Labor inspection is the system by which states verify compliance with labor and occupational health and safety regulations by companies in various productive sectors, and cannot be avoided. For this reason, it is very important to know the rights of employers within the framework of state inspection and to be clear about the deadlines, as well as the powers and prohibitions that the labor inspectors themselves have, so that they do not commit obstructions, which can lead to economic sanctions (fines), but also to assert their powers within the framework of these procedures.
Per Convention 81 of the International Labor Organization (ILO), on labor inspection in industry and commerce, labor inspectors are granted broad powers, including:
- To enter freely and without prior notification, at any time of the day or night, any establishment subject to inspection.
- To carry out tests, investigations or examinations they consider necessary to verify strict compliance with legal provisions.
- To question, alone or in front of witnesses, the employer or company personnel on any aspect related to the application of labor regulations.
- To demand the presentation of books, records or other documents that labor legislation requires to be kept, to verify their compliance with legal provisions, as well as to obtain copies or extracts thereof.
- To require the posting of notices required by labor regulations.
- Take or extract samples of substances and materials used in the establishment for analysis, with prior notification to the employer or their representative.
At the regional level, this convention has been ratified by El Salvador, Guatemala, Honduras, and Costa Rica. For its part, Nicaragua, which has not ratified the convention, has regulated the function of labor inspection through the General Law of Inspection since 2008. This law comprehensively establishes the powers of labor inspectors, which are very similar to those of other countries, except for the power to take samples of substances or materials for analysis, which is not conferred on them.
Due to the broad powers of the inspectors, the employer cannot oppose the carrying out of an inspection, since, as mentioned, these cannot be avoided or circumvented. In all the countries of the region, outright opposition by the employer is considered an obstruction or impediment of the inspection, which will give rise to a sanctioning procedure. Furthermore, this will not prevent the company from being visited again in the following days.
Only in Costa Rica is the concept of obstruction or hindrance not regulated as such; however, preventing the inspection – its equivalent – would also result in fines being imposed on the company.
Despite the broad powers of labour inspectors, they are also subject to obligations and prohibitions in the exercise of their functions. These include:
- Identifying themselves to workers and employers, presenting documentation accrediting them as inspectors.
- Not requesting documentation that has no bearing on labor or occupational health and safety matters.
Likewise, Convention 81 establishes specific prohibitions to ensure that the actions of inspectors remain within the legal framework, such as:
- Not having any direct or indirect interest in the companies under their supervision.
- Maintain confidentiality regarding the origin of any report or complaint communicated to them, under penalty of sanctions or disciplinary measures.
If an employer detects that an inspector has breached these provisions, they may file complaints or take appropriate legal action.
Employers must understand that the labor inspectorate, in most countries in the region, follows a procedure with several phases, which must be exhausted in their entirety.
- Inspection visit: The labor or occupational safety aspects subject to inspection are verified.
- Correction period: If violations are detected, a period is granted to correct them.
- Reinspection: Once the deadline has passed, it is verified whether the irregularities have been corrected.
- Sanctioning procedure: Only if, in the opinion of the inspector, the infringements have not been corrected, a process is initiated that could result in fines for the employer.
However, in the case of serious and imminent risk to occupational safety, immediate action can be taken, without the need to exhaust the previous stages, to avoid an uncontrollable situation.
In Guatemala, there is no formal inspection procedure, but rather maximum time limits are set for the completion of verification procedures. In this sense:
- The required obligations must be fulfilled within a specified period, generally eight days.
- An extension may be requested, provided it is adequately justified.
- If, after the deadline has expired, the non-compliance persists, the competent departmental delegate imposes the corresponding sanction.
- Once issued, the sanction can be challenged through an appeal for revocation before the Ministry of Labor.
Based on the above, it is recommended that the employer implement periodic self-inspections or monitoring to ensure compliance with labor and occupational safety regulations. It is also essential that all supporting documentation be kept complete, up-to-date, and organized. For more efficient management, it is recommended to:
- Appoint one or more people to be responsible for dealing with labor inspections;
- Train the personnel in charge periodically;
- Facilitate access to inspectors and cooperate with their requirements;
- Have preventive advice on labor matters, to avoid complaints or accusations or, where appropriate, correcting them promptly.