The Equal Employment Opportunity Commission: Understanding and Responding to EEOC Charges LIVE Webcast

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The U.S. Equal Employment Opportunity Commission’s (EEOC) is a bi-partisan body of five members, appointed by the President and confirmed by the Senate, who act as the enforcer of employment …

The U.S. Equal Employment Opportunity Commission’s (EEOC) is a bi-partisan body of five members, appointed by the President and confirmed by the Senate, who act as the enforcer of employment anti-discrimination laws and chief promoter of equal employment opportunity in the US.

In this webinar, leading practitioners and experts in management, employment, labor, and law will help attendees understand the charges, consequences, and responses required when facing charges levied by the EEOC – from the time a notice is received to the process of litigation. Specifically the issues being addressed include:

Interpreting EEOC Charges — Charge Categorization
EEOC Priority Analysis
Responding to Requests for Information & Subpoenas; and/or Strategic Enforcement Goals
Responding to the charges – Drafting a Response
Preliminary Response
Internal Investigation
Prepare Position Statement
Settle or Mediate – Advantages and Disadvantages
Federal vs state agencies approach
Preparing witnesses and onsite interviews in investigations

To view the webcast go to this link: http://youtu.be/mWGbxitiHPQ


To learn more about the webcast please visit our website: http://theknowledgegroup.org/

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  • NOTE: One agency typically will take the lead in the investigation and the other usually will adopt findings
    Each agency is free, however, to reach its own conclusions

Transcript

  • 1. Speaker Firms and Organization: Seyfarth Shaw LLP Paul Kehoe Senior Counsel Foley & Mansfield Louis C. Klein Of Counsel Dorsey & Whitney Marilyn Clark Partner Thank you for logging into today’s event. Please note we are in standby mode. All Microphones will be muted until the event starts. We will be back with speaker instructions @ 11:55am. Any Questions? Please email: Info@knowledgecongress.org Group Registration Policy Please note ALL participants must be registered or they will not be able to access the event. If you have more than one person from your company attending, you must fill out the group registration form. We reserve the right to disconnect any unauthorized users from this event and to deny violators admission to future events. To obtain a group registration please send a note to info@knowledgecongress.org or call 646.202.9344. Presented By: June 06, 2014 1 Partner Firms:
  • 2. June 06, 2014 2 Follow us on Twitter, that’s @ Know_Group to receive updates for this event as well as other news and pertinent info.  If you experience any technical difficulties during today’s WebEx session, please contact our Technical Support @ 866-779-3239.  You may ask a question at anytime throughout the presentation today via the chat window on the lower right hand side of your screen. Questions will be aggregated and addressed during the Q&A segment.  Please note, this call is being recorded for playback purposes.  If anyone was unable to log in to the online webcast and needs to download a copy of the PowerPoint presentation for today’s event, please send an email to: info@knowledgecongress.org. If you’re already logged in to the online webcast, we will post a link to download the files shortly.  If you are listening on a laptop, you may need to use headphones as some laptops speakers are not sufficiently amplified enough to hear the presentations. If you do not have headphones and cannot hear the webcast send an email to info@knowledgecongress.org and we will send you the dial in phone number.
  • 3. June 06, 2014 3  About an hour or so after the event, you'll be sent a survey via email asking you for your feedback on your experience with this event today - it's designed to take less than two minutes to complete, and it helps us to understand how to wisely invest your time in future events. Your feedback is greatly appreciated. If you are applying for continuing education credit, completions of the surveys are mandatory as per your state boards and bars. 6 secret words (3 for each credit hour) will be given throughout the presentation. We will ask you to fill these words into the survey as proof of your attendance. Please stay tuned for the secret word.  Speakers, I will be giving out the secret words at randomly selected times. I may have to break into your presentation briefly to read the secret word. Pardon the interruption.
  • 4. June 06, 2014 4 Welcome to the Knowledge Group Unlimited Subscription Programs. We have Two Options Available for You: FREE UNLIMITED: This program is free of charge with no further costs or obligations. It includes:  Unlimited access to over 15,000 pages of course material from all Knowledge Group Webcasts.  Subscribers to this program can download any slides, white papers, or supplemental material covered during all live webcasts.  50% discount for purchase of all Live webcasts and downloaded recordings. PAID UNLIMITED: Our most comprehensive and cost-effective plan, for a one-time fee:  Access to all LIVE Webcasts (Normally $199 to $349 for each event without a subscription). Including: Bring-a-Friend – Invite a client or associate outside your firm to attend for FREE. Sign up for as many webcasts as you wish.  Access to all of Recorded/Archived Events & Course Material includes 1,500+ hours of audio material (Normally $299 for each event without a subscription).  Free CLE/CPE/CE Processing (Normally $49 Per Course without a subscription).  Access to over 15,000 pages of course material from Knowledge Group Webcasts.  Ability to invite a guest of your choice to attend any live webcast Free of charge (Exclusive benefit only available for PAID UNLIMITED subscribers).  6 Month Subscription is $299 with No Additional Fees Other options are available.  Special Offer: Sign up today and add 2 of your colleagues to your plan for free Check the “Triple Play” box on the sign-up sheet contained in the link below. https://gkc.memberclicks.net/index.php?option=com_mc&view=mc&mcid=form_157964
  • 5. June 06, 2014 5 Knowledge Group UNLIMITED PAID Subscription Programs Pricing: Individual Subscription Fees: (2 Options) Semi-Annual: $299 one-time fee for a 6 month subscription with unlimited access to all webcasts, recordings, and materials. Annual: $499 one-time fee for a 12 month unlimited subscription with unlimited access to all webcasts, recordings, and materials. Group plans are available. See the registration form for details. Best ways to sign up: 1. Fill out the sign up form attached to the post conference survey email. 2. Sign up online by clicking the link contained in the post conference survey email. 3. Click the link below or the one we just posted in the chat window to the right. https://gkc.memberclicks.net/index.php?option=com_mc&view=mc&mcid=form_157964 Discounts: Enroll today and you will be eligible for the “Triple Play” program and 3% off if you pay by credit card. Also we will waive the $49 CLE/CPE processing fee for today’s conference. See the form attached to the post conference survey email for details. Questions: Send an email to: info@knowledgecongress.org with “Unlimited” in the subject.
