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What To Do When The
Government Comes Knocking
Are You Ready?
Michael Colgan Harrington
860.240.6049 | [email protected]
Lauren Meris Filiberto
203.772.7733 | [email protected]
March 20, 2013
• OSHA – Occupational Safety Health Act
• ICE – Immigration & Customs Enforcement
What is expected…
For OSHA…
1. Standards
2. General Duty Clause
• Employer is to furnish ―a place of employment
which is free from recognized hazards that are
causing or are likely to cause death or serious
physical harm to [its] employees.‖
Types of OSHA Inspections
1. Imminent Danger
2. Catastrophic and Fatal Accidents
3. Employee Complaints
4. Programmed High Hazard Inspections
5. Re-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
Workplace Violence
Slip, Trips and Falls
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:
• Detect / deter employers from knowingly & intentionally employing unauthorized workers.
• 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
Why Should I Care?
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
order to mitigate potential violations
during 3 day window.
ICE Notices Following
Inspection
• Notice of Technical or Procedural Failures
Employer has 10 business days to correct
technical violations (unless become
substantive violations)
• 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
• Timing: Mester Manufacturing Company Case
“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)
May be issued for substantive, uncorrected technical,
knowingly hire and continuing to employ violations.
The OSHA Inspection…
1. Opening Conference
2. Document Review
3. Walk Through
• Accompany Inspector at all times
• Can cite for anything in ―plain view‖
4. Closing Conference
• Take notes
5. Notice of Citations
6. Informal Conference with Area Director
7. Notice of Contest
• Within 15 calendar days of citation being issued
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
What to do when the Government
Inspector knocks…
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?
Questions to Ask OSHA
Inspector..
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
chemicals that are used or stored on site (e.g.
cleaning products)
5. Written Programs
• Emergency Action Plan
• Confined Space Entry Procedures
• Lockout/Tagout Procedures
• Housekeeping Plan
• Respiratory Protection and PPE Programs
• Evacuation Plan
• Bloodbourne Pathogens
OSHA Documents Typically
Reviewed… continued
6. Training Logs (e.g. hazard communication)
7. Inspection and Maintenance Logs of
Equipment
OSHA Documents Typically
Reviewed… continued
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
• Fix what you can immediately!
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
• Think before you speak…answer questions honestly
During the OSHA Inspection…
• Generally, do not tell OSHA Inspector to come back when
they 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
• If possible…Do not lead OSHA Inspector past or through a work
area that may be out of compliance with OSHA regulations that day
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?
Conduct Mock Inspection
3. Ensure Required Posters are posted
4. Let Employees know they have the right to
have a lawyer or company representative
present at the interview.
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
• Develop Tickler System, in alternative
Additional Pointers for I-9s
5. Consider E-VERIFY: Friend or Foe?
6. “Purge” I-9s: 1 year after termination or 3
years after date of hire, whichever is
longer.
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
• May request to be present for employee interview, but request may
be denied unless employee is a supervisor