The EEOC in 2013 and Investigation Best Practices

Transcription

1 The EEOC in 2013 and Investigation Best Practices ALICIA DULEBA Jackson Walker L.L.P. 100 Congress Avenue, Suite 1100 Austin, Texas (512)

2 Total EEOC Charges in 2012 Total Charges for FY ,412 Charges are slightly down after an upward trend 120,000 Total Charges 100,000 80,000 60,000 40,000 Total Charges 20,000 0 FY2005 FY2006 FY2007 FY2008 FY2009 FY2010 FY2011 FY2012

3 What s Coming in 2013? Sept. 4, 2012 EEOC releases draft of its proposed Strategic Enforcement Plan (SEP) SEP highlights 5 EEOC enforcement priorities for the next 4 years Dec. 17, 2012 EEOC approves the Strategic enforcement Plan

4 (1) Eliminating systemic barriers in recruitment and hiring Potential areas of enforcement: Restrictive application processes Use of employment screening tools Background screens Date of birth screens in online applications

5 (2) Protecting immigrant, migrant, and other vulnerable workers Possible areas of enforcement: Pay disparities Job segregation Harassment Trafficking Discriminatory language policies

6 (3) Addressing emerging issues Potential emerging issues: ADA Amendments Act issues LGBT coverage under Title VII Accommodating pregnancy

7 (4) Enforcing Equal Pay Laws The EEOC will target compensation systems and practices that discriminate based on gender

8 (5) Preserving access to the legal system Potential areas of enforcement: Retaliatory actions (SEP places heavy emphasis on enforcement potential) Overly broad waivers Settlement provisions that prohibit: filing charges with the EEOC, or providing information in EEOC or other legal proceedings Failure to maintain required EEOC records

9 (6) Combating harassment Harassment continues despite past EEOC efforts The SEP commits the EEOC to reevaluating its enforcement strategies to increase their effectiveness

10 Criminal Background Checks Employers increasingly use criminal background checks to screen applicants Crime is more heavily reflected in certain minority populations EEOC maintains that criminal background checks can violate Title VII by having a disparate impact on minorities

11 Criminal Background Checks Enforcement Guidance In 2012, EEOC released enforcement guidance on the proper use of criminal background checks Provides guidance on how background checks with a disparate impact can be justified as a business necessity

12 Two Recommended Ways to Justify (according to EEOC) Validation Employer validates screen in accordance with the standards in the Uniform Guidelines on Employee Selection Procedures Targeted Screening Process Screening process that takes into account: (1) nature/severity of crime (2) time elapsed since the commission of the crime (3) nature of the job in question Process should allow for individualized assessment of screened applicants

13 Best Practices Train decision makers and hiring officials about the Title VII implications of criminal background check policies Develop a narrowly-tailored written policy and procedure for screening applicants and employees for criminal conduct When asking about criminal records, limit inquiries to conduct which bears some relation to the job Keep information regarding criminal records confidential and only use it for the purpose for which it was intended.

14 ADA & Reasonable Factors Other than Age ( RFOA ) Defense In July 2012, EEOC issued its final rule on RFOA defense To justify a policy that has a disparate impact on older workers, an employer must show it is supported by reasonable factors other than age Provides considerations and examples for determining whether an employment practice is based on reasonable factors other than age.

15 Attendance Control Policies EEOC continues to challenge employer attendance policies of all varieties One-size-fits-all policies are potentially suspect

16 Sears (2010) Policy: All employees who exhaust their workers compensation leave are terminated EEOC Position: ADA violation because no accommodation for ADA disability Result: $6.3 million settlement

17 Jewel-Osco (2011) Policy: Terminate employees unable to return to work without restriction after one-year leave EEOC Position: ADA violation because no accommodation for covered disability Result: $3.2 million settlement

18 Verizon Wireless (2011) Policy: Terminate workers who accumulate certain number of chargeable absences EEOC Position: ADA violation because chargeable absence category doesn t consider ADA-disability status Result: $20 million settlement

19 Takeaways Beware of one-size-fits-all policies Although across-the-board, no-exception policies may seem fair, the EEOC considers them potentially unlawful because they fail to account for ADA disabilities Consider implementing ADA considerations/exemptions into attendance policies

20 Investigation Best Practices

21 89.7% of employees who eventually file a lawsuit, initially reported their concerns internally, either to supervisors or compliance departments

22 As Management You Have a Responsibility!! Management is responsible for promptly addressing any and all misconduct, discrimination or harassment that they either experience, learn about from an employee and/or witness. Management must report all misconduct, discrimination or harassment, even if someone requests that it not be reported. It is not your job as a manager or supervisor to decide whether the conduct constitutes actual misconduct, discrimination or harassment. That will be determined by a thorough investigation.

