In October 2018 the EEOC’s Miami District Director, Michael Farrell, stated that in Florida the EEOC will be increasing its use of the investigative tool known as Onsite Investigations.
“We are a law enforcement agency.”
How to prepare your facility for an onsite EEOC inspection tour?
Your management labor law firm should assist you by conducting a practice walk-through with the company representative (HR Director) who will guide the EEOC tour when the EEOC investigator arrives. Your employment lawyer should be able to identify and remove all problems and “red flags” that they observe during the sample dry-run walk through. As an example, any inappropriate postings or other visible material, and any likely safety issues can be spotted and corrected before the EEOC investigator arrives with his/her camera. Your employment counsel should help you check for accessibility issues: locked doors, blocked walkways, etc. Your attorneys should also be able to identify potential areas to avoid in workspace. If there is an area at the jobsite that is not preferable for the EEOC investigator to see, this practice walk-through can allow you to plan your inspection tour to take a different path. Keep in mind that the intent of the EEOC tour is to give the EEOC investigator a basic understanding of your company's operations and how the company’s policies are applied. Your employment lawyer will probably advise you that the company representative will be the one leading the tour, not the EEOC investigator. Also your employment attorney may be present for the inspection.
Florida companies should understand that this means that in Florida the EEOC is undertaking a more aggressive investigation strategy. In the past, if a Florida employer received notice that a charge of discrimination had been filed against it, sometimes the business never heard from the EEOC again. Other times, the EEOC would request that the Florida company provide a position statement, explaining its position to the allegations.
Now it is clear that Florida businesses should prepare for a more involved EEOC. Human Resource professionals should realize that the EEOC in Florida may go beyond asking for the company to provide a position statement, and now also may demand an on-site visit to the employer’s workplace to interview witnesses, walk around the workplace and look for more problems in the workplace.
Your experienced EEOC defense attorney should help your Florida company avoid tangential problems. This is because if the EEOC investigator comes out to do an onsite inspection, and if they also see other obvious violations, you may soon be the target of other governmental investigations. As an example, some laws are administered by other federal agencies (such as health and safety laws regulated by OSHA, and child labor, FMLA and wage and hour laws are regulated by the Department of Labor (DOL). It is not difficult for the EEOC to refer these other visible violations to other agencies. This is why our law firm recommends that Florida businesses absolutely accompany any EEOC investigator at all times while they perform an onsite inspection. Who should accompany the EEOC investigator? A non-chatty representative of your company who is familiar with the facility and knowledgeable with EEO laws and in dealing with the investigator. This is not a minor matter that you can designate to a low-level receptionist. This is a federal investigation into your company and you should take it seriously. If you have a Human Resources director with decades of experience, that is the person who should accompany the EEOC investigator during the onsite inspection. You may want to consider bringing in an experienced labor and employment lawyer to assist during the onsite inspection.
What should your Florida business expect when the EEOC requests an onsite inspection?
This means that the EEOC investigator will want to come out to your worksite and have free reign to walk around your facility. We do not recommend that you permit this, and instead you should facilitate a tour of the facility which is the target of the alleged discriminatory activity. Basically, if the EEOC charge of discrimination alleged that misconduct, such as sexual harassment, took place in a breakroom, then you should plan on the EEOC investigator wanting to see that breakroom.Your Florida labor and employment attorney should discuss strategy with you and make sure that all required federal and state employment law posters are up-to-date and that they are actually posted and readily visible (not out of date, covered up or hidden).
Get ready for more EEOC onsite inspections!
When in the EEOC process will the investigator want to do the onsite inspection?
This is where an onsite inspection is different from a Department of Labor inspection. Typically the DOL investigator shows up unannounced and barges in. Although it is not guaranteed, it is most likely that the EEOC investigator will want to conduct the on-site investigation after your Florida company has submitted its written Position Statement.
What will the EEOC investigator do when he/she comes out for the onsite inspection?
They will usually do what other federal investigators, such as DOL Wage and Hour investigators, do: The EEOC investigator will probably question witnesses. These interviews will often include rank-and-file workers, and also management. The goal of these interviews is to see whether these employees are inconsistent with the information the company provided in its Position Statement.
For this reason, it is wise for Florida businesses to have all management employees who were involved in any way with the alleged discrimination charge claim to review the Charge of Discrimination filed by the employee and also review the company’s written Position Statement. These management officials should also review any evidence your Florida company provided to the EEOC so these managers can familiarize themselves with the case and not undermine your company’s position statement by giving the EEOC investigator wrong information.
Your Human Resources representative should be prepared for the EEOC investigator to possibly aggressively question any HR staff member about their knowledge of employment laws, their training, and what type of training your company provides to both management and also lower level employees about discrimination and harassment. This is important because if your company has an HR professional who does not demonstrate knowledge of anti-discrimination laws, the EEOC investigator may conclude that your company may have a systemic problem and/or that your policies are not effective. Your company’s representatives at the onsite investigation should understand your company’s obligations under the laws enforced by the EEOC.
In the event the onsite inspection is to take place at a location where your company does not have an HR representative at that location, your experienced employment attorney should work with you to make sure that you have a manager at that facility who can identify when there is an HR issue and who is able to tell the EEOC investigator that if there is an issue, they know who in the company to call for HR guidance on any HR issues, such as complaints or requests for accommodations.
How is retaliation involved during an onsite EEOC investigation?
Your experienced Florida Labor & Employment attorney should explain to you that it is important to remember that your company's non-retaliation policy applies to any employees who are participating in an EEOC Investigation. This includes anyone that the EEOC investigator may interview.
Why does this matter? Because it is important for your labor lawyer to clarify your role as the employer in securing employee compliance. Of course you would like any employee who is interviewed by the EEOC investigator to say things that support the employer's position. However, not all employees may say what you would like. A Florida company can run into trouble if they coach witnesses too much. This comes back to the fact that participation in an EEOC investigation provides the employees who participate a heightened protection. Essentially, employees who are interviewed by the EEOC may have a strong retaliation claim for materially adverse change to employment shortly thereafter. Your Florida employment attorney should advise your company to not to take any adverse action against a witness without strong supporting evidence. This is because any adverse employment action taken after an employee participates in an EEOC investigation will run the risk of being viewed as retaliation, especially if the adverse employment action (termination, demotion, failure to promote, etc.) takes place shortly after the EEOC interview.
Florida employers should be particularly focused on how things look from the outside. Even if you believe that the employee lied to the EEOC investigator, your Florida labor attorney should caution you against taking adverse action against any employee who participated in the EEOC investigation.
One of the techniques that the EEOC investigator may use against your Florida business is to evaluate how your company handles onsite investigation. As an example, if the EEOC investigator interprets your "coaching" of witnesses as crossing the line, that can suggest the employer is violating the law. For instance, if the EEOC investigator sees your preparation of witnesses as "heavy-handed," that may support a cause finding for a retaliation investigation.
This is just a general overview of what Florida employers can expect if they have never had the EEOC investigator conduct an on-site visit. It is best to coordinate with an experienced labor and employment lawyer ahead of time.
Florida employers who have questions or concerns on this topic should contact our law firm by email or call us at 1-772-465-5111.
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