  • 6. Partner Firms: June 06, 2014 6 Seyfarth Shaw LLP has more than 800 attorneys in the U.S., London, Shanghai, Melbourne and Sydney offering a national platform and an international gateway to serve the changing business and legal needs in employment, litigation, corporate, real estate and employee benefits. Recognized by in-house counsel as ‘Best of the Best’ for client service among the 2013 BTI Consulting Group’s Client Service A-team and named among the Most Innovative Law Firms of 2013 by the Financial Times in its U.S. Innovative Lawyers 2013 report for the third consecutive year. Foley & Mansfield, named a 2014 “Go-To” Law Firm for Fortune 500 clients, provides a broad spectrum of services to clients throughout the country. Celebrating its 25th year in business, Foley & Mansfield is a national law firm with a diverse practice of business and trial attorneys in ten offices across the U.S. To learn more about how the firm can serve your business, visit www.foleymansfield.com.
  • 7. Partner Firms: June 06, 2014 7 Clients have relied on Dorsey and Whitney LLP since 1912 as a valued business partner. With 18 locations in the United States, Canada, Europe and Asia region, Dorsey provides an integrated, proactive approach to its clients' legal and business needs. Dorsey represents a number of the world's most successful companies from a wide range of industries, including leaders in the financial services, health care and life sciences, agribusiness, energy, and infrastructure sectors, as well as major non-profit and government entities.
  • 8. Brief Speaker Bios: Paul Kehoe Mr. Kehoe is Senior Counsel in Seyfarth Shaw LLP’s Washington D.C. office. Prior to re-joining Seyfarth in September 2013, he served as an Attorney Advisor to the Honorable Victoria A. Lipnic, Commissioner at the Equal Employment Opportunity Commission, for almost three and a half years. While at the EEOC, Mr. Kehoe provided legal counsel to Commissioner Lipnic regarding all policy matters confronting the Commission, including final regulations and enforcement guidance documents, and regarding all aspects of agency business such as Commission-initiated litigation, systemic litigation, requests for approval to file amicus briefs by the Office of General Counsel, subpoena determinations, and field activities. He negotiated and drafted regulatory text for the final regulations under the ADAAA, GINA, and the ADEA, and the Commission’s Enforcement Guidance on the Consideration of Arrest and Criminal Conviction Decisions under Title VII. June 06, 2014 8 Louis C. Klein Louis C. Klein has nearly 20 years’ experience in all aspects of employment counseling,, workplace investigation, mediation and trial practice. Louis has handled numerous trials, arbitrations and mediations, and participated in administrative proceedings before the California Department of Fair Employment and Housing ("DFEH"), the United States Equal Employment Opportunity Commission ("EEOC"), and the California Labor Commissioner. He also provides advice and counseling on day-to-day employment law issues, including discipline and termination, wage and hour issues, employment contracts for employees and key executives, and other transactional/employment business advice.
