The EEOC Is Coming! The EEOC Is Coming! Big Changes To Investigation Strategy Coming From EEOC’s Indianapolis District Office
Background – What is EEOC and What Do They Do At A 30,000 Foot Level?
The U.S. Equal Employment Opportunity Commission (EEOC) is the primary federal agency tasked with enforcing laws against employment discrimination. In most cases, someone who wants to sue a current, former, or would-be employer first must file a charge with EEOC and pursue that charge through their administrative investigation process before they can file suit in court. EEOC can also investigate employers for suspected unlawful practices even in the absence of an individual charge. Whether an investigation is initiated by an individual charge or not, EEOC itself can sue if it concludes after investigation that the employer has done something wrong.
Nationwide, the EEOC is divided into 15 districts, all of which follow numerous shared guidelines and regulations originating from “headquarters” in Washington D.C. Across the country, in virtually every case, employers are notified when a charge is filed against them and given a certain amount of time to submit a position statement explaining their defenses (EEOC offers mediation in most cases too, though that’s beyond the scope of this article). In some cases, EEOC requires information beyond the position statement from a responding employer, and they ask for it through formal written Requests for Information (RFIs), witness interviews, onsite inspections, or – where those other methods fail – subpoenas. EEOC investigators are trained to hunt for evidence of discrimination and retaliation specific to the allegations in each charge and also evidence of other/unrelated violations of federal employment laws that may show up in the course of examining an individual claim (for example, failure to post required workplace notices, maintaining unlawful medical leave policies, improper background check processes, etc.).
Background – How Does The EEOC Work In Indiana?
Even though EEOC does basically the same thing across the country, there are variations in investigation strategy and procedures from district to district. All Hoosier employers fall under EEOC’s Indianapolis District, which covers not only Indiana but also Michigan, Kentucky and Western Ohio. The Indianapolis District generally is known for being thorough in its investigations, but it has not been known historically as a particularly aggressive district. That does not mean that they’re inactive or “slouching” – they receive and process a huge number of charges every year. What it means is that they haven’t insisted on rushing anyone through the process and they don’t regularly look to surprise employers who are under investigation. For instance, responding employers could generally count on receiving, say, a 30-day extension to submit their position statement as a matter of course, and maybe even another week or few beyond that if needed. Each investigator had substantial discretion (or at least input) into those deadlines, and, as a group, they have long been more than willing to give routine “breathers” in recognition of the fact that employers, their counsel, and EEOC itself all have heavy workloads to process. As another example, and put bluntly, Indianapolis District investigators hardly ever require anything beyond a well-written position statement from respondents. RFIs, on-site visits/inspections, and witness interviews (and especially subpoenas) have been used rarely, and usually only in cases where the employer makes a particular show of being uncooperative or resistant to the process. And even then, the investigator typically contacts the employer (or the employer’s attorney) to request documents or schedule interviews well before the investigator even thinks about visiting the employer for an on-site.
So What’s Changing?
I recently worked with one of the Indianapolis District’s supervisors to put on a continuing legal education seminar, and through that work learned that the Indianapolis District will be shaking things up dramatically in the next several weeks (I also confirmed it was okay for me to publicize the changes before I wrote this!). First: investigators will only have discretion to grant a single two-week extension of the originally-assigned position statement deadline (which is typically 30 days from the notice of charge). Any request for extension exceeding that can only be granted by the investigator’s supervisor, and it’s safe to assume they don’t intend to grant many of them. Second: if the position statement is not received by the original (or once-extended) deadline, the investigator’s next step will be to show up at the employer’s facility in person and unannounced to deliver RFIs and request on-the-spot interviews and inspections. I’m told EEOC intends to proceed with these unannounced direct visits even where the employer is represented by counsel. Interestingly, these plans appear to contradict EEOC’s own internal requirements for dealing with represented respondents as set forth in its Compliance Manual (see Section 82), but – since the investigators are not themselves attorneys – they don’t appear to be a violation of the professional conduct rules governing lawyers. Regardless, with no clearly defined avenue to petition EEOC to change its plans, employers throughout the Indianapolis District are wise to prepare themselves right away.
What Should Employers (And Their Counsel) Be Doing To Prepare For This?
Based on the information available so far, the surest way to avoid an unscheduled visit from an EEOC investigator in the course of defending a charge is simple: get your position statements in on time, and don’t count on extensions beyond the two-week cut-off that individual investigators will be authorized to grant on their own. And if you’re working with counsel to respond to a charge (which you probably should be), make sure they know of these new standards and make sure they are planning their workloads accordingly. Many internal investigations and position statements can be completed in 30-44 days, but for many that will be a stretch, and gone are the days where the defense bar can rest comfortably after sending a short letter asking for an additional week or two.
Relatedly, it’s critical that employers have a system in place for promptly forwarding charge notices to whoever in the organization is responsible for coordinating the response. All too often, a company’s mailroom misroutes a charge or the receptionist who regularly distributes mail is out on vacation when a charge comes in and the employer loses valuable days of response time while the charge bounces around or sits somewhere “in the system.” Make sure anyone with hard-copy or electronic intake responsibilities knows how to route and escalate communications from any government agency, and have back-ups or fail-safes in place for when those people are absent.
And while you’re at it, develop a plan and train your people now on how to respond if the above preventative measures fail. Despite everyone’s best efforts, a position statement might not get done on time, or an investigator may show up even when no deadlines have been missed, motivated by the Indianapolis District’s clear general desire to get them into the field more often. Does your receptionist or anyone else who typically works near your entrance(s) know how to react when someone walks into your business and identifies themselves as a federal investigator wanting answers, access, documents, or other information? Do they know which manager to call (and how to interact with the investigator while waiting on that manager), and do your manager(s) know what to do next? There are plenty of different and good approaches, but an uncoordinated and unprepared one is – more than likely – going to be a bad one. Most of the time, you don’t want to be overly defensive (souring the tone for the rest of the investigation), but you also don’t want to unthinkingly disclose more than you should. Work with your people (and your lawyers) proactively to ensure you can strike the right balance and – as needed – politely redirect or reschedule an unscheduled investigator.
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