Employment Law Update

Michael Patrick O'Brien
April 25, 2005

The Equal Employment Opportunity Commission (EEOC) has issued its five tips for effectively working with the agency when discrimination and/or harassment charges are filed. Here they are:

1. Establish a good working relationship with the investigator. “One of the most important steps an employer can take to establish a good working relationship with the investigator is to communicate with the investigator,” writes the EEOC. “You may at any time during an investigation, contact the investigator with your questions and concerns. During an investigation, we also ask that you contact the investigator if you change legal representation or if you become aware there may be delays or other problems in responding to a request for information from our office. Your timely responses to EEOC will assist in moving the investigation along in a more expeditious manner.”

2. Submit a thorough statement of position. “If you are asked to submit a position statement, take advantage of this opportunity to tell your side of the story. Employers may wish to submit relevant evidence along with the position statement. For example, if the employer took action against a Charging Party based on a written company policy, the investigator will have to determine whether the policy has been applied consistently and if it is a non-discriminatory policy. Consequently, in such as case, it would be helpful to go ahead and provide a copy of the relevant policy, the date the policy became effective, and documentation showing other individuals were treated similarly to Charging Party.”

3. Be accurate. “It is to the employer’s advantage to provide the most accurate account of the facts as possible, even if the explanation paints the employer in an unfavorable light. Investigators make credibility determinations throughout investigations. If the employer’s account changes over the course of the investigation, even with respect to seemingly unimportant matters, this may affect the investigator’s assessment of the employer’s credibility.”

4. Think resolution. “Given the uncertainty, cost and animosity surrounding litigation, the Commission strongly encourages all parties to work towards resolution throughout the EEOC process. Mediation is generally offered to both charging parties and employers. While mediation is not appropriate in all cases, many employers find the Commission’s mediation program less expensive, time consuming, adversarial, and disruptive to the workplace. Mediation is voluntary, confidential and no judgments about the case are given. Another way to resolve a charge of discrimination is through settlement facilitated by the Investigator. After a finding of discrimination against the employer has been made, there is a final opportunity for both the employer and Charging Party to informally resolve the complaint known as conciliation.”

5. Take advantage of the Commission’s outreach resources. “EEOC’s outreach programs provide general information about the EEOC, its mission, employment discrimination laws enforced by EEOC and the charge/complaint process. EEOC representatives are available on a limited basis and at no cost, to make presentations and participate in meetings, conferences and seminars with employee and employer groups, professional associations, students, non-profit entities, community organizations and other members of the general public.”

Overtime Developments

A new report from a group called Business and Legal Reports Inc. (BLR) concludes that one in five employers has been audited by the United States Department of Labor (DOL) for alleged violations of the overtime pay provisions of the Fair Labor Standards Act (FLSA). DOL audits typically occur when a current or former employee complains to DOL about an employer’s practices. BLR recommends that employers do their own regular FLSA audits, rather than waiting for DOL to come calling. Speaking of overtime, a recent national SHRM article says that the net effect of new overtime exemption regulations (put in place six months ago) has been to increase, not decrease, the number of employees receiving overtime pay.

Law Firms Often Lag Behind

Ever heard the phrase, “Physician, heal thyself?” The legal parallel may be “lawyer, follow thine own advice.” Unfortunately, it is sometimes the case that law firms lag behind their own clients in complying with employment laws. A recent publication by the Legal Resource Group notes the following challenges for law firm HR professionals: “high numbers of females in a single working class (secretaries); a large swing in compensation from the highest-paid partners (predominantly white males) to the lowest-paid clerical workers (frequently black and Hispanic females); under-representation of blacks and Hispanics in skilled and highly compensated positions; historically poor and inaccurate employee evaluation systems; high levels of voluntary and involuntary attrition; and a highly stressed atmosphere.” Here’s an interesting quote from the publication:

“One of the most common complaints we heard from administrators is that they are the cobbler’s children when it comes to getting solid advice from the firms’ employment lawyers. As one administrator told us, ‘they can’t envision their partners doing the kind of stuff they run into in client’s businesses.’ The result is that many law firm supervisors have not participated in the basic discrimination training that their lawyers routinely do for clients. An HR director put it more succinctly: ‘Representing the firm is non-billable time so there is no incentive to be concerned until we have a big claim.’”

I just knew that reading this would make all of you (except perhaps our firm’s HR person) feel better about your HR jobs!

The Employment Law Update is a legal and legislative update service sent out about twice a month to various members of the Utah League of Credit Unions HR Council. The author, Utah law attorney Michael Patrick O'Brien, is also the Legal and Legislative Director for Utah SHRM (Society for Human Resource Management). Contact him at 801-534-7315 or mobrien@joneswaldo.com. Reprinted with permission.