Knock, Knock. Who s There?: What to Do When the Government Comes Knocking

Transcription

1 Knock, Knock. Who s There?: What to Do When the Government Comes Knocking APRIL 5, 2017

2 State and Federal Agencies have Clear Investigatory Authority Equal Employment Opportunity Commission (EEOC). See 42 U.S.C. 2000e-5(b) (access to examine and copy any evidence) National Labor Relations Board (NLRB). See 29 U.S.C. 161(1) (examine and copy evidence) U.S. Department of Labor. See 29 U.S.C. 211(a) (enter and inspect, question employees, and investigate facts, conditions, practices or matters) New York Department of Labor. N.Y. Labor Law 25 and 26 (enter premises and inspect books) 2

3 Bases Random compliance audits Complaint by current or former employee Formal Charge 3

4 Method is in the Discretion of the Applicable Agency Field visit, including without notice Written or oral inquiry Conference Any and all of the above 4

5 Advance Preparation Implement written policies for non-discrimination and reporting mechanism Train staff, particularly managers, on a regular basis Analyze exemption classifications Analyze employee and independent contractor classifications Review recordkeeping practices Train on collective bargaining agreement 5

6 Designate and Train a Response Team Who is the leader and who will support? Liaison in human resources Contact information for attorney, accountant, insurance Liaison with information technology Develop a written action plan and communicate it to necessary individuals 6

7 Initial Notice Immediate Steps 1. Alert counsel 2. Implement document preservation 3. Alert insurance carrier 4. Gain control of process 7

8 Alert Counsel Review applicable statute and regulations for expectations and timelines Attorney-client privilege and attorney work product doctrine 8

9 Alert Insurance Carrier Notice as soon as practicable Carrier may pay counsel fees and offset deductible 9

10 Document Preservation Identify custodian Identify key witnesses Paper and electronic; turn off automatic purge systems and analyze back-up tape overwrites Remove deletion controls from suspected wrongdoers Periodic follow-up 10

11 Control the Process Effectuate response plan Decide who will communicate with the investigator Decide who has a need-to-know Reporting obligation to auditors or Board of Directors or Board of Trustees? 11

12 Communications with Investigators Be professional, respectful and courteous Understand the scope of the investigation, particularly in a non- Charge situation Decide whether to voluntarily produce documents or to require subpoena 12

13 Document Production Relevant information e.g., 22 N.Y.C.R.R ( Evidence relating to any matter under investigation or investigation before the division ); 42 U.S.C. 2000e-8(a) ( Relevant to the charge under investigation ); 29 U.S.C. 161(1) ( Relates to any matter under investigation or in question ) Relevant is understood generously to permit the EEOC access to virtually any material that might cast light on the allegations against the employer. EEOC v. Shell Oil Co., 466 U.S. 54, (1984) Agency not entitled to deference; District Court has discretion to analyze. McLane Co. v. EEOC, No (U.S. Supreme Court, April 3, 2017) Time limit and process to challenge 13

14 Document Production Confidential and Proprietary Information Negotiate limitation on production or redactions for unneeded information Label confidential or trade secret Bates label Retain copy of documents provided 14

15 Witness Interviews Prepare the witness Accompany for management interviews Discuss after interview occurs 15

16 Site Visit Accompany investigator at all steps Alert affected individuals Document activities of investigator 16

17 No Retaliation Any adverse action, including discharge, reprimands, transfers, verbal abuse, increased scrutiny, or making work more difficult Detailed instructions to supervisors, managers Document Closely monitor for considerable period of time No bright line rule on proximity When adverse determination does arise, review carefully 17

18 Closing Settlement Self-correction Monitor compliance Audit other practices not examined Debrief on process 18

19 Jeffrey J. Calabrese hselaw.com