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Discrimination Charge in the Mail? Don’t Be Scared, Be Prepared!! An HR Attorney’s Perspective on Surviving the Administrative Process

Discrimination Charge in the Mail? Don’t Be Scared, Be Prepared!! An HR Attorney’s Perspective on Surviving the Administrative Process

Aaron Zandy

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  • SO – WHAT WOULD YOU DO IF A DOL WAGE AND HOUR INVESTIGATOR SHOWS UP AT YOUR DOOR? Discuss….
  • Standard Form 100 (EEO-1) must be filed by -- All private employers who are: subject to Title VII of the Civil Rights Act of 1964 (as amended by the Equal Employment Opportunity Act of 1972) with 100 or more employees EXCLUDING State and local governments, primary and secondary school systems, institutions of higher education, Indian tribes and tax-exempt private membership clubs other than labor organizations; OR subject to Title VII who have fewer than 100 employees if the company is owned or affiliated with another company, or there is centralized ownership, control or management (such as central control of personnel policies and labor relations) so that the group legally constitutes a single enterprise, and the entire enterprise employs a total of 100 or more employees. Every employer, employment agency, and labor organization subject to this title shall (1) make and keep such records relevant to the determinations of whether unlawful employment practices have been or are being committed, (2) preserve such records for such periods, and (3) make such reports there-from as the Commission shall prescribe by regulation or order, after public hearing, as reasonable, necessary, or appropriate for the enforcement of this title or the regulations or orders there-under. The Commission shall, by regulation, require each employer, labor organization, and joint labor-management committee subject to this title which controls an apprenticeship or other training program to maintain such records as are reasonably necessary to carry out the purposes of this title, including, but not limited to, a list of applicants who wish to participate in such program, including the chronological order in which applications were received, and to furnish to the Commission upon request, a detailed description of the manner in which persons are selected to participate in the apprentice-ship or other training program. Any employer, employment agency, labor organization, or joint labor-management committee which believes that the application to it of any regulation or order issued under this section would result in undue hardship may apply to the Commission for an exemption from the application of such regulation or order, and, if such application for an exemption is denied, bring a civil action in the United States District Court for the district where such records are kept. If the Commission or the court, as the case may be, finds that the application of the regulation or order to the employer, employment agency, or labor organization in question would impose an undue hardship, the Commission or the court, as the case may be, may grant appropriate relief. If any person required to comply with the provisions of this sub-section fails or refuses to do so, the United States District Court for the district in which such person is found, resides, or transact business, shall, upon application of the Commission, or the Attorney General in a case involving a government, governmental agency or political subdivision, have jurisdiction to issue to such person an order requiring him to comply. TITLE 29, CHAPTER XIV CODE OF FEDERAL REGULATIONS
  • HIPAA – Health Insurance Portability and Accountability Act Within HHS, the Office for Civil Rights (“OCR”) has responsibility for implementing and enforcing the Privacy Rule with respect to voluntary compliance activities and civil money penalties. The Health Insurance Portability and Accountability Act of 1996 (HIPAA), Public Law 104-191, was enacted on August 21, 1996. Sections 261 through 264 of HIPAA require the Secretary of HHS to publicize standards for the electronic exchange, privacy and security of health information. Collectively these are known as the Administrative Simplification provisions. Data Safeguards. A covered entity must maintain reasonable and appropriate administrative, technical, and physical safeguards to prevent intentional or unintentional use or disclosure of protected health information in violation of the Privacy Rule and to limit its incidental use and disclosure pursuant to otherwise permitted or required use or disclosure.70 For example, such safeguards might include shredding documents containing protected health information before discarding them, securing medical records with lock and key or pass code, and limiting access to keys or pass codes. See OCR “Incidental Uses and Disclosures” Guidance.

Zandy - Discrimination Charge in the Mail?  Don’t Be Scared Zandy - Discrimination Charge in the Mail? Don’t Be Scared Presentation Transcript