  • 9. Brief Speaker Bios: Marilyn Clark Marilyn Clark is a partner at Dorsey & Whitney LLP. She joined Dorsey’s Labor and Employment group in 2006, and her practice consists of both litigation and advice services in a broad range of employment matters. In addition to representing clients in various state and federal courts, she has advocated for individuals and businesses in arbitrations, mediations, and administrative proceedings, including proceedings before the Equal Employment Opportunity Commission, the Occupational Safety and Health Administration, and various state unemployment and civil rights divisions. She also regularly offers day-to-day guidance to employers of all sizes on compliance with employment laws. She has expertise in wage and hour audits, particularly with regard to exemption status, and she has presented and offered numerous training sessions on this topic. She graduated cum laude from Cornell Law School, where she served as a managing editor of the Cornell Law Review. June 06, 2014 9 ► For more information about the speakers, you can visit: http://theknowledgegroup.org/event_name/the-equal-employment-opportunity-commission-understanding-and-responding-to-eeoc-charges- live-webcast/
  • 10. The U.S. Equal Employment Opportunity Commission’s (EEOC) is a bi-partisan body of five members, appointed by the President and confirmed by the Senate, who act as the enforcer of employment anti- discrimination laws and chief promoter of equal employment opportunity in the US. In this webinar, leading practitioners and experts in management, employment, labor, and law will help attendees understand the charges, consequences, and responses required when facing charges levied by the EEOC – from the time a notice is received to the process of litigation. Specifically the issues being addressed include: •Interpreting EEOC Charges — Charge Categorization •EEOC Priority Analysis •Responding to Requests for Information & Subpoenas; and/or Strategic Enforcement Goals •Responding to the charges – Drafting a Response • Preliminary Response • Internal Investigation • Prepare Position Statement •Settle or Mediate – Advantages and Disadvantages •Federal vs state agencies approach •Preparing witnesses and onsite interviews in investigations June 06, 2014 10
  • 11. Featured Speakers: June 06, 2014 11 SEGMENT 1: Paul Kehoe Senior Counsel Seyfarth Shaw LLP SEGMENT 2: Louis C. Klein Of Counsel Foley & Mansfield SEGMENT 3: Marilyn Clark Partner Dorsey & Whitney
  • 12. Introduction Mr. Kehoe is Senior Counsel in Seyfarth Shaw LLP’s Washington D.C. office. Prior to rejoining Seyfarth in September 2013, he served as an Attorney Advisor to the Honorable Victoria A. Lipnic, Commissioner at the Equal Employment Opportunity Commission, for almost three and a half years. While at the EEOC, Mr. Kehoe provided legal counsel to Commissioner Lipnic regarding all policy matters confronting the Commission, including final regulations and enforcement guidance documents, and regarding all aspects of agency business such as Commission-initiated litigation, systemic litigation, requests for approval to file amicus briefs by the Office of General Counsel, subpoena determinations, and field activities. He negotiated and drafted regulatory text for the final regulations under the ADAAA, GINA, and the ADEA, and the Commission’s Enforcement Guidance on the Consideration of Arrest and Criminal Conviction Decisions under Title VII. June 06, 2014 12 SEGMENT 1: Paul Kehoe Senior Counsel Seyfarth Shaw LLP
  • 13. Introduction • EEOC Structure • 5 Commissioners • Office of General Counsel • Office of Legal Counsel • Office of Field Programs • 53 Field Offices, including 15 District Offices • Role of the Commissioners • Annual Charge Receipts June 06, 2014 13 SEGMENT 1: Paul Kehoe Senior Counsel Seyfarth Shaw LLP
  • 14. Charge Statistics • FY 2009 – 93,277 (received); 85,980 (resolved); 85,768 (backlog) • FY 2010 – 99,922 (received); 104,999 (resolved); 86,338 (backlog) • FY 2011 – 99,947 (received); 112,499 (resolved); 78,136 (backlog) • FY 2012 – 99,412 (received); 111,139 (resolved); 70,312 (backlog) • FY 2013 – 93,724 (received); 97,252 (resolved); 70,781 (backlog) June 06, 2014 14 SEGMENT 1: Paul Kehoe Senior Counsel Seyfarth Shaw LLP
  • 15. Priority Charge Handling Procedures (“PCHP”) • Pre-1995: Full Investigation Protocol • PCHP adopted in 1995 • Predicated on National Enforcement Plan and Local Enforcement Plan Priorities • Focus on priority areas and charge closures • Dedicated application of PCHP eases June 06, 2014 15 SEGMENT 1: Paul Kehoe Senior Counsel Seyfarth Shaw LLP
  • 16. EEOC’s Systemic Initiative • Adopted in 2006; Gained Momentum within 3-4 years • Cooperative Effort Among EEOC Field Offices • Concerted Move Toward Initiating More Systemic Cases • Based On The Notion That “Where There Is Smoke (One EEOC Charge), There Is Likely To Be Fire” (Discrimination Against A Group Of Employees) • Employers Will Face More Class-Like Cases Not Governed By Federal Rules That Apply To Other Class Cases June 06, 2014 16 SEGMENT 1: Paul Kehoe Senior Counsel Seyfarth Shaw LLP
  • 17. Strategic Enforcement Plan • In December 2012, the EEOC announced that it approved its Strategic Enforcement Plan for FY 2013-2016. • EEOC’s SEP will function as the blueprint for the Commission’s enforcement activity for the next several years. • SEP further emphasizes the EEOC’s increased emphasis on systemic litigation suits. • “meritorious systemic charges and cases that raise SEP or district priority issues [will] be given precedence over individual priority matters and over all non-priority matters, whether individual or systemic.” • Systemic cases can have a significant impact on employers given the EEOC’s wide-reaching investigation and aggressive litigation practices. June 06, 2014 17 SEGMENT 1: Paul Kehoe Senior Counsel Seyfarth Shaw LLP
