Friday, April 24, 2015

Dealing Effectively With Agency Investigations

Federal, state and local government agencies like the EEOC, Department of Labor, and their state and municipal counterparts are constants in the employment law landscape. Most employers will deal with an enforcement agency at some point, and usually it will be because an employee or ex-employee has filed a complaint alleging an unlawful employment practice.
We know that being the subject of a complaint is no fun and that the resulting agency investigation can cause a lot of heartburn.  We have found, over many years and many investigations, that there are ways to make the investigation process easier and ways to make it harder. We encourage you to opt for easier by keeping the following in mind.
  • Agencies are neither friend nor foe. Most government agencies that accept and investigate complaints of unlawful employment practices are neutral.  The agency’s job, at least at the investigative stage, is to conduct an impartial investigation of an employee’s allegations. Agencies may become advocates for an employee after an initial investigation produces some evidence of unlawful employer conduct, but that’s not how they begin.  In fact, impartiality is often a point of pride for agency investigators.  Clear evidence of agency neutrality can be found in statistics that show investigative outcomes.  In 2014, for example, the EEOC received 88,778 charges of discrimination in private sector employment and found “reasonable cause” to believe that the employer had discriminated in only 2,745 charges.  It’s a mistake to assume that an investigating agency is biased against your organization, and an even bigger mistake to deal with agency representatives as if they are the enemy.
  • Agencies have very limited resources.  Generally speaking, the agencies that investigate complaints of unlawful employment practices – whether at the federal, state, or local level – do so with limited funds and too few employees.  Their staffs may not be well paid or well trained.  Their information technology may be limited or antiquated.  They may have little or no discretion in choosing which complaints to investigate.  As a result, it can appear that the agency is engaging in willful delay or being deliberately unresponsive. Few resources may also result in poor investigative technique or poor analysis. Taxpayers, including employers, get what they pay for when it comes to the speed and quality of agency investigations, and it’s unproductive to get upset about the results.
  • Most investigations are not conducted by lawyers, and employer responses are not analyzed by lawyers.  Investigative agencies are looking for facts, not (usually) legal analysis.  Any legal analysis generally comes later, if and after the investigation produces evidence that an unlawful practice has occurred.  It can be a waste of time and resources for an employer’s initial response to a complaint to include a lot of case law and legal analysis.  If such a response appears to the investigator to be an attempt to avoid the facts, it can actually create a negative impression.  The most effective employer responses are fact-based and forego extensive legal argument.
  • Agencies really do have the power to make you respond.  The legislation that creates and empowers employment law enforcement agencies almost always includes some form of subpoena power, or some other mechanism that allows the agencies to force an employer to respond to a complaint.  Don’t spend time and energy fighting about this. Absent very unusual circumstances, you should cooperate with the investigative process and provide what you are asked to provide.
  • Most agencies have rules, regulations, or investigative policies you should check out.  Understanding an investigating agency’s process and regulations can be helpful in keeping your dealings with the agency productive.  If you are sent information along with a notification of a complaint, read it.  If the agency refers to its regulations in correspondence, look at the regulations and become at least generally familiar with what they say.
  • Don’t be afraid to talk to agency representatives.  Have a question about why an agency is asking for particular information?  Ask, in a non-combative way.  You may find, as you talk to the investigator, that there’s a better way to provide what the agency is looking for.  Have a concern that important, relevant facts are being overlooked?  Say so, and explain why, without a lot of editorializing.  Are you convinced that the investigator is out of line in some important way? Talk to his or her supervisor.  It won’t hurt your case, and it might help the process. Most of the time, agency representatives will respond appropriately to reasonable inquiries, reasonably presented.
Posted by Judy Langevin