(HR) Effective Responses to EEOC Charges - Make a good first impression.

Getting a charge from the U.S. Equal Employment Opportunity Commission (EEOC) isn’t the way most HR professionals want to start the day. The number of disability discrimination and retaliation charges has been on the rise, and charges based on age, gender and national origin discrimination also have increased. No matter what the allegation is, every company should respond promptly, thoroughly and effectively to an EEOC charge.

First Steps

First impressions can be lasting. Make sure you don’t ignore a charge. In addition, preserve relevant documents, keep information about the charge confidential and notify your insurer.

Never ignore the charge. While a charge does not mean that the EEOC has determined your company or an employee engaged in discrimination, it does mean that there is some basis for an investigator to look into it.

Review all EEOC paperwork and make note of deadlines. If needed, request additional time as soon as possible. The investigator likely will ask you to submit a statement of position that allows you to tell the company’s side of the story. You also may be asked to respond to a Request for Information (RFI) that could require you to supply copies of policies, personnel files and other relevant information.

Preserve relevant documents. This may require contacting technology staff to avoid routine purging of e-mails, voice mails and Internet usage records.

Guard against retaliation. If the charging party is still employed, ensure that no retaliatory action is taken. Remind managers, supervisors and anyone else involved with the allegation about the company’s anti-retaliation policy.

Keep it confidential. Information about the charge should be shared on a strict need-to-know basis. Instruct key personnel that they should discuss the matter only with you or the person coordinating the response.

Consider whether you or an attorney who specializes in employment matters should respond to the EEOC.

Notify your insurer. Policies often require prompt notice of claims, and charges involving discrimination are often included in claims. Failing to inform your insurer could lead to a denial of coverage.

Internal Investigation

Before you can respond to the EEOC, you need to figure out exactly what happened. Having an experienced employment law attorney conduct or supervise an internal investigation can be helpful. The attorney can ensure that relevant facts are gathered, appropriate documents are reviewed and proper recommendations are made.

If an attorney conducts the investigation, be sure to discuss which materials and discussions may be treated as confidential or privileged. An early and thorough evaluation is important to gauge potential liability exposure and help avoid surprises if the matter goes to litigation. It also gives you the opportunity to consider the value of early mediation.

The investigation should entail thorough interviews with all relevant witnesses, including managers, supervisors, decision-makers, similarly situated employees and HR staff. The interview is a good time to ask those involved to refrain from discussing the charge or the investigation with co-workers or anyone outside the company, in order to maintain the integrity of the investigation. However, don’t prohibit your employees from discussing the investigation or issue a threat of potential disciplinary action, as this practice has recently been subject to increased scrutiny by the EEOC due to its potential "chilling effect" on an employee’s right to complain about discrimination.

During the investigation, you will also want to review all relevant documents—not just the charging party’s personnel file but also the files of supervisors and others involved. If applicable, you may need to review the employee’s medical file. Be sure to go over the relevant policies and procedures and gather all signed acknowledgment forms. Finally, collect any grievance files, internal complaints and information about other investigations involving the charging party.

Position Statement

A well-drafted position statement with evidence, documentation and witness statements will help accelerate the investigation and could limit requests for additional information. Make the EEOC investigator’s job as easy as possible by providing a clear, concise and complete response.

Keep in mind that your response could be shared with others. Some EEOC investigators will forward a copy of the position statement to the employee or the employee’s attorney, and EEOC attorneys may also review the file. If the investigation leads to litigation, your position statement could be used as evidence.

Start strong with an introductory paragraph that denies any discrimination or retaliation and provides a brief summary of the company’s position. Example: "This letter responds to the charge of discrimination filed on (date) by (name of charging party), in which the charging party alleges (he or she) was discharged because of (sex, race, age, religion, etc.). The company strongly denies the charge and maintains that there is no evidence to support the allegations. As explained in more detail below, the charging party was discharged because of (stealing, excessive tardiness, absenteeism, etc.)."

