In 2019, 72,675 Charges were filed with the Equal Employment Opportunity Commission (EEOC). Frequently, EEOC Charges are filed regardless of whether the claim has any merit. Since the EEOC has the authority to investigate regardless of whether there is reasonable cause to believe discrimination occurred, any EEOC Charge is going to cost an employer time, effort, and money to deal with it.
During the EEOC’s investigation, the employer and the Charging Party will be asked to provide information related to the Charge. The EEOC may ask an employer to: 1) submit a statement of position (the employer’s side of the story); 2) respond to a Request for Information (provide documents for review); 3) permit an on-site inspection/visit; and/or 4) provide contact information for or have employees available for witness interviews.
A well-written position statement and a proper response to a Request for Information may or may not prevent an on-site inspection request. Nowadays, it seems the EEOC no longer merely accepts an employer’s statement of position when investigating a Charge, and the EEOC is becoming more aggressive in its demands for on-site visits to interview witnesses and gather information, especially when there are multiple complaints at the same facility. These EEOC on-site investigations can be a burden to employers and even employees.
For employers who have considered challenging the EEOC’s governmental authority, the ruling in EEOC v. Nucor Steel Gallatin demonstrates how courts will likely enforce EEOC subpoenas to conduct such on-site inspections. EEOC v. Nucor Steel Gallatin Inc., 184 F. 561 Supp. 3d (E.D. Ky. 2016).
The Gallatin Case
An individual filed an EEOC Charge that Nucor Steel Gallatin Inc. unlawfully rescinded a job offer after discovering his record of disability. Gallatin offered to bring individuals the EEOC wanted to interview to the EEOC office or another offsite location, claiming that onsite interviews were not relevant, placed an unnecessary burden on the employer, and required a judicial warrant. The EEOC then directed Gallatin to permit an on-site inspection, after which Gallatin informed the EEOC that it would not consent to an on-site visit without a court order and/or valid warrant. The EEOC then petitioned the Court to order Gallatin to show cause why it should not be compelled to comply with the EEOC subpoena requiring Gallatin to permit on-site access “to conduct witness interviews, examine the facility, and obtain/request any additional information as it pertains to the Rolling Shift Manager positon.” Id. at 564.
Despite Gallatin’s arguments that, given the circumstances, an on-site inspection was irrelevant, the Court ordered enforcement of the EEOC’s subpoena and authorized the EEOC to conduct the on-site inspection. The Court did find that the EEOC’s subpoena was overbroad as it requested general permission to “examine the facility,” and it ordered that the EEOC’s investigator only inspect those areas of the facility that he or she reasonably believed to be “relevant to the charges filed.” Id.
The moral of the Gallatin story: employers should think carefully when considering opposing an EEOC on-site inspection.
Responding to an EEOC Subpoena
An employer who receives a subpoena for an on-site inspection must act quickly. After service of the subpoena, EEOC’s regulations give an employer five business days to submit a petition to revoke and/or modify the subpoena on the grounds that it seeks information that is not relevant to the Charge, is overly burdensome, or suffers from some other defect . 29 CFR § 1601.16. (Of note, the organization in Gallatin submitted a petition that the Commission ultimately denied. It was then instructed to permit an on-site inspection of its facility within ten days.)
Preparing for an On-Site Inspection
Conduct an Internal Investigation
The first step in preparing for an EEOC on-site inspection is to conduct a thorough internal investigation. An employer should identify the charging parties and all employees involved, including management personnel, human resources staff, and anyone with knowledge of the Charge. The organization should then notify those individuals of its receipt of the Charge and the fact that they are expected to cooperate with the investigation. All witnesses should be interviewed, assured of confidentiality, and notified of the anti-retaliation policy. Witnesses should be instructed not to discuss the Charge or the investigation with co-workers or anyone outside the company. Individuals should be reassured that they are not being disciplined and that their cooperation is important.
The internal investigation includes reviewing all relevant documents, including the Charging Party’s personnel file and the files of management and other individuals involved. With today’s use of cell phones and other technology to communicate with employees, it’s important to review texts, emails, and, in some circumstances, social media/messaging applications. It is also vital to ensure that any documents or data related to the Charge are preserved (in anticipation of possible litigation). During the internal investigation process, it is also important to review employment records to uncover any potential recordkeeping issues. Next, collect and review the employee handbook, relevant policies and procedures, disciplinary files, and any other information involving the Charging Parties.
Preparing employees for interviews is also crucial. Note that the EEOC is not required to identify witnesses it will interview prior to the on-site inspection. Thus, it is imperative to review relevant documents and position statements with the organization’s main employees prior to the on-site inspection. Human Resources should also be ready to describe the organization’s internal investigation, i.e., when they learned about the Charge and how they responded. All key employees should be prepared to answer questions.
During the interview process, be aware of potential conflicts. When the company and employee(s) have adverse interests, the employer’s legal counsel must advise employees of the counsel’s role in representing the company. This is particularly true with non-management employees. When an attorney interacts with an employee, the attorney must explain that he or she represents the company and is acting in the best interests of the company. It is recommended that an attorney also meet with company representatives to preserve attorney-client privilege.
Prepare the Facility
Preparing the facility for the on-site inspection is also vital. The EEOC’s tour of the facility is intended to give the investigator an understanding of operations and how an organization’s policies are applied. Plan the route that will be taken during the tour and conduct a walk-through with the individual who will guide the EEOC inspection. Make sure the representative who is leading the walk-through is knowledgeable about the organization’s policies and procedures and understands the Charge. Identify and remove any potential safety issues. Although a company representative will lead the tour, an attorney may also be present.
Finally, the EEOC investigator may prepare an affidavit for the witness to sign. Review the affidavit carefully and ensure it is accurate.
Even though on-site inspections by the EEOC are becoming more routine, on-site inspections should not be taken lightly. Being proactive could save an employer both time and money.