23 Top 10 Mistakes Employers Make in Investigations 1. Failing to respect the complaint 2. Failing to conduct an investigation when the employee claims he does not want anything done 3. Failing to investigate promptly 4. Promising the complainant the Company will keep the complaint confidential 5. Failing to get the alleged wrongdoer s side of the story

24 Top 10 Mistakes Employers Make in Investigations (cont.) 6. Placing the alleged harasser s buddy as the investigator 7. Failing to document the investigation 8. Retaliating against the complaining party 9. Failing to let the complaining party know the outcome 10. Letting a star employee slide

25 Receiving Complaints If an employee approaches you regarding a complaint, you should assure the employee the following: 1. The company s policy against such misconduct, discrimination and harassment; 2. The company s obligation to investigate; 3. The company s intent to keep the claim confidential to the extent possible; 4. The company s policy on retaliation for reporting misconduct, discrimination or harassment; and 5. The different avenues the company allows for someone to register complaints.

26 Vital Steps in Preparing for a Successful Investigation 1. Identify the need for an investigation 2. Determine who will conduct the investigation 3. Determine the objectives of the investigation 4. Identify potential witnesses (who, when and where) 5. Analyze relevant documents 6. Prepare a strategy for the investigation 7. Prepare an outline of questions 8. Establish special, secure files and records

27 Conducting the Investigation Be prompt Discuss confidentiality (don t promise but try to maintain) Discuss important of honesty Discuss that no retaliation will be tolerated Avoid using legal terms Ask open ended questions Save tough questions until the end Do not ask leading questions that suggest a response Maintain objectivity, the result of investigations are sometimes unpredictable

28 Conducting the Investigation (cont.) List people the complaining party suggests may have relevant information Review your understanding of what was said in interview Don t be afraid of silence Ask follow up questions Make sure witness knows how to contact you in event of further incidents or information Make closing remarks (circle back on confidentiality and retaliation) Be thankful for cooperation

29 Confidentiality Has the NLRB put the kibosh on confidentiality? Banner Health System d/b/a Banner Estrella Medical Center, 358 N.L.R.B. No. 93 (2012) (held that an employer may not maintain a blanket rule prohibiting employees from discussing ongoing investigations of employee misconduct)

30 Implications of Banner Health Precludes blanket confidentiality rule applicable to all internal investigations Certain situations warrant confidentiality (theft, drug use, discrimination, harassment) Review investigation policies and forms Train employees responsible for handling internal investigations

31 Dealing with Resistance Individual representation of employees Employer has a qualified privilege to investigate

32 Dealing with Resistance Representation of the accused Employee has reasonable expectation of possible disciplinary action Is criminal liability a potential? Tex. Disciplinary R. Prof l Conduct Rule 4.04(a)

33 Dealing with Resistance Representation of the complaining party Typically no reasonable expectation of disciplinary action Attorney present = hidden agenda

34 Interview Complaining Party The primary focus of an interview should be to get the facts: who, what, why, when, where and how

35 Interview Alleged Offender When interviewing the alleged offender, it is important to let the employee know that you are objective and impartial As with the complaining party, the investigator should ask who, what, where, when, how and why questions

36 Beware of Liability for Sex Stereotyping I really don t have any choice. Michelle knows a lot of attorneys; I m afraid she ll sue me. And besides you probably did what she said you did because you re a male and nobody would believe you anyway. Sassaman v. Gamache, 566 F.3d 307 (2d. Cir. 2009)

37 Interview Witnesses The involvement of witnesses should generally be limited to those identified by either the complaining party or the alleged offender, those believed to have knowledge of relevant events, or those the investigator feels are important to the investigation. Avoid spiraling out too far on witness interviews.

38 Once the investigation is completed, appropriate action will be taken. All relevant circumstances will be considered when making a determination as to the appropriate action, including: the actual violation of company policy, if any; the seriousness of any violation; previous violations, if any; the company s past practices in similar situations; and federal and state law and regulations.

39 Retaliation Employees who participate in investigation are protected. Crawford v. Metro. Gov t of Nashville & Davidson County, 129 S.Ct. 846 (2009).

40 Making a Determination A determination is made after evaluating the credibility of the witnesses, reviewing the facts, reviewing applicable policies and applying common sense.

41 Taking Action Once a course of action has been recommended, it needs to be implemented.

42 Importance of Documentation Do not express opinions or editorialize The accused was fishy about his story. The complaining party was a basket case. The witness was credible. Prepare notes while information is fresh (preferably right after the investigation).

43 Investigation Report Depending on the complexity of the investigation, consider preparing a final investigation report summarizing all aspects of the investigation.

44 Follow Up Following up with complaining party protects against later allegations Following up helps ensure that remedial action taken was effective Following up sends message to employees that employer is interested in the well being of its employees Following up helps prevent claims of retaliation

45 Conclusion Investigation may prevent a future lawsuit Investigation may be a critical part of Company s defense Investigator is charged with the responsibility of considering the facts and circumstances of each unique fact scenario