Next, explain your company’s business. The EEOC investigator probably knows little or nothing about your business, and some background will set the stage for your explanation of any action taken. For example, if the company provides a courier service where delivery is expected on certain days and times, and a driver was fired for excessive absenteeism or tardiness, the background information will provide context as the investigation moves forward.

Spell out your company’s EEO policies and procedures. This demonstrates your commitment to a workplace free of harassment and discrimination. Explain how your company stresses the importance of following the policies and how the information is distributed to employees. Provide a copy of the acknowledgment form signed by the charging party. With harassment claims, this is especially helpful if the charging party failed to follow internal company procedures for reporting harassing behavior. Rather than simply stating that you are attaching the policies to the position statement, describe the relevant sections clearly and concisely so that the investigator does not have to spend time poring over lengthy exhibits.

Explain the charging party’s employment history, including all facts that are relevant to your defense of the charge. Doing so in chronological order is generally the clearest way. Remember, if you are attaching a job description and responsibilities, also describe them succinctly in the position statement so the investigator is not required to sort through paperwork to find the relevant information. Explain the reasons for the company’s actions by addressing each allegation and leaving no unanswered questions. Address any "bad facts" with the best explanation you have, but be careful not to exaggerate or stretch the truth. You may want to include attendance records, e-mails and reports that support your explanation. Again, you want to be thorough and make the investigator’s job as easy as possible, which could limit requests for more information.

The position statement is also where you should provide evidence of consistent past decisions that demonstrate nondiscrimination. To disprove a charge of discrimination, explain why similarly situated employees were or were not treated the same way as the charging party. You may want to include demographics of the company’s workforce, as well. If an employee is complaining of racial discrimination, be sure to point out that workers of another race were treated in a similar way. Or, if an employee complains she was terminated for taking maternity leave, you will want to include information about other employees who have taken maternity leave and returned to work.

If you are working with an attorney, he or she may suggest including other possible legal defenses to the charge, such as the "same actor" defense or the "after-acquired evidence" defense.

Remember that EEOC investigators are generally not attorneys. While they will pay some attention to legal citations that you or your attorney include in the position statement, it is likely that they will be more receptive to references to the EEOC Compliance Manual as additional guidance.

Finally, wrap up your position statement with a firmly stated conclusion that the charging party’s claim is not valid and that the company acted fairly. Request that the charge be dismissed. Carefully review what you have compiled for accuracy and completeness. Remove all technical jargon unless it is clearly explained in plain language.

Always use respectful language when referring to the charging party. Do not include anything in the position statement that you would not want quoted at a trial. Before sending the position statement to the EEOC, have key managers involved with the events review it. Then take a fresh look at it after any revisions are made. Ask yourself if a neighbor, friend or potential juror would find the response persuasive and thorough.

Charge Trends Over the past decade, changes in the number of EEOC charges filed have varied based on the type of charge:

    Race and gender charges have remained about the same.

    Disability, age, religion and national origin charges have risen.

    Retaliation charges have had the biggest increase.

Respond to the RFI

The RFI may ask you to submit copies of personnel policies, files and other relevant information. If you think the RFI is too broad, talk to the EEOC investigator about narrowing the scope of the request. Be nice, but remain firm on important points. Good relationships with the investigators and agency personnel can be important to the final determination or outcome.

If the EEOC asks for information and you don’t provide it, the agency can (and likely will) subpoena it. You can challenge the scope of a subpoena, but the EEOC will likely prevail if the information it seeks is relevant to the investigation. However, an investigator will usually be willing to narrow the scope of an information request if you contact him or her in a timely manner and explain your position in a polite and reasonable way. Also remember that it may be appropriate to simply include the requested information in the position statement.

Mediation

At the start of an investigation, the EEOC investigator will let you know whether the charge is eligible for mediation at no charge. You can also call the investigator and ask about the early-mediation option. Mediation is entirely voluntary, and both parties must agree to participate. Early mediation can provide a faster and cheaper resolution by avoiding a lengthy investigation and possible costly litigation.

