EEOC Investigations: Minimize Your Liability. Presented by Jodie-Beth Galos, Esq.

Transcription

1 EEOC Investigations: Minimize Your Liability Presented by Jodie-Beth Galos, Esq.

2 At-Will: Your employer can hire or fire at any time for any reason other than an unlawful one.

3 Filing the EEOC Claim Plaintiffs must file a charge with the EEOC before going to court. Complaining parties can file a complaint in court regardless of the EEOC finding. Prevent the EEO investigation from gaining steam.

4 1. Eliminate barriers in recruitment.! 2. Protect immigrant, migrant, and other vulnerable workers.! 3. Address emerging discrimination issues.! 4. Enforce equal pay laws.! 5. Preserve access to the legal system.! 6. Prevent harassment through systematic enforcement and outreach. EEOC Hot Spots

5 Smaller companies may want to consult a professional. Make sure your attorney is knowledgeable in EEOC investigations Inform your insurer if your policy covers discrimination charges. EEOC Complaints

6 EEOC Charges You will be notified within 10 days of when a charge is filed against you.! Acknowledge the receipt of the charge, but don t admit or promise anything.! You won t get a copy of the affidavit, but someone may read it to you.

7 Recap all phone conversations in writing. A biased investigator can allow you to be reassigned. Try to stop the clock on damages. EEOC

8 nternal nvestigation Conduct an internal investigation. Have HR review all actions. Interview all witnesses.

9 Examine all relevant documents.! Keep information to just the facts.! Attorney-client privilege won t apply to witness interviews. Documents

10 Ellerth-Faragher defense Clearly differentiate the investigator role with the outside attorney. Attorney-Client Privilege

11 Mediation is offered as an alternative to the traditional process. The mediator helps parties agree on a mutually acceptable outcome. Mediation

12 Advantages to Mediation It s free. It s neutral. It might save time and money. Mediation discussions can t be used against you.

13 Advantages to Mediation It fosters cooperation. It minimizes present and future disruptions. You can t be forced to settle. Most employers and charging parties would use mediation again.

14 Settlements u It s best to settle when the organization is guilty.! u There s no admission of liability in settling.! u Make sure to include a confidentiality clause when settling.

15 Settlements u It might not be worth it for settlements or mediation when the charging party is just waiting for a rightto-sue letter.! u If mediation is not used or doesn t work, the charge is investigated.

16 Position Statement The position statement allows employers to present facts to show the allegations are false. Be prompt and provide the information the EEOC asks for. Work out a new due date if circumstances prevent you from being timely.

17 Investigation If you think the Commission is fishing, you can politely inquire why the documents are necessary. Stick to the facts in your position statement. Deny discrimination in your introductory paragraph.

18 u u u Include a background statement.! Outline the charging party s employment history.! Include your company s anti-discrimination, antiharassment, and noretaliation policies. EEOC Investigator

19 Provide relevant code-of-conduct details if the charging party violated them. Provide comparative evidence. Choose comparators carefully.

20 Position Statement Investigators will be more receptive to references from the EEOC Compliance Manual. Have all managers review the position statement for accuracy. Don t include items that aren t relevant in the position statement. Have a lawyer review the document before submitting it.

21 The EEOC may subpoena reasonably related information. The organization may object within 5 days if it thinks the subpoena is too broad. Failing to file a position statement may cost more time and money.

22 On-Site Investigations u On-site investigations are becoming more routine.! u Schedule the on-site visit to give enough time for an internal investigation.! u Prepare for the visit by making sure your papers are in order.

23 Employers may have counsel present during management interviews, but not others. Brief managers prior to interviews. Tell employees to be honest and get an idea of what they will say. Interviews

24 Investigations u After gathering data, the EEOC will determine the merits of the case.! Dismissal and Notice of Rights! Letter of Determination! u Conciliation allows for negotiation of practices for the employer to change.! u A lawsuit can follow failed conciliation.

25 Employers must preserve relevant information for litigation. Take a broad understanding of what might be relevant. Stop any routine practices that could result in information destruction. Preserve Information

26 u u u Check to see if supervisors have a file they have maintained.! Employees using their own devices can cause confusion.! Work with your IT department. EEOC Investigator

27 Investigations u u The last step will be a systemic litigation focus.! Arise based on:! 1. A charge filed as pattern or practice investigation! 2. The EEOC initiates on its own authority under relevant laws.! 3. The EEOC investigates based on a filing of a Commissioner s Charge.

28 Investigations u Employers should have an initial response plan.! u Don t forget about public relations expertise.! u Sit down with investigators and explain the situation.

29 1. Know the EEOC s 2012 SEP. 2. Not being a jerk in business can pay off. Summary

30 Welcome to! EEOC Investigations: Minimize Your Liability Q&A With Jodie-Beth Galos, Esq.

31 Thank you for joining us today!