EEOC Charge Conciliation: Navigating On-Site Investigations, EEOC - - PowerPoint PPT Presentation

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EEOC Charge Conciliation: Navigating On-Site Investigations, EEOC Conferences, Settlement Negotiations

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1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific WEDNESDAY, DECEMBER 16, 2015

Presenting a live 90-minute webinar with interactive Q&A Judith (Jude) Biggs, Partner, Holland & Hart, Boulder, Colo. Jill Vorobiev, Partner, Sheppard Mullin Richter & Hampton, Chicago

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EEOC Charge Conciliation: Navigating On-Site Investigations, EEOC Conferences, Settlement Negotiations

a Webinar by Strafford Publications, Inc. Wednesday, December 16, 2015

Jill Vorobiev Sheppard Mullin Richter & Hampton jvorobiev@sheppardmullin.com 312-499-6309 Jude Biggs Holland & Hart LLP jbiggs@hollandhart.com 303-473-2707

Learn to

• provide right amount of information in

position statement

• handle supplemental requests and on-site

investigations

• decide when to mediate
• preserve employer’s rights during a

conciliation conference

• settle a charge before “probable cause”

finding is made

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Preview

• EEOC Background Facts
• Charge Trends
• Charge Categories/EEOC Priorities
• First Steps in the Process
• The Investigation
• To Mediate or Not
• Position Statements
• Supplemental Requests
• On-site Investigations by the EEOC
• Conciliation
• Tips

6

EEOC Background Facts

• EEOC
• Created 1964
• “Independent” federal agency
• To rid workplace of discrimination
• Very broad powers and discretion
• Develops guidance and regulations
• Investigates claims
• May prosecute certain claims
• Enforcement varies under each administration
• Very aggressive in recent years

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EEOC Background Facts

• EEOC enforces:
• Title VII of the Civil Rights Act
• Pregnancy Discrimination Act
• Age Discrimination in Employment Act
• Rehabilitation Act
• Americans with Disabilities Act
• Equal Pay Act
• Genetic Information Nondiscrimination Act
• But NOT Fair Labor Standards Act, Family and Medical

Leave Act, ERISA, health and safety laws, breach of contract, tort claims

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EEOC Charge Trends

1997 2013 Total Charges 80,680 93,727 Race 36.2% 35.3% Sex 30.7% 29.5% National Origin 8.3% 11.4% Religion 2.1% 4.0% Color 0.9% 3.4% Retaliation 22.6% 41.1% Age 19.6% 22.8% Disability 22.4% 27.7% Equal Pay 1.4% 1.1%

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EEOC Categories of Charges – 3 Types

“A” Charges

• High priority (serious allegations, systemic or

pattern/practice allegations, hot button issues- e.g., background checks, pregnancy discrimination, LGBT discrimination)

• Generally no mediation (but can still ask)
• Indicates EEOC may initiate lawsuit
• Outside factors may influence designation
• Employer is judged based on allegations

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EEOC Categories of Charges – 3 Types

“B” Charges (most)

• May have some merit, but need investigation
• Mediation is offered

“C” Charges (occasional)

• Immediately dismissed, as untimely, issue not in

EEOC scope, or obviously no merit

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First Steps in the Process

• May be co-filed with state anti-discrimination

agency if work-share agreement in place

• Statute of limitations – often 300 days; in some

states, 365 days

• EEOC assists individual to fill out charge
• Often very general allegations but should state

what event(s) or treatment constitutes the discrimination or retaliation

• Discrete Events Cut Off
• Continuing Violation Theory (harassment cases)

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First Steps in the Process

• “No action required” notice
• Initial Review

– Compare the last date of discrimination and date stamped on charge – Calculate statute of limitations immediately

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First Steps in the Process

• Letter of representation to EEOC
• Litigation hold letter
• Limit discussion of charge, protect confidentiality

and privilege

• Separate employees if necessary
• Determine if employee is represented
• Consider ways to mitigate damages

– Offer reinstatement? – No adverse action/discipline without consultation

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First Steps in the Process

• Litigation hold letter

– understand where info is stored – local or centrally – who had anything to do with challenged decision – what kinds of data (sales funnel, financial data, complaints about employee, investigation file, etc.) – all emails to, from or naming plaintiff – update at least every 6 months

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First Steps in Process

• Documents to request (and preserve, electronic

and hard copies)

– Personnel file – Supervisor/site file – Emails to/from/about complainant – Medical/disability/FMLA/work comp files – Investigation file – Grievances – Position descriptions – Ads/postings – Payroll/time records

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First Steps in Process

• Other documents to request (and preserve,

electronic and hard copies)

– Policies/union agreements – Info on comparators – Records related to complainant (if a sales person, get sales record, sales funnel) – Other

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The Investigation

• Helps with decision whether to mediate
• Steps:

– Document gathering and review – Witness interviews, statements – Adapt strategy as you go

• You must uncover good and bad facts
• Talk to witnesses directly, if possible
• Evaluate risk
• Look for the story/theme

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To Mediate or Not

Pro

• Free
• More time to prepare

position statement

• Opportunity for charging

party to be heard

• Early discovery – may learn

you have a real issue

• Save working relationship?
• Save $ in long run
• Confidential (somewhat)

Con

• Takes time
• Mediators – no ability to

select

• Snowball effect with other

employees?