Mediators are neutral third parties and are bound by confidentiality rules; they are not allowed to provide information about mediation discussions to the investigators.

Mediation is an informal resolution process, not a fact-finding mission. It is usually completed in one session that lasts from one to five hours. An advantage of mediation is that you can retain some control over the outcome, including obtaining a global release of all potential claims against your company. If mediation leads to an agreement, the EEOC will close the file. If it does not lead to an agreement, the charge will be sent back to the investigator for investigation. However, you will not be required to provide a position statement until the mediation process is over.

Settlements can occur at any time during the investigation, and they generally involve no admission of liability. If the parties, including the EEOC, reach a voluntary agreement, the charge will be dismissed. You may want to consider attempting an early settlement if the charge falls under any of the EEOC’s hot-button topics. Currently, these include employment screening based on arrest or conviction records, credit history, or unemployment status (due to the potential disparate impact that these types of screening could have on minority groups). Other enforcement priorities are equal pay; harassment claims; caregiver and pregnancy discrimination; and "systemic bias" cases in which the alleged discrimination has a broad impact on an industry, profession, company or geographic area.

Tick, Tock

According to the EEOC, it takes 182 days on average to investigate a charge. Delays in responding to agency requests can extend this time. Once an investigator contacts you for information, make every effort to respond promptly, accurately and thoroughly. Being helpful, responsive and professional from the start can make all the difference in the final outcome.

Melanie Pate and Mary Ellen Simonson are partners at Lewis and Roca LLP in Phoenix. They can be reached at MPate@LRLaw.com and MSimonson@LRLaw.com.

Source: SHRM

(HR) Ringing in 2014: It’s time to take a look at your policies and employee handbook

The turn of the year is often a good time to review company policies. We’re weighing in with some favorite perennial professional resolutions and perhaps a few new suggestions that might make for a happy 2014.

What’s in a policy?:

In the employment world, issues involving e-mail, the Internet, and social media are changing dramatically. For a long time, we suggested that employers develop a policy that set standards for appropriate e-mail communications and Internet use, particularly to prevent e-mails from becoming a fertile source of evidence for claims of wrongful termination, discrimination, and harassment and to protect your company’s confidential information.

Social media polices. In recent years, we’ve seen what we thought were reasonable expectations and standards for appropriate e-mail, Internet, and social media postings (e.g., prohibitions on disparaging, inappropriate, demeaning, or unprofessional statements or on the disclosure of confidential information like wages and other employment-related information) run afoul of the National Labor Relations Board’s (NLRB) views on employer policies that impermissibly chill, or dissuade, employees from communicating or exercising their rights to engage in protected concerted activity.

To start the new year, take another close look at your e-mail and social media policies. Does your policy provide specific guidance so employees will know what they can and cannot do and you don’t unintentionally chill their rights to engage in protected concerted activity? Are the prohibitions appropriate, or do they infringe on communications the NLRB considers protected concerted activity?

While you’re at it, what else is in your handbook?:

Beyond social media policies. It is not only a good idea to review policies that are currently the subject of scrutiny―such as social media policies and employment- at-will statements―but it’s also a prudent measure to review all the policies in your handbook on a regular basis. When was the last time you reviewed your handbook and read your policies with a critical eye? Are your policies up to date? Are they still working well for you? Has your company changed size, and do you have different legal obligations as a result? An annual review is still recommended, and you might schedule it for the beginning of each calendar year.

Recent NLRB guidance has given us a reason to look beyond social media policies and examine many other standard policies to see whether they unduly restrict employees’ rights to engage in protected concerted activity. Does your handbook’s employment-at-will policy provide for the possibility that someone in your organization can sign an agreement that recognizes a union or a labor contract, establishes a term of employment, or modifies the employment-at-will standard?