  • 18. Strategic Enforcement Plan (cont’d) 6 Priorities • Eliminating Barriers in Recruitment and Hiring • Protecting Immigrant, Migrant and Other Vulnerable Workers • Addressing Emerging and Developing Issues • Enforcing Equal Pay Laws • Preserving Access to the Legal System • Preventing Harassment Through Systemic Enforcement and Targeted Outreach Other Priorities • District Complement Plans – LOCATION, LOCATION, LOCATION June 06, 2014 18 SEGMENT 1: Paul Kehoe Senior Counsel Seyfarth Shaw LLP
  • 19. SEP Priorities Within The Priorities Watch out for new Statutes, Regulations and/or Guidance • Reasonable Accommodation Cases • Background Checks & Implicit Bias • ADEA Reduction in force cases • Leave Cases • Pregnancy Discrimination • Wellness Plans June 06, 2014 19 SEGMENT 1: Paul Kehoe Senior Counsel Seyfarth Shaw LLP
  • 20. EEOC Performance In 2013 • Charges • 93,724 (received); 97,252 (resolved); 70,781 (backlog) • $372.1M Collected • Litigation • 134 Lawsuits Filed • $39M Collected • Continued Implementation of Strategic Enforcement Plan June 06, 2014 20 SEGMENT 1: Paul Kehoe Senior Counsel Seyfarth Shaw LLP
  • 21. EEOC Performance in 2013 June 06, 2014 21 SEGMENT 1: Paul Kehoe Senior Counsel Seyfarth Shaw LLP
  • 22. EEOC Cases Filed by District FY 2013 June 06, 2014 22 SEGMENT 1: Paul Kehoe Senior Counsel Seyfarth Shaw LLP
  • 23. Interpreting an EEOC Charge • Charge Classification – A, B, C • Systemic Target? • Class or policy allegations? • Priority Area? • Subject of a recent guidance document? June 06, 2014 23 SEGMENT 1: Paul Kehoe Senior Counsel Seyfarth Shaw LLP
  • 24. Requests For Information and Subpoenas • The EEOC Is Uses Its Subpoena Power As An Early Discovery Tool • Pursuing More Aggressively Than Ever Before • Short Time Frame To Challenge An EEOC Subpoena (5 Days) • Case law not favorable to Respondents • Fewer subpoena enforcement actions in 2013 • EEOC v. HomeNurse, Inc., 2013 U.S. Dist. LEXIS 147686 (N.D. Ga. Sept. 30, 2013) (Court denied the EEOC’s application for enforcement of its administrative subpoena) June 06, 2014 24 SEGMENT 1: Paul Kehoe Senior Counsel Seyfarth Shaw LLP
  • 25. Introduction Louis C. Klein has nearly 20 years’ experience in all aspects of employment counselling, workplace investigation, mediation and trial practice. Louis has handled numerous trials, arbitrations and mediations, and participated in administrative proceedings before the California Department of Fair Employment and Housing ("DFEH"), the United States Equal Employment Opportunity Commission ("EEOC"), and the California Labor Commissioner. He also provides advice and counseling on day-to-day employment law issues, including discipline and termination, wage and hour issues, employment contracts for employees and key executives, and other transactional/employment business advice. June 06, 2014 25 SEGMENT 2: Louis C. Klein Of Counsel Foley & Mansfield
  • 26. Preliminary Response to EEOC Charge  Review Charge  Do Not Ignore!  Notify Affected Managers  Obtain and Preserve all documents relating to Charging Party  Emails, Electronic Information, Personnel Files, Hiring/Firing Practices and Policies and other employment policies relating to Charge June 06, 2014 26 SEGMENT 2: Louis C. Klein Of Counsel Foley & Mansfield
  • 27. Preliminary Response  Prepare Notice of Appearance  Request Extension for Position Statement if needed  Do not wait to request extension  Call – do not write – EEOC Investigator to request extension – Time is critical  Be courteous and responsive when speaking with EEOC Investigator – Why?  Confirm extension in writing June 06, 2014 27 SEGMENT 2: Louis C. Klein Of Counsel Foley & Mansfield
  • 28. Preliminary Response  Determine if Charge is Timely  Was it filed within the Statutory Time: 180 days from date of discriminatory act  Verify dates in Charge with documentation  State FEP Agency – May give Charging Party an additional amount of time – 300 days from date of discriminatory act  If Charge is untimely, may be able to obtain dismissal June 06, 2014 28 SEGMENT 2: Louis C. Klein Of Counsel Foley & Mansfield
  • 29. Preliminary Response  Plan Internal Investigation  EEOC Enforcement Guidance  Promptness - Diligent and timely  Impartiality – Objective Investigation  Confidentiality  Training  Thoroughness  Questioning – relevant, open-ended questions  Determining Credibility  Making a Determination June 06, 2014 29 SEGMENT 2: Louis C. Klein Of Counsel Foley & Mansfield
  • 30. Preliminary Response  Create Investigation Plan  Interviews  Complaining Employee  Alleged Wrongdoer  Witnesses  Documents  Report  Determination  Action June 06, 2014 30 SEGMENT 2: Louis C. Klein Of Counsel Foley & Mansfield
  • 31. Preliminary Response  Consider nature of complaint: Sexual harassment, discrimination, hiring practices, disability  Consider appropriateness of administrative leave or temporary transfer of assignments June 06, 2014 31 SEGMENT 2: Louis C. Klein Of Counsel Foley & Mansfield
  • 32. Preliminary Response  Review potential for Retaliatory Action  Notify managers who have responsibility over Charging Party  Scrutinize any adverse employment actions before disciplining Charging Party  If Charging Party has engaged in misconduct, suspend with pay pending investigation rather than immediate termination June 06, 2014 32 SEGMENT 2: Louis C. Klein Of Counsel Foley & Mansfield
