August 29, 2014
We recently received a call from a farmer client in southeastern Michigan when federal wage & hour inspectors made an unannounced visit to its farm and began roaming the fields interviewing employees. After meeting with the inspectors and working out a more orderly investigation with them, (which included ending the roving interviews) the investigators indicated that this was part of its annual “agricultural initiative”, which has been focused in western Michigan for the last couple of years, but was moving to the southeastern Michigan area this year.
A visit from a wage & hour investigator is never good news, but good faith attempts to comply with a complicated law goes a long way to limiting any potential liability. Likewise, some firm, but cooperative, negotiation can make the investigation less disruptive and, possibly, improve outcomes. We recommend that if you receive an unannounced visit from investigators, you, or your representative, should insist on an initial planning meeting to ascertain what they want and who they wish to speak to. In order to insure clarity, these requests should be put in writing. You should try to negotiate, in a cooperative manner, an agreement to provide information and employees for interviews in an orderly and prescheduled manner.
The investigators prefer to try to wander the fields interviewing workers during these unannounced visits and will claim to have the right do so under their regulations. However, my suggestion to an investigator that my client might require a subpoena to be on its premises since the Fourth Amendment of the United States Constitution trumps any wage & hour regulations, all the while stressing that we were quite willing to cooperate in an orderly manner, was effective in this most recent encounter.
The goal is to establish a reasonable and orderly schedule for the investigation and avoid disruptive unannounced interruptions in your business (and these visits not only cause stress to the farmer, but also the workers), while at the same time not giving the investigators reason to suspect that you are stonewalling them, trying to hide information or access, or being uncooperative because that will simply result in increased efforts by and difficulties with the investigators.