Code of conduct. Would your code of conduct policy pass NLRB muster? The Board has shown concern that provisions prohibiting employees from engaging in activity that might “raise questions as to the company’s honesty, impartiality, reputation or otherwise cause embarrassment” or “create a conflict of interest for [employees] or the company” and a provision requiring employees to “follow all restrictions on use and disclosure of information” might impermissibly chill their rights to discuss the terms and conditions of their employment.

Internal investigations. Do you have a blanket prohibition on employees discussing investigations during the course of an inquiry? The NLRB also has expressed concerns about such policies. Finally, you should make sure your dress code, confidentiality, and nondisparagement policies aren’t too far-reaching in their restrictions.

FLSA safe harbor. Exemptions from the Fair Labor Standards Act’s (FLSA) overtime requirements for executive, administrative, and professional employees can be destroyed if you make improper deductions from their pay (i.e., deductions inconsistent with them being paid on a salaried basis). However, there’s a “safe harbor” for employers that mistakenly make improper deductions if you (1) have a “clearly communicated” policy prohibiting improper deductions, including a complaint mechanism, (2) reimburse employees for any improper deductions, and (3) make a good-faith commitment to comply in the future. An FLSA safe-harbor policy should be included in your employment handbook.

FMLA leave. If you haven’t reviewed your Family and Medical Leave Act (FMLA) policy in a while, you’ll need to make sure it covers recent changes in the law allowing new military-related leave. Your policy should include provisions addressing military caregiver leave and qualifying exigency leave.

Harassment and discrimination. All employers need to include an antiharassment and discrimination policy in their handbooks. Older antiharassment policies often prohibit only sexual harassment. Your policy should cover harassment based on sex, race, national origin, disability, age, religion, and any other protected category under federal or state law. Also, “genetic information” is now a federally protected category, so you should ensure your policies address discrimination based on genetic information.

Arbitration agreements. Arbitration agreements should be binding contracts, so they must be separate from employment handbooks. Nevertheless, it’s a good idea to review your arbitration agreements when you’re updating your employment handbook. Recently, the NLRB ruled that it’s an unfair labor practice to require employees to arbitrate class action claims. The ruling hasn’t been tested by the courts yet, but if you have an arbitration agreement that includes class claims, consider revising it.

Computer, Internet, and e-mail usage. With the prevalence of technology in the workplace, it is a good idea to consider whether you should have policies addressing employees’ use of technology.

If you’ve been meaning to review and update your handbook, the beginning of the new year could be a great time to read your policies with a critical eye.

What about job descriptions?:

It may be too big a task to review and update all your job descriptions at once, so you often hear that employers update job descriptions when they’re hiring for a particular position. The downside of that approach is that current and accurate job descriptions can be helpful even when you haven’t had any turnover.

Think of the last time you looked at the “essential functions” of a job while considering an accommodation request or another issue involving the Americans with Disabilities Act (ADA) when there had been no reason to look at the job description for a few years. Perhaps 2014 is a good time to schedule a systematic review and update all your job descriptions over the course of the year.

What would you like them to know?:

Yes, we’re talking about supervisor training. Is there any training that could make HR management at your company easier in 2014? For example, would training your managers on the company’s expectations about the issues and decisions that should be discussed with HR before an adverse action is taken help you address issues proactively and avoid risky situations later? Would training on the importance of timely, accurate, and well-prepared performance documentation reduce management frustration and the number of times you can’t address performance concerns the way you might like to because you don’t have the documentation to support your actions?

If you answered yes―or even maybe―to those questions, why not come up with a list of topics you wish your supervisors knew more about and put together a training schedule for 2014? And then, while you’re at it, come up with a list of things you would like to know more about and see what you can do to further your own personal training.

Bottom line:

We wish you luck and success with your New Year’s resolutions. Be sure to call your employment law attorney if you have questions about any of the issues mentioned in this article. As always, we wish you a happy, safe, and prosperous 2014.

