What To Do When The
Government Comes Knocking
Are You Ready?
Michael Colgan Harrington
860.240.6049 | mharrington@murthalaw.com
Lauren Meris Filiberto
203.772.7733 | lfiliberto@murthalaw.com
•
OSHA – Occupational Safety Health Act
What is expected…
For OSHA…
1.
Standards
2.
General Duty Clause
For ICE…
1.
I-9s are in order
2.
Only properly authorized individuals are
Types of OSHA Inspections
1.
Imminent Danger
2.
Catastrophic and Fatal Accidents
3.
Employee Complaints
4.
Programmed High Hazard Inspections
OSHA’s National Emphasis Program—
Nursing and Residential Care Facilities
•
April 5, 2012
•
3 years
•
Specific Hazards being Targeted
Ergonomic Stressors in Patient Lifting Blood borne Pathogens
Tuberculosis
Inspections for OSHA
1.
Voluntary Consent
ICE Audits are at
What is the Purpose of an
I-9 Audit Conducted by ICE?
•
The Immigration Reform & Control Act (IRCA)
Unlawful for employers to knowingly hire, recruit or
employ illegal aliens.
•
I-9 Audits are ICE’s enforcement method of
choice:
• Discovery of I-9 violations can lead to
monetary fines
• $110 - $1,100 for substantive/uncorrected technical violations
• $375 - $16,000 for knowingly hire/continue to employ
civil penalties
criminal prosecution
• Can cripple workforce if large % of unauthorized workers are detected
• Low skilled workforces particularly at risk
Notice of Inspection (NOI)
•
Compels production of Forms I-9 within 3 days.
•
Additional documentation may be requested- i.e.
payroll records & list of current employees.
•
Contact counsel immediately once NOI issued in
ICE Notices Following
Inspection
•
Notice of Technical or Procedural Failures
Employer has 10 business days to correct
•
Notice of Discrepancies or Suspect
Documents
Employer must provide employee copy of notice &
opportunity to present additional documentation to
establish employment eligibility
Employee must be terminated if it cannot produce
valid work authorization document or employer
subject to Knowingly Hired or Continuing to Employ
Penalties
“Good Guys” are not immune.
Settlement Process: Employer has
opportunity to negotiate a settlement with ICE or request a hearing before the Office of the Chief Administrative Hearing Officer
(OCAHO) within 30 days of receipt of NIF. If employer takes no action, ICE will issue a
Final Order.
Notice of Intent to Fine (NIF)
The OSHA Inspection…
1.
Opening Conference
2.
Document Review
3.
Walk Through
4.
Closing Conference
• Take notes
5.
Notice of Citations
6.
Informal Conference with Area Director
7.
Notice of Contest
1. Remain Calm
2. Review Official Credentials
3. Assemble Responsible Team
If unavailable, reschedule with Inspector
4. Escort Inspector to a pre-determined area (conference room or office) until the team is assembled
1.
What is the scope of the inspection?
2.
What is the reason for the inspection?
•
Random
•
Programmed inspection
•
Response to a complaint
3.
What workers/company officials does
he want to interview?
OSHA Documents Typically
Reviewed…
1.
Injury and Illness Summary (OSHA 300 logs) for
the past 4 years
2.
Specific Injury Reports for the past 4 years
3.
Written Hazard Communication Plan (Chapter C in
Safety Compliance Manual)
4.
Material Safety Data Sheets (MSDS) for hazardous
5.
Written Programs
•
Emergency Action Plan
•
Confined Space Entry Procedures
•
Lockout/Tagout Procedures
•
Housekeeping Plan
•
Respiratory Protection and PPE Programs
•
Evacuation Plan
•
Bloodbourne Pathogens
6.
Training Logs (e.g. hazard communication)
7.
Inspection and Maintenance Logs of
Equipment
During the OSHA Inspection…
•
Take an employee to the side as soon as OSHA
shows up and have him/her go on a quick
survey of the facility to make sure guards are all
in place and all electrical boxes are shut and fire
extinguishers are hung up in their places and
unobstructed
More things you can do
•
Take good notes or bring another employee along to do
so
•
Use your own camera to take the same photos Inspector
takes
•
Ask to be present during any employee interviews
May not be allowed for non-management employees
•
Be polite and treat Inspector with respect
During the OSHA Inspection…
• Generally, do not tell OSHA Inspector to come back whenthey have a warrant
• Do not volunteer information that does not relate to their visit/inquiry
• Do not ask questions about a regulation that does not relate to their visit
• Do not lie, deceive, try to cover up, or forge documentation
• Do not show OSHA Inspector any safety inspection checklists that you or your insurance company have done
To Prepare…
1. Audit Records
I-9’s
OSHA Logs
2. Quiz Employees
Where are Material Safety Data Sheets (MSDSs) kept?
• Can they find them?
• Passwords?
Where is Personal Protective Equipment (PPE) kept?
• Is it used?
3.
Ensure Required Posters are posted
4.
Let Employees know they have the right to
Helpful Tips To Limit I-9
Liability
1.
Train HR staff on I-9 Compliance
• Timeliness of Completion & Avoiding Errors
• Document Review
2.
Conduct External I-9 Audit
• Internal audit, in alternative
3.
Develop written comprehensive
I-9 policies & procedures
4.
Consider Electronic I-9 software
Additional Pointers for I-9s
5.
Consider E-VERIFY: Friend or Foe?
6.
“Purge” I-9s: 1 year after termination or 3
Final Reminders for OSHA
• Posting…Must post Notice of Citations for at least three days
• Any incident resulting in a fatality or hospitalization of 3+ workings must be reported to OSHA within 8 hours of being informed of the incident
