IN-FARM INSPECTIONS: powers and limitations of inspection personnel
In the context of labor inspections, what behavior should the employer take? And what are the powers and limits placed on inspectors?
The subject of company inspections, which always arouses apprehension and great mistrust among companies, has undergone several evolutions in recent years, with the intent on the one hand to make company inspection activities more transparent, and on the other hand to enable companies to adopt all defense prerogatives to protect their interests.
Since it is not possible with the present discussion to make an in-depth analysis of the whole subject, which is, moreover, complex and very technical, let us see an overview of the bodies in charge of control in the company, their powers and also the limits, of how employers must behave in case of inspection access.
The task of supervising the regular application of labor regulations is the responsibility of:
- To the “labor inspection” sector of the regional and provincial labor directorates
- To the inspection offices you have to various social security agencies (INPS, INAIL; INPGI, ENASARCO, ENPALS) for what pertains to contribution and social security aspects.
- To the Guardia di Finanza, which can access labor-related documents in order to supervise the proper application of tax regulations;
- To ASLs for everything related to prevention, hygiene and workers’ health.
It should be pointed out that while the supervisory bodies of social security agencies are public officials who perform the administrative police function, inspection bodies of the Ministry of Labor are judicial police officers; this means that if reports of crimes emerge in the course of inspection activities, only labor inspectors can carry out the necessary acts to secure sources of evidence, to search for the perpetrators and to prevent crimes from being carried to further consequences. All of this is in compliance with the provisions dictated by the Code of Criminal Procedure for judicial police activities.
Powers and duties of inspection staff
The power of access to workplaces is the most characteristic power given to inspection bodies. On this point, Presidential Decree 520/1955 stipulates that “labor inspectors have the right to visit in any part , at any time of the day or night, laboratories, factories, construction sites, offices, public entertainment premises, dormitories and refectories attached to establishments, not the less they shall refrain from visiting premises attached to workplaces and which are not directly or indirectly connected with the operation of the business, unless we have well-founded suspicions that they serve to carry out or conceal violations of the law.”
Similarly, the power of access is granted to the supervisors of social security institutions to review all documentation that is relevant to contribution obligations or the provision of social security benefits, and to take from employers and employees news pertaining to the existence of labor relations, wages, contribution and insurance obligations.
It follows from the above that inspection personnel, without prior notice and without the need for a specific warrant, can freely enter companies or construction sites in order to ensure compliance with labor protection regulations in all their forms. However, the power of access cannot go as far as the private residence of the citizen, which constitutes, therefore, an inviolable place by the inspectors.
Inspectors may examine all documentation related to social and labor legislation, including accounting records and also those related to occupational safety. They can freely interview workers employed by the company, who must be heard separately and without the presence of the employer or the professional assisting the company.
They may also collect statements from the employer, but the employer is not obliged to make them; rather, he must be careful about what he says, especially in case this may result in a kind of “self-incrimination.”
However, it should be pointed out that inspection personnel entering the company must also comply with certain rules:
- First of all, he is obliged to qualify himself and, when asked by the person to whom he is presenting himself, to show his identification card (badge). In the absence of the badge, the inspection cannot take place.
- It then has the obligation to declare any situation of incompatibility with the performance of inspection activities and to refrain from carrying out the supervisory activity if there are personal interests in relation to the activity of the inspected company, relationships of kinship, affinity or cohabitation with the employer.
- In initiating its activity, the inspection personnel shall ask to confer with the employer or his or her deputy, informing him or her of the right to be assisted during the inspection activity by a licensed professional and that, in any case, the absence of the professional will not prevent the continuation or validity of the inspection activity.
- When taking statements, he must take care to report them faithfully, omitting any personal interpretation: questions must be asked in a clear and understandable manner so as not to generate interpretative doubts or condition the worker’s response. The statement must be read and signed by the worker.
With respect to the inspectors’ right of access, what should the employer do?
On this point, the law stipulates that the employer may in no way prevent access and the performance of supervisory activities; in the event that this is done, an employer may be charged a administrative penalty very high, ranging from a minimum of 1,290.00 euros to a maximum of 1,2910.00 euros.
In addition, in the most serious cases, the act can also assume criminal relevance, incorporating the extremes of the crime of interruption of a public service (Article 340 of the Criminal Code), resistance to a public official (Article 337 of the Criminal Code) or violence or threat to a public official (Article 336 of the Criminal Code).
In these cases, however, since they are hypothetical offenses, the guarantees provided for in the Code of Criminal Procedure must be observed, and the activities can be carried out only by labor inspectors who hold the status of judicial police. The same, therefore, may proceed to search the premises in order to acquire evidence of the administrative offense, subject to the authorization of the judiciary.