  • 33. Preliminary Response  Mediation  Assess whether it is in Employer’s best interest to pursue mediation or settlement of EEOC Charge  Continue with investigation June 06, 2014 33 SEGMENT 2: Louis C. Klein Of Counsel Foley & Mansfield
  • 34. Internal Investigation  Designate “Neutral” Investigator  Is Investigator a witness?  Licensed Private Investigator  Attorney  In-House  Someone trained to conduct investigations  Someone not in chain of command June 06, 2014 34 SEGMENT 2: Louis C. Klein Of Counsel Foley & Mansfield
  • 35. Internal Investigation  Review Charges  Notify Legal Counsel and HR  Do it early  Set Plan for Investigation and response  Review relevant documents  Personnel files, company handbook and policies, emails, nonprivacy-protected social media June 06, 2014 35 SEGMENT 2: Louis C. Klein Of Counsel Foley & Mansfield
  • 36. Internal Investigation  Interview Charging Party  As soon as possible  Consider neutral site  Explain process  Fact Background – Funnel Approach  Timeline/Chronology  Witnesses  Documents  Catch-all questions June 06, 2014 36 SEGMENT 2: Louis C. Klein Of Counsel Foley & Mansfield
  • 37. Internal Investigation  Do not give legal advice  Do not become subjective or bias  Do not commit to a particular response  Do not retaliate  Castelluccio v. IBM (Conn. Dist.) – one-sided investigation inadmissible in court June 06, 2014 37 SEGMENT 2: Louis C. Klein Of Counsel Foley & Mansfield
  • 38. Internal Investigation  Alleged Wrongdoer Interview  After Charging Party  Inform of Charge  No Retaliation  Review Policies  Other Witnesses  Same process – Funnel Approach  Re-Interview Charging Party, Alleged Wrongdoer and other employees June 06, 2014 38 SEGMENT 2: Louis C. Klein Of Counsel Foley & Mansfield
  • 39. Internal Investigation  Written Report of Investigation  Basis for Position Statement  Credibility Determinations  Summary of Interviews and Documents reviewed  Narrative of Investigation and analysis  Attach all relevant material  REACH A CONCLUSION June 06, 2014 39 SEGMENT 2: Louis C. Klein Of Counsel Foley & Mansfield
  • 40. Internal Investigation  Appropriate Response  Failure to act is fatal  Punishment should fit the crime  Verbal warning  Written warning  Counseling  Suspension/Probation  Transfer/Demotion  Termination June 06, 2014 40 SEGMENT 2: Louis C. Klein Of Counsel Foley & Mansfield
  • 41. Internal Investigation  A Word on Confidentiality  EEOC Guidelines – Try to Protect Confidentiality  NLRB - Banner Health System, 358 NLRB No. 93 (2012) - Employer’s burden to first determine whether: (1) witnesses need protection; (2) evidence is in danger of being destroyed; (3) testimony is in danger of being fabricated, or (4) there is a need to prevent a cover up  EEOC interview – broad policies can run afoul of anti-retaliation provisions of Title VII June 06, 2014 41 SEGMENT 2: Louis C. Klein Of Counsel Foley & Mansfield
  • 42. Position Statement  Take Seriously – Employer’s chance to tell complete story – should be more than a response to Charge – But be Respectful  Clear, concise and thorough  Remember to Educate – EEOC investigator likely does not know your business – do not use jargon  Include documents  Check and re-check facts June 06, 2014 42 SEGMENT 2: Louis C. Klein Of Counsel Foley & Mansfield
  • 43. Position Statement  If denial of Charge – state in beginning and give brief summary of Employer’s position  Describe Employer’s business  Describe Charging Party’s employment history and job  Describe Employer’s policies and procedures  Describe and explain any adverse employment actions  Show why no discriminatory action took place June 06, 2014 43 SEGMENT 2: Louis C. Klein Of Counsel Foley & Mansfield
  • 44. Position Statement  Show why other employees not similarly situated to Charging Party, or why action was consistent with other determinations  Conclusion and Request for Dismissal of Charges  Other issues:  Timeliness of charge  Offers of reinstatement  After-acquired evidence June 06, 2014 44 SEGMENT 2: Louis C. Klein Of Counsel Foley & Mansfield
  • 45. Position Statement  Discoverable  Can be used in subsequent litigation  All information in EEOC files may be discoverable in litigation  Kwan v. Andalex Group, LLC (2nd Cir.) – changing story from EEOC Position Statement to Litigation  Inconsistent statements June 06, 2014 45 SEGMENT 2: Louis C. Klein Of Counsel Foley & Mansfield
  • 46. Introduction Marilyn Clark is a partner at Dorsey & Whitney LLP. She joined Dorsey’s Labor and Employment group in 2006, and her practice consists of both litigation and advice services in a broad range of employment matters. In addition to representing clients in various state and federal courts, she has advocated for individuals and businesses in arbitrations, mediations, and administrative proceedings, including proceedings before the Equal Employment Opportunity Commission, the Occupational Safety and Health Administration, and various state unemployment and civil rights divisions. She also regularly offers day- to-day guidance to employers of all sizes on compliance with employment laws. She has expertise in wage and hour audits, particularly with regard to exemption status, and she has presented and offered numerous training sessions on this topic. She graduated cum laude from Cornell Law School, where she served as a managing editor of the Cornell Law Review. June 06, 2014 46 SEGMENT 3: Marilyn Clark Partner Dorsey & Whitney
