Presenting a live 90-minute webinar with interactive Q&A EEOC Charge Conciliation: Navigating On-Site Investigations, EEOC Conferences, Settlement Negotiations MONDAY, DECEMBER 15, 2014 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Judith (Jude) Biggs, Partner, Holland & Hart , Boulder, Colo. Jill Vorobiev, Member, Dykema Gossett , Chicago The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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EEOC Charge Conciliation: Navigating On-Site Investigations, EEOC Conferences, Settlement Negotiations a Webinar by Strafford Publications, Inc. Monday, December 15, 2014 Jill Vorobiev Jude Biggs Dykema Holland & Hart LLP jvorobiev@dykema.com jbiggs@hollandhart.com 312-627-2536 303-473-2707
Preview • EEOC Background Facts • Charge Trends • Charge Categories/EEOC Priorities • First Steps in the Process • The Investigation • To Mediate or Not • Position Statements • On-site Investigations by the EEOC • Conciliation • Tips 5
EEOC Background Facts • EEOC • Created 1964 • “Independent” federal agency • To rid workplace of discrimination • Very broad powers and discretion • Develops guidance and regulations • Investigates claims • May prosecute certain claims • Enforcement varies under each administration • Very aggressive in recent years 6
EEOC Background Facts • EEOC enforces: • Title VII of the Civil Rights Act • Pregnancy Discrimination Act • Age Discrimination in Employment Act • Rehabilitation Act • Americans with Disabilities Act • Equal Pay Act • Genetic Information Nondiscrimination Act • But NOT Fair Labor Standards Act, Family and Medical Leave Act, ERISA, health and safety laws, breach of contract, tort claims 7
EEOC Charge Trends 1997 2013 Total Charges 80,680 93,727 Race 36.2% 35.3% Sex 30.7% 29.5% National Origin 8.3% 11.4% Religion 2.1% 4.0% Color 0.9% 3.4% Retaliation 22.6% 41.1% Age 19.6% 22.8% Disability 22.4% 27.7% Equal Pay 1.4% 1.1% 8
First Steps in the Process • May be co-filed with state anti-discrimination agency if work-share agreement in place • Statute of limitations – often 300 days; in some states, 365 days • EEOC assists individual to fill out charge • Often very general allegations but should state what event(s) or treatment constitutes the discrimination or retaliation 9
First Steps in the Process • “No action required” notice • Initial Review – Compare the last date of discrimination and date stamped on charge – Calculate statute of limitations immediately 10
First Steps in the Process • Letter of representation to EEOC • Litigation hold letter • Limit discussion of charge, protect confidentiality and privilege • Separate employees if necessary • Determine if employee is represented • Consider ways to mitigate damages – Offer reinstatement? – No adverse action/discipline without consultation 11
EEOC Categories of Charges – 3 Types “A” Charges • High priority (serious allegations, systemic or pattern/practice allegations, hot button issues- e.g., background checks, pregnancy discrimination, LGBT discrimination) • Generally no mediation (but can still ask) • Indicates EEOC may initiate lawsuit • Outside factors may influence designation • Employer is judged based on allegations 12
EEOC Categories of Charges – 3 Types “B” Charges (most) • May have some merit, but need investigation • Mediation is offered “C” Charges (occasional) • Immediately dismissed, as untimely, issue not in EEOC scope, or obviously no merit 13
The Investigation • Helps with decision whether to mediate • Steps: – Document gathering and review – Witness interviews, statements – Adapt strategy as you go • You must uncover good and bad facts • Evaluate risk • Look for the story/theme 14
To Mediate or Not Pro Con • Free • Takes time • More time to prepare • Mediators – no ability to position statement select • Opportunity for charging • Snowball effect with other party to be heard employees? • Early discovery – may learn you have a real issue • Save working relationship? • Save $ in long run • Confidential (somewhat) 15
Position Statements • Be accurate and use correct policies – Correct name of company – Accurate organizational chart – Policies in effect at time – Address each allegation – Identify untimely allegations – Tell story in a positive but not argumentative way – Deal with (narrow) comparators – Be brief and to the point – Incomplete or inaccurate information may trigger further inquiry • Inconsistencies later will be held against you • Cover defenses you expect to raise later • EEOC often gives information in position statement to charging party to rebut 16
EEOC On-Site Investigation • EEOC has right, more common than in the past • Provide comfortable area • Prepare witnesses, similar to a deposition (no volunteering) but keep tone friendly/helpful • Can ask about events, people not mentioned in charge • Attorney should be at interviews with managers/supervisors but not with non-supervisors (but prepare carefully) • At end, try to get feel for any concerns of investigator 17
Requests for Information/Subpoenas • RFIs – Short response time – Negotiate scope – Objections – Avoid unnecessary roadblocks • Subpoenas – Can be issued at any time – Petition to revoke – Court review 18
After the Investigation • EEOC issues its determination • Most often – “unable to conclude information established violation” = no probable cause • Issues 90-day right to sue letter • Calendar 93 days for deadline 19
Conciliation • If EEOC finds “probable cause” you can – Talk to EEOC lawyers – Request reconsideration/substantial weight review – But, neither reverses decision 20
Conciliation • Conciliation – required by statute – Investigator usually handles; acts as advocate for charging party – Like mediation but both charging party and “investigator” will likely have greater demands – Investigators often imply EEOC will take case and prosecute – Settlement will cost more than before – Likely to go to court 21
Conciliation • Evaluating EEOC settlement offer – Occasionally, can correct key fact – How are damages calculated? – Has charging party mitigated damages? – Strong continuing violation theory? – EEOC likely to take case? – Probable cause finding likely to be admitted at trial? – Risks and costs of trial? 22
Conciliation • May include non-monetary relief – Training (and report when done) – Monitoring and reporting – Posting – Reinstatement (or pay more) – Adopt policies – Consent decree 23
Conciliation • Employer may get important concessions – Resignation – NDA/non-solicit/non-compete – Promise not to re-apply (easier to get at pre- investigation mediation stage; EEOC view as retaliation) – Timing of payments – Tax considerations • Two settlement agreements, if reach agreement 24
Conciliation • May 2014, House Appropriations Committee expressed concern about EEOC lack of good faith conciliation efforts • Based on Title VII – if violation found, EEOC “shall endeavor to eliminate any . . . alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” and cannot file suit unless it was “unable to secure from the respondent a conciliation agreement acceptable to the commission.” 25
Conciliation • Recent cases challenge EEOC’s “good faith” efforts – Mach Mining Co. – pending with U.S. Supreme Court – CRST Van Expedited – 8 th Circuit 2012 – Bloomberg – S.D.N.Y 2013 26
Conciliation • Mach Mining (now pending with U.S. Supreme Court) – 7 th Circuit – held conciliation not subject to judicial review/not an affirmative defense – 2 nd , 5 th and 11 th Circuits – deep 3-part inquiry – 4 th , 6 th and 10 th Circuits – only require “genuine effort” 27
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