With respect to statements made by workers to inspectors, employers often ask inspectors for a copy; on this point, it should be clarified that no copies of statements are issued to the employer, any request for access should be addressed to the office afterwards, to the extent strictly necessary for the exercise of the right of defense. It goes without saying that in cases where the challenge is adequately substantiated and the employer can defend itself based on the documents in its possession, access is almost always denied.
Report of first access and report of assessment and notification
Art. 33 of Law 183/2010 (Labor Law), amending Art. 13 of Legislative Decree. 124/2004, stipulates that at the conclusion of the verification activities carried out during the first inspection access, a report of the first inspection access is issued to the employer or person present at the inspection, which contains:
- The identification of workers found intent on work and a description of the manner of their employment.
- The specification of the activities performed by inspection personnel.
- Any statements made by the employer or caregiver, or the person present at the inspection.
- Any request, including documentary evidence, useful for the continuation of the investigation aimed at ascertaining the offenses.
Where the assessment proves to be complex and prolonged in time, pursuant to Art. 13 of the Code of Conduct, inspection personnel may notify the employer of a appropriate interlocutory minutes, which contains a full description of the further investigative activities carried out, an indication of any working documents examined, and a request for documents or information with an express warning that the investigation is still in progress.
As can be seen from the contents of the first access report, the same is not the concluding document of the inspection activity and does not contain an indication of any wrongdoing by the employer. Nevertheless, it acquires a fundamental importance for the regularity of the entire inspection activity, since it is still a document aimed at ensuring the transparency of supervisory action.
It follows that the failure to prepare the report of the first inspection access or its serious incompleteness means that the entire sanction procedure placed on the employer may give rise to a profile of invalidity for explicit violation of the law.
Once all verification and documentation checking operations have been completed, inspectors proceed to contest the administrative violations by serving a single assessment and notification report, which is served on the violator and any joint and several obligor. The above constitutes a novelty in that in the past two separate reports were prepared, one for assessment and one for notification of offenses, creating confusion for the offender also in relation to the timeframe for challenging the reports.
Regarding the content of the single report, the standard stipulates that it must contain:
- The detailed outcomes of the investigation, detailing the sources of evidence of the detected offenses.
- The warning to regularize sanctionable defaults.
- The possibility of extinguishing offenses by complying with the warning notice and paying the reduced amount, or by paying the same amount in cases of offenses already subject to regularization.
- The possibility of extinguishing nondeferrable offenses.
- An indication of the means of defense and the bodies to which the redress should be proposed, with specification of the time limits for appeal.
Regarding the institution of mandatory warning, referred to in point b) above, the Labor Collective in Art. 33, Paragraph 2, stipulates that in the event of established non-compliance with the provisions of the law or collective agreement on labor and social legislation, and if the inspection staff detects non-compliance from which administrative penalties are derived, they shall issue a warning to the violator and any jointly and severally liable person to regularize the non-compliance that can be remedied, Within the period of 30 days from the date of service of the assessment report.
Paragraph 3 below provides that by complying with the warning notice, the violator and the jointly and severally liable party shall be allowed to pay a sum equal to the amount of the penalty to the extent of the minimum stipulated by law or to the extent of one-fourth of the penalty set as a fixed amount, within the period of fifteen days from the expiration of the time limit for set for the warning notice (30 days). Payment of the amount extinguishes the penalty proceedings referring to the noncompliance that was the subject of the warning.
In practice, all supervisory bodies, if they point out, during verification, administrative violations that can be remedied for which the institution of the warning notice applies, will be required to use this instrument, which will therefore become a real condition of procedural feasibility for the imposition of any sanctions.
It follows from the above that in order to extinguish the penalty proceedings, it is not enough just to pay the minimum penalty (in one lump sum), it is also necessary to provide proof that the assessed violations have been regularized within the period of 45 days from the notification of the single report.
Finally, regarding the probative value of the inspection report, some important points should be highlighted. First, according to Art. 10, Paragraph 5 of Legislative Decree. 124/2004, inspection reports are sources of evidence under current regulations with respect to the factual elements acquired and documented and may be used for the adoption of any sanctioning measures, administrative and civil, by other administrations concerned.
This means that the reports prepared by supervisory inspectors have evidentiary value, up to the point of perjury, but only with reference to the operations carried out directly by the inspectors preparing the report. Where, on the other hand, the report refers to statements collected by third parties, or concerns the contents of collected documents, it is authentic until proven otherwise; consequently, the offender may nullify the probative value of the same by providing contrary evidence.
In practice, for the purposes of proof, neither the exposition in the record of what was learned by third parties, who will therefore have to make their disposition under oath before the judge, nor the elaborations, reconstructions or interpretations made by the supervisory bodies are of value.