  • Discrimination Charge in the Mail? Don ’ t Be Scared, Be Prepared!! An HR Attorney ’ s Perspective on Surviving the Administrative Process
    • Aaron L. Zandy, SPHR, Esquire
    • Ford & Harrison LLP
    • (407) 418-2304
    • [email_address]
  • Bring It On!!!
    • EEOC - Knowledge is Power
    • The Charge - Preparing for Battle
    • Investigation - Doing it Right
    • Mediation - To Mediate or Not to Mediate
    • Position Statements - A Serious Endeavor
    • Determination – Now What?
    • Top Mistakes By Employers
  • EEOC - Knowledge Is Power
  • EEOC?
    • Equal Employment Opportunity Commission ( “ EEOC ” ) is an independent federal agency created by Congress in 1964 to eradicate discrimination in employment
    • EEOC wields great power & broad discretion in achieving the goal of eradicating discrimination in employment
  • EEOC ’ s Purpose?
    • Develop regulations & policy guidance to promote equal employment opportunity in the workplace, training & technical assistance, outreach, & educational programs
    • Investigate claims of discrimination to determine whether discrimination has occurred
  • Work-Share Agreement?
    • Fair Employment Practice (FEP) Agencies
    • Florida Commission on Human Relations (FCHR)
    • County & City Agencies
  • Laws Enforced by EEOC
    • Title VII of the Civil Rights Act of 1964
    • Age Discrimination in Employment Act of 1967
    • Rehabilitation Act of 1973
    • Americans With Disabilities Act of 1990
    • Equal Pay Act of 1963 (EPA)
    • Genetic Information Nondiscrimination Act of 2008
  • Laws Not Enforced by EEOC
    • Fair Labor Standards Act of 1938 (FLSA)
    • Family Medical Leave Act of 1993 (FMLA)
    • Civil Rights Act, Section 1981
    • Occupational Health Safety Act (OSHA)
    • Workers’ Compensation Retaliation
    • Worker Adjustment Retraining Notification (WARN)
    • Common Law Torts
  • Charging Filing Trends
  • The Charge – Preparing for Battle
  • Charge Filing Process
    • Charge of Discrimination filed (300 day statute of limitations / 365 in Florida)
    • Charge Affidavit - assistance by EEOC in drafting
    • No presumed guilt - allegedly
    • Charge will provide information explaining allegations, unlawful employment practice, who is involved, & what law(s) are involved
    • Executed by Charging Party (practice pointer … look closely at notary stamp)
  • Charge Filing Process
    • EEOC will notify Employer of Charge
    • Send a copy of Charge or notice of Charge
    • Title VII & ADA require notification within ten (10) days; however, this is often difficult given voluminous number of charges
    • “ No action required at this time ” notices
  • The Charge - First Things First
    • Letter of Representation (control interviews)
    • Litigation Hold Letter (avoid spoliage)
    • Stop the Clock on Damages
      • Unconditional Offer of Reinstatement
    • Affidavits or Witness Statements (lock it in)
    • Separate Hostile Parties Immediately
    • Ask investigator for a reading of Charge affidavit
    • Keep a detailed record of all conversations with EEOC
    • Avoid retaliation - discuss Charge only with employees who legitimately need to know about it
    The Charge - First Things First
  • EEOC Charge Prioritization
  • The One “ C ” You Will Enjoy Getting
    • “ C ” Charges are immediately dismissed
    • Untimely
    • Complaining about a statute not covered by the EEOC or
    • Obviously merit-less
  • “ B ” is Average
    • Most Charges are classified as “ B ”
    • Charges which initially appear to have some merit, but will require further investigation
    • Employers typically offered mediation
  • “ A ” is Bad
    • High priority charges (e.g. systematic discrimination, pattern & practice, priority issues, serious allegations, etc.)
    • For example, criminal background check cases
    • No mediation is offered
    • High potential for EEOC lawsuit
  • Investigation – Doing It Right!
  • Preparing for Investigation
    • Identify potential witnesses
    • Identify documents to be reviewed
    • Prepare strategy for investigation
    • Prepare outline of questions
    • Review plan periodically
    • Attorney-client / Work product
  • The Witness Interview
    • Funnel approach to questioning
    • Conversational v. Accusatory
    • No threats or promises (especially confidentiality)
    • Remain neutral (independent from decision-maker)
  • The Witness Interview
    • Opportunity to tell his or her side/advise management of any other information to be considered (to accused)
    • Has witness kept diary, calendar of events?
    • Cover specific events in chronological blocks
    • Who, what, where, when how, why & any witnesses?
  • What To Look For During Interview
    • Are facts that have been presented first-hand, personal knowledge or hearsay, rumors or gossip?
    • Internal/external inconsistencies?
