We’ve talked here multiple times about the EEOC charge process and how a employers should handle the process. Employers have to keep their eye on the ultimate goal – an EEOC Form 161 Right to Sue letter. Of course the EEOC will ask the employer for a position statement and certain documents, but what if the EEOC requests a site inspection? Can it do so? Yes it can. So what can the employer and its lawyer do to prepare?
- Define the Scope of the Site Inspection – What does the EEOC Investigator want? This needs to be agreed to before the investigator arrives for the interview.
- Document Review – They may want to review employee files, employee manuals, policies etc. See #1. Agree what is going to be provided, review it, and have it ready for inspection.
- Employee Interviews – Yes, the EEOC can interview employees. If they are management employees an attorney or company representative is entitled to sit in the interview. If they are non-management, the EEOC (at least according to it) is entitled to interview them without a lawyer or representative. (That should scare anyone.) See #1. Agree on who is going to be interviewed and who is management versus non-management. Obviously, the less individuals that are interviewed the better. See if you can work with the EEOC to make sure you are providing someone that can actually provide responsive information. This could limit the number of folks they interview.
- Preparation – Management – Treat the interviews like depositions. Prepare the witness thoroughly on expected topics, how to answer questions, how to be responsive. If there are certain key documents review them with the witness. In the interview where counsel is present, help facilitate the interview if need be.
- Preparation – Non-Management – Who knows what an employee is going to say to the EEOC? Maybe they have an axe to grind? Hopefully not. The witness needs to know what they can expect and what the process is about. But assume anything you share with them will be relayed to the EEOC. Better to be safe than sorry.
- What can they ask? Quesitons should be limited to the scope of the charge. Of course there is some wiggle room there, but the charge should provide guidance.
- Be Nice – The idea is to make the site inspection a one time event. Reasonably accommodate the investigator in terms of his or he requests. It should be approached as a collaborative process, but never forget the power the EEOC has.
- Debrief – Debrief any witnesses that are interviewed. Since you won’t be present for non-management folks you need to know what was said.
- Follow up in writing. – Confirm in writing to the EEOC that it was provided with everything requested.
- Disruption – Take steps to minimize business disruption. Not everyone needs to know about what the inspection. If a conference room is available that is not in the middle of everything, use it.
These are just a few thoughts on the site inspection. Remember the ultimate goal is to obtain the Dismissal and Notice of Rights. Finally, make sure all of the employer’s required notices are up to date and posted.