  • 47. Should You Settle or Mediate? • A key component of internal investigations is RISK ASSESSMENT – Underlying facts and evidence are important in determining whether it makes sense to pursue early resolution – Other considerations include: • Witness demeanor • Charging Party’s demeanor • Opposing counsel • Opening demand • Business / operational needs • Type of charge: “A” or “B” • Evaluate case early to maximize value of settlement / mediation June 06, 2014 47 SEGMENT 3: Marilyn Clark Partner Dorsey & Whitney
  • 48. Should You Settle or Mediate? • Advantages to mediating appropriate charge: – May short-circuit costly investigation / litigation processes • Mediation usually takes place early in the process prior to agency’s investigation of the charge • Good track record of successful mediations – May be able to settle for less at agency stage • Good chance for resolution with non-monetary component • Settlement cost likely will increase once litigation filed and positions “hardened” – Especially true if probable cause finding – Mediation services through the agency are free – Mediation is confidential June 06, 2014 48 SEGMENT 3: Marilyn Clark Partner Dorsey & Whitney
  • 49. Should You Settle or Mediate? • Disadvantages to mediating the wrong charge: – Agency is disposed to push for settlement, even where charge seems frivolous • Mediating every charge may encourage disgruntled employees to file frivolous complaints – If mediation fails, Charging Party may develop unrealistic expectations regarding potential recovery – Mediators vary in style and approach June 06, 2014 49 SEGMENT 3: Marilyn Clark Partner Dorsey & Whitney
  • 50. If You Decide to Mediate: Consider whether to engage counsel • Advantages: – Help you understand your legal rights – Help you evaluate legal landscape and potential liability – Help you assess an appropriate settlement range • Potential concern: – If the employer is represented by counsel, the Charging Party may be more likely to seek counsel as well (if he/she hasn’t already done so) • May increase cost of settlement June 06, 2014 50 SEGMENT 3: Marilyn Clark Partner Dorsey & Whitney
  • 51. If You Decide to Mediate: Come Prepared! • Prepare a pre-mediation statement • Prepare general overview explaining your position to the mediator • Know the relevant background • Bring relevant documents • Ensure individual with settlement authority attends (or is available to sign off on settlement) • Consider whether to ask accused employees or supervisors to attend June 06, 2014 51 SEGMENT 3: Marilyn Clark Partner Dorsey & Whitney
  • 52. If You Decide to Mediate: (Come Prepared, con’t) • Be prepared with an opening offer • Be prepared to identify all relevant settlement terms • Bring a draft settlement agreement • Plan to be available for the entire day! June 06, 2014 52 SEGMENT 3: Marilyn Clark Partner Dorsey & Whitney
  • 53. Agency Witness Interviews • If you decide against mediation (or if mediation fails), EEOC will begin investigatory process • EEOC gathers evidence in two primary ways: • Requests position / informational statements outlining the Company’s response to the charge of discrimination and providing supporting documents. • Requests “on-site” examination of the workplace, including face-to-face interviews with witnesses. June 06, 2014 53 SEGMENT 3: Marilyn Clark Partner Dorsey & Whitney
  • 54. Agency Witness Interviews • On-site investigations historically rare – Traditionally signaled complex case or heightened agency interest – Becoming more commonplace • Concerns: – Sense of relinquished control when investigating agency enters the workplace • Benefits: – Cooperation and live interaction may personalize the employer and allow for a more sympathetic view of the employer’s position June 06, 2014 54 SEGMENT 3: Marilyn Clark Partner Dorsey & Whitney
  • 55. Agency Witness Interviews Steps to Mitigate Concerns and Maximize Benefits: • Submit reasonable requests to agency regarding scope of interviews – Location – Duration – Sequence of witnesses • Prepare the workplace • Prepare the witnesses • Invite agency to interview additional witnesses if doing so will help tell your story • Send supplemental position statement to clarify information as needed June 06, 2014 55 SEGMENT 3: Marilyn Clark Partner Dorsey & Whitney
  • 56. Agency Witness Interviews Know Your Rights! • Counsel may be present for interviews with management employees – Protect A/C privilege – Take notes – Help clarify position, BUT beware of appearance attempting to alter testimony or control the process • Trend among EEOC investigators – asking managers to sign affidavits investigator prepares after the interview – Unclear whether agency may require managers to sign – Best to comply, BUT certainly may ask for time to review and correct any mistakes June 06, 2014 56 SEGMENT 3: Marilyn Clark Partner Dorsey & Whitney
  • 57. Federal vs. State Agencies • BE AWARE of key differences in claims covered: – Broad range of protected classes under state human-rights laws – Class actions may be filed with EEOC, but may not be an option at some state agencies – Small employers not covered under Title VII / ADA may be covered under state law – Many state laws allow for individual liability (aiding/abetting) June 06, 2014 57 SEGMENT 3: Marilyn Clark Partner Dorsey & Whitney
  • 58. Federal vs. State Agencies • BE AWARE of key differences in procedure: – May be different limitations periods • Federal: Charge generally must be filed within 180 days of last alleged wrongful act – Extends to 300 days where a state or local agency enforces law prohibiting same discrimination – Exception: ADA • State: Limitations periods may vary – May be different investigation deadlines • Federal: If longer than 180 days, may request right-to-sue notice • State: May be stricter deadlines June 06, 2014 58 SEGMENT 3: Marilyn Clark Partner Dorsey & Whitney
