the equal employment opportunity commission: understanding and responding to eeoc charges live...

Speaker Firms and Organization:

Seyfarth Shaw LLPPaul Kehoe

Senior Counsel

Foley & MansfieldLouis C. Klein

Of Counsel

Dorsey & WhitneyMarilyn Clark

Partner

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mailto:[email protected]

Partner Firms:

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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.

http://www.foleymansfield.com/

Partner Firms:

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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.

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.

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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.

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.

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► 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/

http://theknowledgegroup.org/event_name/the-equal-employment-opportunity-commission-understanding-and-responding-to-eeoc-charges-live-webcast/



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

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Featured Speakers:

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SEGMENT 1:

Paul KehoeSenior Counsel Seyfarth Shaw LLP

SEGMENT 2:

Louis C. Klein Of Counsel Foley & Mansfield

SEGMENT 3:

Marilyn Clark Partner Dorsey & Whitney

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.

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SEGMENT 1:


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

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SEGMENT 1:


Charge Statistics

• FY 2009 – 93,277 (received); 85,980 (resolved); 85,768 (backlog)





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SEGMENT 1:


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

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SEGMENT 1:


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

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SEGMENT 1:


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.

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SEGMENT 1:


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

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SEGMENT 1:


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

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SEGMENT 1:


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

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SEGMENT 1:


EEOC Performance in 2013

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SEGMENT 1:


EEOC Cases Filed by District FY 2013

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SEGMENT 1:


Interpreting an EEOC Charge

• Charge Classification – A, B, C

• Systemic Target?

• Class or policy allegations?

• Priority Area?

• Subject of a recent guidance document?

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SEGMENT 1:


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)

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SEGMENT 1:


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

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SEGMENT 2:


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

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SEGMENT 2:


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

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SEGMENT 2:



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

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SEGMENT 2:



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

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SEGMENT 2:



Create Investigation Plan Interviews

Complaining Employee Alleged Wrongdoer Witnesses

Documents Report Determination Action

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SEGMENT 2:



Consider nature of complaint: Sexual harassment, discrimination, hiring practices, disability Consider appropriateness of administrative leave or temporary transfer of assignments

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SEGMENT 2:



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

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SEGMENT 2:



Mediation Assess whether it is in Employer’s best interest to pursue mediation or settlement of EEOC

Charge Continue with investigation

June 06, 2014

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SEGMENT 2:


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

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SEGMENT 2:



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

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SEGMENT 2:



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

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SEGMENT 2:



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

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SEGMENT 2:



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

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SEGMENT 2:



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

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SEGMENT 2:



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

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SEGMENT 2:



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

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SEGMENT 2:


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

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SEGMENT 2:


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

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SEGMENT 2:


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

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SEGMENT 2:


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

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SEGMENT 2:


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

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SEGMENT 3:


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

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SEGMENT 3:



• 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

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SEGMENT 3:



• 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

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SEGMENT 3:


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

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SEGMENT 3:



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

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SEGMENT 3:



(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

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SEGMENT 3:


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

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SEGMENT 3:



• 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

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SEGMENT 3:



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

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SEGMENT 3:



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

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SEGMENT 3:


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

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SEGMENT 3:



• 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

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SEGMENT 3:



• 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

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SEGMENT 3:



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

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SEGMENT 3:


Contact Info:

June 06, 2014

61

Louis C. Klein Of Counsel Foley & Mansfield [email protected]

Paul Kehoe Senior Counsel Seyfarth Shaw LLP [email protected](202) 828-5375

Marilyn Clark Partner Dorsey & Whitney [email protected](612) 492-6885




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Q&A:

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SEGMENT 1:


SEGMENT 2:


SEGMENT 3:


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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.




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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: [email protected] with “Unlimited” in the subject.




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ABOUT THE KNOWLEDGE GROUP, LLC.

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