You’re working in your office when suddenly one of your employees is at your door: there are a couple of agents from the NYS Department of Conservation at your facility, here to conduct an inspection because the agency received a complaint about your business. What should you do? What can you do? If you manage the visit correctly, then maybe it’s just a minor disruption. If you don’t, you can be looking at a major headache.
Here are some big picture items to keep in mind.
Understand who is there and why they’re there. The example used here is the DEC, but the agency at your door could be OSHA, or EPA or a host of other regulatory or investigative agencies. Find out who they are and why they’re there. Certain personnel—security guards, a foreman—will be the first to interact with the inspectors. They should request credentials and ask about the purpose of the visit and find out if they have a search warrant. They should contact management with this information. Most importantly, they should be professional and courteous—this is a serious event with potentially significant consequences—and direct any questions to management.
Determine who you want present. Depending on the nature of the inspection, you may want counsel present, or at least available by phone if that’s at all possible. In any event, you want only the right people present with the inspectors. While you want to cooperate with reasonable requests, there’s no need to have more people than you need present to answer any questions. Answers can have far reaching consequences, which you may not know at the time. A speculative answer volunteered by an employee trying to be helpful could end up hurting, not helping, your cause. Limit your company’s presence to those with knowledge or a need to be present.
Document the event. Arguably, nothing is more important than documenting the inspectors’ visit. Know who was present and when they were present. As soon as it is practicable, document the questions the inspectors asked, the answers they were given, and the parts of the facility they visited. Keep notes and photograph anything an inspector photographs. If an inspector requests or takes records, document what was requested or taken. If the inspector takes samples, see if you can get split samples. Document as much as you can, even if it seems unimportant at the time.
You may not have to turn it over, but then again maybe you do. Even with a search warrant, inspectors do not have carte blanche to inspect anything and everything at a facility or to take anything they wish. Search warrants are powerful investigative tools, but they are typically limited in time and space and must set forth the particular items to be seized. A search warrant for company records normally doesn’t give investigators the right to seize an employee’s private iPad kept at his desk. That said, some federal (e.g., Clean Air Act) and state (e.g., Oil Spill Act) environmental laws require facilities to keep records showing their regulatory compliance. The inspectors don’t need a warrant to review those records.
Read it carefully. Sometimes an inspector will ask someone to sign a document after the inspection is completed. Think about this request carefully because it can have serious legal implications. Whatever the document is, read it closely before signing. If you feel you cannot sign it, you probably should not.
Have a plan in place. Finally, if you are a regulated industry or a workplace, you know that an investigative agency can pay you a visit. Be prepared for it. Have protocols in place for dealing with an inspection. Have your employees know what they should do, how they should act and who they should contact if an inspector shows up at your facility. Make sure management knows what it should do, including who should document the visit and who it might contact about any inspection. Better to be prepared and not be inspected than to have an inspection and not be prepared.
The long and short of it is that being the subject of an agency investigation can be a nerve-wracking experience, but it doesn’t necessarily have to be. It is all about preparation and sticking to protocols. If you have a question about how your facility should prepare for an agency inspection, or if you’ve already been subject to one, feel free to contact Tim Lambrecht, Esq. or Kevin Murphy, Esq. at the Wladis Law Firm.