Jeanine Poole is an attorney with Sulloway & Hollis in Concord, New Hampshire. She may be contacted at jpoole@sulloway.com

Source: HR Hero Line

(OSHA) OSHA compliance planning calendar

Occupational Safety and Health Administration (OSHA) regulations and standards include numerous training, posting, or other compliance actions that are required annually or at other regular intervals. There are a number of issues you should consider for your compliance planning calendars, including:

• A facility with employees who have occupational exposure to blood or potentially infectious materials must have an exposure control plan that is reviewed and updated at least annually. This is required by OSHA standard 29 CFR § 1910.1030.

• Employers must inform employees upon their initial hire and at least annually about the existence of and their right to access their medical exposure records. This includes the name of the person maintaining the records and their location. The relevant standard is 29 CFR § 1910.1020(g)(1).
• Powered industrial truck operators (e.g., forklift drivers) must have their performance evaluated at least every three years as required by 29 CFR § 1910.178(l)(4)(ii).
• Employees exposed to an eight-hour time-weighted average noise level at or above 85 decibels must have a new audiogram at least annually under 29 CFR § 1910.95(g)(6).
• OSHA’s permit-required confined space standard mandates that the program be reviewed using canceled entry permits within one year of each entry. A single annual review using all entries during that time may also be performed. The relevant standard for this requirement is 29 CFR § 1910.146(d)(14).
• Under the hazardous energy control standard (29 CFR § 1910.147(c) (6)), lockout/tagout procedures must be reviewed at least annually, and the review must be certified.
• Recordable injury and illness cases must be entered on the facility’s log within seven days of receipt of information on the case. The calendar summary must be posted annually from February 1 through April 30.
• Effective training must be provided annually to employees who are required to use respirators.
• Employers using products subject to OSHA’s substance-specific health standards should be aware of their requirements for periodic monitoring and training.

Since these periodic requirements take time (reviewing and updating programs) and money (training and testing), we encourage employers to develop an annual OSHA calendar―so that you can budget both the time and the money to keep compliant.

John E. Hall is the OSHA consultant for Lehr Middlebrooks & Vreeland, P.C. Before working with the firm, he was the OSHA area director and worked for 29 years with the agency in training and compliance programs, investigations, enforcement actions, and setting OSHA priorities. He may be contacted at jhall@lehrmiddlebrooks.com .

About: Alabama Employment Law Letter:

Excerpted from Alabama Employment Law Letter, and written by attorneys at the law firm of Lehr Middlebrooks & Vreeland, P.C. The Alabama State Bar requires the following disclosure: "No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers." Contact the attorneys at Lehr Middlebrooks & Vreeland, P.C.

Source: HR Hero Line

(LABOR) Operating Engineers rejoin Building Trades Department

WASHINGTON, D.C.  (PAI Union News Service) — After nearly eight years since leaving, the International Union of Operating Engineers rejoined the AFL-CIO Building and Construction Trades Department on Jan. 1.

“Raising our collective voice and acting with common purpose through this affiliation will benefit not only IUOE members, but all union construction tradesmen and women,” said Operating Engineers international  President James Callahan. “We look forward to working with (BCTD) to create opportunities for construction workers and to provide a reliable and highly skilled workforce for contractors and owners. The construction industry and its workforce endured significant losses in the recent recession, but by working together as North America’s building trades unions, we can achieve a brighter and more prosperous future for our members.”

Building Trades Department President Sean McGarvey called the reaffiliation “a great day” for the construction industry in North America in general, and the union construction industry in particular.

“With the Operating Engineers as a formal partner, we will better serve the needs of our clients, our customers, our contractors and, most importantly, the members we represent,” he said.

The Operating Engineers has approximately 400,000 members in 123 local unions throughout the United States and Canada, including Local 701 in Gladstone, Oregon, and Washington Locals 286 in Auburn, 302 in Bothell, 280 in Richland, 370 in Spokane, and 612 in Tacoma.

It is the 10th largest union in the AFL-CIO.

With the addition of the Operating Engineers, the Building and Construction Trades Department now consists of 14 national and international unions that collectively represent nearly 3 million construction workers in the United States and Canada.

Source: nwLaborPress.org