How to respond to labor law enforcement
What do you do when a federal or state inspector comes to your farm regarding labor laws? At the recent Labor Roadshow hosted by Cornell Agricultural Workforce Development (CAWD), Emma Swarthout of American Dairy Association North East and Lucas Smith and Richard Stup with CAWD presented two skits of ideal and less-than-ideal scenarios.
In the less-ideal scenario, Swarthout played a farm office manager who was ill-prepared for such a visit. Flustered about her scattered paperwork and poorly organized files, her character presented an unprofessional image to Smith, who represented an immigration inspector. The farm manager, played by Stup, grumbled about the inspection and acted aggressively toward the inspector.
Between the two skits, the audience participated in a discussion about what went well and what didn’t go well during the portrayed farm inspection.
One mistake was that the office manager kept the I-9 forms in the personnel files instead of being kept all in one file. The latter method is more convenient for the inspector and it reveals less information. Farm managers should also fill out an English copy of any forms completed in Spanish for employees who speak Spanish. The two forms should be kept together.
Audience members also lobbed criticism at the office manager for trying to field the inspector’s questions herself instead of immediately calling the farm manager.
“It’s always good to have an attorney to phone with specific situations,” said Kim Skellie, partner and personnel manager at El-Vi Farms Inc. in Newark, NY. “Lucas said he needed ‘everything,’ then just I-9s, then he needed the hiring information. You want to ask what he’s looking for and get that in writing. Take the three days they give you to get everything together. You can use it.”
Stup’s character was not as cordial as he could have been; however, Stup cautioned to “not let inspectors walk all over you.”
In the second skit, portraying a more ideal response to an inspector, Smith clarified who he was and why he was visiting. Swarthout had him sign in to the farm’s logbook and called Stup immediately. While Smith waited, he asked Swarthout to look at files but she politely declined, saying they would wait for the farm manager.
When Stup appeared, he said that he had contacted the farm attorney about the visit once he received notice a few days before about an overtime violation. Smith asked for more information, like the farm’s policies and if he could conduct employee interviews.
Stup informed him he could not pull in workers from the field; however, Smith was welcome to schedule interviews at a time that would work better for the farm.
The audience discussion time included comments about how much better prepared the farm was in the second skit. The farm had legal counsel and organized paperwork.
It’s important to make notes of what paperwork was shown to the inspector and to give only copies of paperwork, not originals.
Documentation during an inspection is vital. An audience member noted, “He who has the most paperwork wins.”
Since inspectors often give a warning letter about a violation and upcoming visit, it should not surprise farmers to receive such a visit. They can use the days between receiving the letter and the visit to better prepare for the inspection. This can include ensuring documents are in order, briefing staff on what to say and what to do and also mentally gearing up for staying professional, civil and cognizant about what the inspector is allowed to see.
“It’s good to be prepared,” Stup said. Farmers should keep I-9 forms for three years after the date hired, and then purge them a year after employment ends – whichever is later.
When talking with inspectors, farmers should “be specific and give the investigator what he wants and nothing more,” Stup said. “If it’s a surprise, have the investigator write down what he or she wants and take your time. Supply only what they ask for.”
Farmers should also remain vigilant about scammers who pose as inspectors. It’s not difficult for scammers to have official-looking business cards and letterhead printed. Farmers in doubt should call the organization’s phone number (not the one presented by the “inspector”) to ensure that the person is who they say they are.
