena, the document will generally include a date certain for when the response is required, and no immediate access will be necessary.
5. Call for assistance
After you have identified the agent, purpose and the authority, it is generally helpful to say that you are "in the middle of something" you have to finish but will try to "get back in a few minutes."
Be as courteous as possible, but do all you can to buy some time to think strategically and call for help — from your supervisor, manager, HR consultant or lawyer. Even when the agent has a warrant and demands immediate attention, you can almost always get a few minutes to regroup and seek help.
6. Preview the information, people or scene
Usually, it is possible to review paperwork or to alert people who may be interrogated by the agent before the agent views the paperwork or talks to the person. Even just a heads up can help so that the person is not caught off guard and cold.
In an OSHA investigation, have someone quickly inspect the documents or area that the agent wants to inspect before providing access. In a wage and hour investigation or immigration investigation, you usually have time to do a "self-audit." You can even self-correct I-9 forms in the 72 hours before you produce them.
7. Escort the agent to the maximum extent possible
In an OSHA investigation, escort the agent and make a record, including photographs/videos, or even use the same types of measurement devices as the agent.
When management witnesses are being interviewed, you have a right to have an employer representative or even a lawyer present. You do not have such a right when employees are being interviewed, such as by the NLRB, EEOC or Wage-Hour Division.
Working closely with your counsel, you can interview the nonmanagement witnesses before and/or after they meet with the agent.
8. Try to limit the scope of the visit
Most employers want to comply with applicable laws, but they still do not want any more scrutiny by the government than necessary.
Where the agent has a warrant, you can certainly limit the inspection or investigation to the scope of the warrant. In other situations, it may be worthwhile to tactfully try to limit the scope of the investigation.
9. Get in compliance after the visit
If you are not in compliance at the time of the agent's visit, the best thing to do is try to get into compliance and cut your losses.
For example, if there are safety hazards, immediately abate them to protect employees from harm. If there are pay issues, it is best to correct them going forward.
10. Consult your counsel
We cannot overstate the importance of quickly consulting legal counsel. Ideally, you have maintained a relationship and are in compliance so the risk of any government inspection is minimal. You need to have your counsel on speed dial to help when you get this surprise visit and to help you deal with the aftermath (if any).
Since every situation is different, your counsel can help you make decisions that are appropriate under the specific circumstances of each situation.
Conclusion
Each situation may be unique, but the guidelines in this article apply to most visits by a government agent. Of course, the outcome of the agent's visit will be better if you are in full compliance with applicable laws when the agent appears at your door.