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Position Statements

• “Silver bullet” at beginning and end
• Be accurate and use correct policies

– Correct name of company – Accurate organizational chart – Policies in effect at time – Address each allegation – Identify untimely allegations – Tell story in a positive but not argumentative way – Deal with (narrow) comparators – Be brief and to the point – Incomplete or inaccurate information may trigger further inquiry

• Inconsistencies later will be held against you
• Cover defenses you expect to raise later
• EEOC often gives information in position statement to charging party to

rebut

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Supplemental Requests for Information/Subpoenas

• RFIs

– Short response time – Negotiate scope – Objections – Avoid unnecessary roadblocks

• Subpoenas

– Can be issued at any time – Petition to revoke – Court review

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EEOC On-Site Investigation

• EEOC has right, more common than in the past
• Don’t assume it means agency will find cause
• Provide comfortable area
• Prepare witnesses, similar to a deposition (no

volunteering) but keep tone friendly/helpful

• Can ask about events, people not mentioned in charge
• Attorney should be at interviews with

managers/supervisors but not with non-supervisors (but interview and tell them tell truth)

• At end, try to get feel for any concerns of investigator

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After the Investigation

• EEOC issues its determination
• Most often – “unable to conclude information

established violation” = no probable cause

• Issues 90-day right to sue letter
• Calendar 93 (or 90) days for deadline

23

Conciliation

• If EEOC finds “probable cause” you can

– Talk to EEOC lawyers – Request reconsideration/substantial weight review – But, neither reverses decision – they are already “anchored”

24

Conciliation

• Conciliation – required by statute

– Investigator usually handles; acts as advocate for charging party – Like mediation but both charging party and “investigator” will likely have greater demands – Some investigators imply EEOC will take case and prosecute (and often not true) – Settlement will cost more than before – Likely to go to court

25

Conciliation

• Evaluating EEOC settlement offer

– Occasionally, can correct key fact – How are damages calculated? – Has charging party mitigated damages? – Strong continuing violation theory? – EEOC likely to take case? – Probable cause finding likely to be admitted at trial? – Risks and costs of trial?

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Conciliation

• May include non-monetary relief

– Training (and report when done) – Monitoring and reporting – Posting – Reinstatement (or pay more) – Adopt policies – Consent decree

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Conciliation

• Employer may get important concessions

– Resignation – NDA/non-solicit/non-compete – Promise not to re-apply (easier to get at pre- investigation mediation stage; EEOC views as retaliation) – Timing of payments – Tax considerations

• Two settlement agreements, if reach agreement

28

Conciliation

• May 2014, House Appropriations Committee expressed

concern about EEOC lack of good faith conciliation efforts

• Based on Title VII – if violation found, EEOC

“shall endeavor to eliminate any . . . alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” and cannot file suit unless it was “unable to secure from the respondent a conciliation agreement acceptable to the commission.”

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Conciliation

• Recent cases challenge EEOC’s “good faith”

efforts

– Mach Mining Co. – U.S. Supreme Court

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Conciliation

• Mach Mining, LLC v. EEOC, No. 13-1019 (S. Ct.

4/29/15).

– 7th Circuit – held conciliation not subject to judicial review/not an affirmative defense – 2nd, 5th and 11th Circuits – deep 3-part inquiry – 4th, 6th and 10th Circuits – only required “genuine effort” – S. Ct. - courts can review whether EEOC has satisfied its pre-suit obligation to attempt conciliation, but it is

• nly a “relatively barebones review.”

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Conciliation

• After Mach Mining, EEOC must

– tell employer about claim – what practice has harmed which person or class; and – provide employer with opportunity to discuss to achieve voluntary compliance

• EEOC can meet with affidavit
• Employer can challenge with affidavit
• Court can review whether EEOC provided

information

• If not, remedy is order sending back to EEOC for

appropriate conciliation

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Conciliation

• Why was Mach Mining important?

– Split in circuits – Conciliation process is one of few ways employers can see into EEOC decision making – Conciliation can force EEOC to identify who members of proposed class are, how damages calculated

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Conciliation

• Preserve defense, although now weakened

– Ask EEOC to explain alleged wrongdoing and how to address, define class, no. and identities of members – Don’t be the one that walks out! – Document conciliation and both parties’ positions – Might help persuade higher up decision maker (but much of info very likely not to be admissible)

• During conciliation, be prepared to negotiate; let

charging party vent but eventually move it to negotiation

• Remain civil at all times

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Conciliation

• If conciliation fails, EEOC often issues 90-day

right-to-sue

• Or EEOC sues
• Still have opportunity to mediate and resolve
• Or may decide plaintiff needs time to become

realistic so prepare for discovery and possible motion for summary judgment

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Tips for Avoiding Trouble

1. Early and supplemental preservation holds 2. From day 1, keep eye on trial – work on “silver bullet” 3. Thorough investigation of facts – no matter what 4. Accurate position statements 5. Don’t be afraid to mediate 6. No cover up/hiding evidence 7. Don’t under or over estimate the power of EEOC (court case may be a more even playing field) 8. No retaliation 9. Limit damages – early mediation, offer of re-employment, etc.

• 10. Be cooperative

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