  • 59. Federal vs. State Agencies • BE AWARE of key differences in procedure (con’t): – May be different administrative-exhaustion requirements • Federal: Generally must file agency charge and receive right-to-sue letter before court action may proceed – Exception: Equal Pay Act • State: May not be exhaustion requirements in some states June 06, 2014 59 SEGMENT 3: Marilyn Clark Partner Dorsey & Whitney
  • 60. Federal vs. State Agencies BE AWARE of work-share agreements between the EEOC and state human-rights agencies • In many states, the EEOC has entered into a work-sharing agreement with the state fair employment practices agency. • In these states, if the Charging Party files a charge of discrimination with either the EEOC or the state agency, the charge will automatically be filed with the other agency. June 06, 2014 60 SEGMENT 3: Marilyn Clark Partner Dorsey & Whitney
  • 61. Contact Info: June 06, 2014 61 Louis C. Klein Of Counsel Foley & Mansfield lklein@foleymansfield.com 213-283-2100 Paul Kehoe Senior Counsel Seyfarth Shaw LLP phkehoe@seyfarth.com (202) 828-5375 Marilyn Clark Partner Dorsey & Whitney clark.marilyn@dorsey.com (612) 492-6885
  • 62. June 06, 2014 62 CLE PROCESSING The Knowledge Group offers complete CLE processing solutions for your webcasts and land events. This comprehensive service includes everything you need to offer CLE credit at your conference:  Complete end-to-end CLE credit Solutions  Setting up your marketing collateral properly.  Completing and filing all of the applications to the state bar.  Guidance on how to structure content meet course material requirements for the state Bars.  Sign up forms to be used to check & confirm attendance at your event.  Issuing official Certificates of Attendance for credit to attendees. Obtaining CLE credit varies from state to state and the rules can be complex. The Knowledge Group will help you navigate the complexities via complete cost effective CLE solutions for your conferences. Most CLE processing plans are just $499 plus filing fees and postage. To learn more email us at info@knowledgecongress.org or CALL 646-202-9344
  • 63. June 06, 2014 63 PRIVATE LABEL PROGRAM & INTERNAL TRAINING The Knowledge Group provides complete private label webcasts and in-house training solutions. Developing and executing webcasts can be a huge logistical nightmare. There are a lot of moving parts and devolving a program that is executed smoothly and cost effectively can prove to be a significant challenge for companies who do not produce events on a regular basis. Live events require a high level of proficiency in order to execute proficiently. Our producers will plan and develop your webcast for you and our webcast technicians will execute your live event with expert precision. We have produced over 1000 live webcasts. Put our vast expertise to work for you. Let us develop a professional webcast for your firm that will impress all your clients and internal stakeholders. Private Label Programs Include:  Complete Project Management  Topic Development  Recruitment of Speakers (Or you can use your own)  Marketing Material Design  PR Campaign  Marketing Campaign  Event Webpage Design  Slides: Design and Content Development  Speaker coordination: Arranging & Executing Calls, Coordinating Slides & Content  Attendee Registration  Complete LIVE Event Management for Speaker and Attendees including: o Technical Support o Event Moderator o Running the Live event (All Aspects) o Multiple Technical Back-ups & Redundancies to Ensure a Perfect Live Event o Webcast Recording (MP3 Audio & MP4 Video) o Post Webcast Performance Survey  CLE and CPE Processing Private Label Programs Start at just $999
  • 64. June 06, 2014 64 RESEARCH & BUSINESS PROCESS OUTSOURCING The Knowledge Group specializes in highly focused and intelligent market and topic research. Outsource your research projects and business processes to our team of experts. Normally we can run programs for less than 50% of what it would cost you to do it in-house. Here are some ideal uses for our services:  Market Research and Production o List Research (Prospects, Clients, Market Evaluation, Sales Lists, Surveys) o Design of Electronic Marketing Collateral o Executing Online Marketing Campaigns (Direct Email, PR Campaigns) o Website Design o Social Media  Analysis & Research o Research Companies & Produce Reports o Research for Cases o Specialized Research Projects  eSales (Electronic Inside Sales – Email and Online) o Sales Leads Development o eSales Campaigns  Inside Sales people will prospect for leased, contact them and coordinate with your sales team to follow up.  Our Inside eSales reps specialize in developing leads for big-ticket enterprise level products and services. o Electronic Database Building – Comprehensive service which includes development of sales leads, contacting clients, scoring leads, adding notes and transferring the entire data set to you for your internal sales reps.  eCustomer Service (Electronic Inside Sales – Email and Online) o Real-Time Customer Service for Your clients  Online Chat  Email o Follow-Up Customer Service  Responds to emails  Conducts Research  Replies Back to Your Customer Please note these are just a few ways our experts can help with your Business Process Outsourcing needs. If you have a project not specifically listed above please contact us to see if we can help.
