EEOC Is Serving Charges in Person… and Will Try to Interview Your Employees at the Same Time
Contact Clara (C.B.) Burns, Charles C. High, Jr., Michael D. McQueen and Gilbert L. Sanchez -
August 9, 2016
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Most of you are probably used to receiving EEOC charges by mail or email. But the EEOC may also serve a charge in person by delivering it to your place of business. At the same time, they will attempt to question your employees…….
EEOC investigators deliver the charge in person, without prior notice, then try to interview employees on the spot. When investigators arrive, they do not provide any rights warnings nor do they inform employees that they are free not to answer any questions. They also do not inform employees that the employer has a right to have counsel present when an EEOC investigator interviews a management employee. Investigators will attempt to question the person who accepts the charge, management or not, and will likely ask to interview others.
This practice is new to many of us in that it has not been used in many jurisdictions; we are accustomed to receiving charges by mail or email. This practice essentially amounts to a no-notice on site investigation. When conducted, on site investigations are generally scheduled with the employer’s knowledge, so the employer has the opportunity to seek counsel and to prepare. This new practice deprives employers of this opportunity, so employers must remain vigilant at all times.
What Should Employers Do?
1. Notify all employees of the EEOC’s procedure, especially management employees, receptionists, and anyone else who may be in a position to be the initial contact for an EEOC investigator visiting your place of business.
2. Designate a management person to accept EEOC charges. Train that person to immediately notify your Human Resources manager or other manager designated to handle charges.
3. Inform employees that if the EEOC attempts to serve a charge by giving it to them and asking them to sign, they should refer the investigator to the person designated to accept such charges.
4. Tell employees that they do not have to answer any questions from EEOC investigators when an investigator serves a charge in person.
5. Tell management employees that they are not to answer questions or participate in interviews until the company has had the opportunity to retain counsel to attend any interviews of management employees by EEOC investigators.
6. Remind employees to remain professional and courteous at all times.
Why is This Happening?
Federal regulations allow the EEOC to serve charges in person or by mail, and to investigate charges by various means, the list of which is not exclusive. Historically, the EEOC has served charges in person in some jurisdictions but not in others. Procedural changes often come with leadership and staffing changes, as well as changes in the EEOC’s guidance to its field offices. It is important for employers to be aware of this procedure and to prepare employees ahead of time so that they are not caught off guard when this happens.
If you have questions on this development, or need counsel regarding an EEOC charge or any other employment-related matter, please feel free to contact us at 915-533-4424.
Clara (C.B.) Burns clara.burns@kempsmith.com
Michael D. McQueen michael.mcqueen@kempsmith.com
Charles C. High, Jr. charles.high@kempsmith.com
Gerald (“Gerry”) G. Howard gerry.howard@kempsmith.com
Abe Howard Gonzalez abe.gonzalez@kempsmith.com
Gilbert L. Sanchez gilbert.sanchez@kempsmith.com
About Kemp Smith
With offices in El Paso, Austin and Las Cruces, Kemp Smith is fully staffed to address a wide range of legal needs including Appellate, Banking, Bankruptcy and Creditors’ Rights, Corporate and Business, Energy, Environmental, Estate Planning, Government Relations, Health Care, Immigration and Nationality Law, International Law, Intellectual Property, Labor and Employment, Litigation, Probate and Trust, Public Law, Real Estate, Tax, Telecommunications and Water Law and Utilities. Please visit www.kempsmith.com or call 915.533-4424 for more information.
EEOC investigators deliver the charge in person, without prior notice, then try to interview employees on the spot. When investigators arrive, they do not provide any rights warnings nor do they inform employees that they are free not to answer any questions. They also do not inform employees that the employer has a right to have counsel present when an EEOC investigator interviews a management employee. Investigators will attempt to question the person who accepts the charge, management or not, and will likely ask to interview others.
This practice is new to many of us in that it has not been used in many jurisdictions; we are accustomed to receiving charges by mail or email. This practice essentially amounts to a no-notice on site investigation. When conducted, on site investigations are generally scheduled with the employer’s knowledge, so the employer has the opportunity to seek counsel and to prepare. This new practice deprives employers of this opportunity, so employers must remain vigilant at all times.
What Should Employers Do?
1. Notify all employees of the EEOC’s procedure, especially management employees, receptionists, and anyone else who may be in a position to be the initial contact for an EEOC investigator visiting your place of business.
2. Designate a management person to accept EEOC charges. Train that person to immediately notify your Human Resources manager or other manager designated to handle charges.
3. Inform employees that if the EEOC attempts to serve a charge by giving it to them and asking them to sign, they should refer the investigator to the person designated to accept such charges.
4. Tell employees that they do not have to answer any questions from EEOC investigators when an investigator serves a charge in person.
5. Tell management employees that they are not to answer questions or participate in interviews until the company has had the opportunity to retain counsel to attend any interviews of management employees by EEOC investigators.
6. Remind employees to remain professional and courteous at all times.
Why is This Happening?
Federal regulations allow the EEOC to serve charges in person or by mail, and to investigate charges by various means, the list of which is not exclusive. Historically, the EEOC has served charges in person in some jurisdictions but not in others. Procedural changes often come with leadership and staffing changes, as well as changes in the EEOC’s guidance to its field offices. It is important for employers to be aware of this procedure and to prepare employees ahead of time so that they are not caught off guard when this happens.
If you have questions on this development, or need counsel regarding an EEOC charge or any other employment-related matter, please feel free to contact us at 915-533-4424.
Clara (C.B.) Burns clara.burns@kempsmith.com
Michael D. McQueen michael.mcqueen@kempsmith.com
Charles C. High, Jr. charles.high@kempsmith.com
Gerald (“Gerry”) G. Howard gerry.howard@kempsmith.com
Abe Howard Gonzalez abe.gonzalez@kempsmith.com
Gilbert L. Sanchez gilbert.sanchez@kempsmith.com
About Kemp Smith
With offices in El Paso, Austin and Las Cruces, Kemp Smith is fully staffed to address a wide range of legal needs including Appellate, Banking, Bankruptcy and Creditors’ Rights, Corporate and Business, Energy, Environmental, Estate Planning, Government Relations, Health Care, Immigration and Nationality Law, International Law, Intellectual Property, Labor and Employment, Litigation, Probate and Trust, Public Law, Real Estate, Tax, Telecommunications and Water Law and Utilities. Please visit www.kempsmith.com or call 915.533-4424 for more information.
