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/
The Equal Employment Opportunity Commission: Understanding and Responding to EEOC Charges LIVE Webcast
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
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
Editor's Notes
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