  • 65. ► You may ask a question at anytime throughout the presentation today. Simply click on the question mark icon located on the floating tool bar on the bottom right side of your screen. Type your question in the box that appears and click send. ► Questions will be answered in the order they are received. Q&A: June 06, 2014 65 SEGMENT 1: Paul Kehoe Senior Counsel Seyfarth Shaw LLP SEGMENT 2: Louis C. Klein Of Counsel Foley & Mansfield SEGMENT 3: Marilyn Clark Partner Dorsey & Whitney
  • 66. June 06, 2014 66 Welcome to the Knowledge Group Unlimited Subscription Programs. We have Two Options Available for You: FREE UNLIMITED: This program is free of charge with no further costs or obligations. It includes:  Unlimited access to over 15,000 pages of course material from all Knowledge Group Webcasts.  Subscribers to this program can download any slides, white papers, or supplemental material covered during all live webcasts.  50% discount for purchase of all Live webcasts and downloaded recordings. PAID UNLIMITED: Our most comprehensive and cost-effective plan, for a one-time fee:  Access to all LIVE Webcasts (Normally $199 to $349 for each event without a subscription). Including: Bring-a-Friend – Invite a client or associate outside your firm to attend for FREE. Sign up for as many webcasts as you wish.  Access to all of Recorded/Archived Events & Course Material includes 1,500+ hours of audio material (Normally $299 for each event without a subscription).  Free CLE/CPE/CE Processing3 (Normally $49 Per Course without a subscription).  Access to over 15,000 pages of course material from Knowledge Group Webcasts.  Ability to invite a guest of your choice to attend any live webcast Free of charge. (Exclusive benefit only available for PAID UNLIMITED subscribers.)  6 Month Subscription is $299 with No Additional Fees. Other options are available.  Special Offer: Sign up today and add 2 of your colleagues to your plan for free. Check the “Triple Play” box on the sign- up sheet contained in the link below. https://gkc.memberclicks.net/index.php?option=com_mc&view=mc&mcid=form_157964
  • 67. June 06, 2014 67 Knowledge Group UNLIMITED PAID Subscription Programs Pricing: Individual Subscription Fees: (2 Options) Semi-Annual: $299 one-time fee for a 6 month subscription with unlimited access to all webcasts, recordings, and materials. Annual: $499 one-time fee for a 12 month unlimited subscription with unlimited access to all webcasts, recordings, and materials. Group plans are available. See the registration form for details. Best ways to sign up: 1. Fill out the sign up form attached to the post conference survey email. 2. Sign up online by clicking the link contained in the post conference survey email. 3. Click the link below or the one we just posted in the chat window to the right. https://gkc.memberclicks.net/index.php?option=com_mc&view=mc&mcid=form_157964 Discounts: Enroll today and you will be eligible for the “Triple Play” program and 3% off if you pay by credit card. Also we will waive the $49 CLE/CPE processing fee for today’s conference. See the form attached to the post conference survey email for details. Questions: Send an email to: info@knowledgecongress.org with “Unlimited” in the subject.
  • 68. June 06, 2014 68 ABOUT THE KNOWLEDGE GROUP, LLC. The Knowledge Group, LLC is an organization that produces live webcasts which examine regulatory changes and their impacts across a variety of industries. “We bring together the world's leading authorities and industry participants through informative two-hour webcasts to study the impact of changing regulations.” If you would like to be informed of other upcoming events, please click here. Disclaimer: The Knowledge Group, LLC is producing this event for information purposes only. We do not intend to provide or offer business advice. The contents of this event are based upon the opinions of our speakers. The Knowledge Congress does not warrant their accuracy and completeness. The statements made by them are based on their independent opinions and does not necessarily reflect that of The Knowledge Congress' views. In no event shall The Knowledge Congress be liable to any person or business entity for any special, direct, indirect, punitive, incidental or consequential damages as a result of any information gathered from this webcast. Certain images and/or photos on this page are the copyrighted property of 123RF Limited, their Contributors or Licensed Partners and are being used with permission under license. These images and/or photos may not be copied or downloaded without permission from 123RF Limited