    • Does story make sense?
    • Documentation to corroborate
    • Amount of detail
  • What To Look For During Interview
    • Witness ’ demeanor (sweat, shifting in seat, lack of eye contact, pleading 5 th , etc.)
    • Was witness forthcoming or did you have to pull information?
    • Admissions (I was only trying to help … .)
    • Circumstantial evidence (behavior in other situations makes more likely that not … .)
  • Mediation – To Mediate Or Not To Mediate
  • To Mediate or Not to Mediate
    • Pro ’ s:
      • Process is free & confidential
      • Delay filing position statement
      • You might be able to resolve case
      • Repair existing relationship
      • Free discovery
      • You can scare them! 
    • Con ’ s:
      • Time
      • Cost
      • EEOC Mediators (some effective, others … well, not so effective)
      • Okay, I will say it … “ some are awful!!! ”
    To Mediate or Not to Mediate
    • Who should attend?
    • What should you bring with you (someone with authority to settle, insurance carrier representative, fact witness, $ and release)?
    Making EEOC Mediation Work for You
  • Effective Presentations at EEOC Mediation
    • Opening Statements
    • Don ’ t Attack (Won ’ t agree on facts, two sides of every story, open mind, listen, good faith, etc.)
    • Settlement Strategies (good faith offers, take it or leave it, brackets, don ’ t bid against yourself, etc.)
    • Interest v. Position negotiating
  • Position Statements – A Serious Endeavor
  • EEOC Process
    • Correct name & address
    • Number of employees
    • Organizational chart or statement
    • Written Position Statement on each allegation, supported by documentation or written statements,
    • Copy of each written rule, policy or procedure relevant to allegations
    • Personnel file of charging party & those identified in Charge
    • Corporate History & Description
    • Relevant Policies
    • Tell a Convincing & Easy to Understand Story
    • Respond to Allegations & Use Comparators
    • Legal Argument (case law & EEOC Guidance)
    • Exhibits
    • Affidavits, Declarations & Witness Statements (last resort)
    • Short & Sweet (like Aaron) 
    Effective Position Statements
    • Be very careful in responding
    • Don ’ t assume you have to provide everything
    • You can object & ask for relevancy
    • Be tough & determined, but cooperative
    • Wiggle Room Footnote …
    • Misstatements in SOP can be used at trial
    Effective Position Statements
  • Preparing for EEOC On-Site Investigation
    • Generally considered to indicate greater interest on part of EEOC
    • May ask questions about things not in Charge
    • Examination of workplace
    • Cooperate with investigator, but attempt to limit the scope to allegations in Charge
    • Prepare a comfortable interview environment for investigator & witness
  • Determination – Now What?
  • EEOC Determination
    • 182 Days - average time to finalize EEOC investigation
    • Failure to state a claim
    • Not timely filed
    • Unable to conclude information established violation of statute
    • Other
  •  
  • Ouch, They Believe the Charging Party
    • Cause Determinations
    • Request for Reconsideration and Substantial Weight Review
    • Talk to the EEOC Lawyers
  • Conciliation
    • Like Mediation on steroids
    • Monetary Relief (Unrealistic demands, poisons well in future lawsuit)
    • Non-monetary relief
      • Training
      • Posting Notices
      • Reinstatement
      • Confidentiality
      • Consent Decree
    • Good faith conciliation
    • Memorialize everything in writing
    The EEOC Cannot Always Push You Around
  • We Still Cannot Reach a Resolution
    • EEOC Litigation- 200-450 cases filed a year
    • Right-to Sue
  • Top Mistakes When Dealing With the EEOC
    • Communicating with the EEOC
    • Underestimating who you are dealing with
    • Not expecting the EEOC to litigate
    • Retaliation
    • Turning everything over
    Top Mistakes Made When Dealing With the EEOC
    • Not participating in mediation or using other avenues to settle
    • Not slowing the process down, double edged sword when it comes to back pay
    • Misstating the facts or hiding evidence
    • It isn ’ t the crime, it is the cover up
    Top Mistakes Made When Dealing With the EEOC
  • Bring It On!!!
    • EEOC - Knowledge is Power
    • The Charge - Preparing for Battle
    • Investigation - Doing it Right
    • Mediation - To Mediate or Not to Mediate
    • Position Statements - A Serious Endeavor
    • Determination – Now What?
    • Top Mistakes By Employers
  • Discrimination Charge in the Mail? Don ’ t Be Scared, Be Prepared!! An HR Attorney ’ s Perspective on Surviving the Administrative Process
    • Presented by:
    • Aaron L. Zandy, SPHR, Esquire
    • Ford & Harrison LLP
    • (407) 418-2304
    • [email_address]