Meeting of March 20, 2013 - Development of a Quality Control Plan for Private Sector Investigations and Conciliations
Thank you for inviting me to participate in the EEOC's Public Meeting on the Development of a Strategic Enforcement Plan and to submit a written statement. I am submitting this statement on my own behalf. It is based on my nearly thirty years experience as an in-house employment lawyer with a large corporation, my conversations with others in the corporate community over the years and, more recently, representing and interacting with small to medium size business owners as a solo management-side employment law practitioner.
The way I can best contribute to this process is to focus on the area I know best; insight into how the corporate world reacts to and deals with the work of the Agency, familiarity with operational issues from having worked inside a large organization, and recent exposure to smaller businesses. As a result, my focus is more on the Agency process pre-litigation rather than on litigation priorities and process.
I know I am not familiar with all the internal workings of the EEOC so it is quite possible that suggestions I make may already have been implemented or may be unworkable. However, I am making them in good faith in the belief that a Strategic Enforcement Plan that improves the efficiency and quality of the Agency's work is better for all constituencies.
Improving efficiency and quality is vital for the Agency to have credibility with employer respondents; court decisions that lambast the Agency make it more difficult for attorneys for corporations and business owners to persuade their clients to respect the Agency and its mission.
I have learned since leaving the corporate world that, not surprisingly, small to medium size business owners deal with a different set of issues than do large corporations. For the smaller business owner, receiving an EEOC charge can make the difference between making a profit and taking out a loan. The small company usually does not employ an HR professional and feels the need to hire a lawyer to handle the charge. The process is often crippling for a small company, a situation that is particularly troublesome if the employer has done nothing wrong. Any changes in Agency operations that help bring down costs to all concerned would be welcome.
The specific topics I will cover fall into several categories: (1) the investigatory process, (2) the mediation program and the conciliation process, and (3) performance management.
Based on anecdotal evidence and my own experience, it appears that EEOC Field Offices do not follow consistent processes when investigating charges. While one might argue that this allows for innovation, I would suggest that consistency leads to increased efficiency, the development of common standards, the adoption of best practices and responsiveness to the needs of the various constituencies involved in the process. This would not preclude the Agency from rewarding employee suggestions for innovation that could be tested in an orderly and consistent manner through study and pilot programs.
In the corporate environment, consistency is essential to the operation of the business. It means that employees are using best practices and do not have to reinvent the wheel when confronted with an issue they, individually, have not previously seen before. Importantly, customers dealing with a variety of facilities in one organization can rely on expectations of how they will be treated and will not experience the frustrations and delays caused by a new set of procedures.
I understand that the investigatory process is included in an Instruction Manual for investigators. If this has not been done recently, I recommend that a knowledgeable team of experienced and highly regarded supervisors update it, develop checklists and clear up any areas of confusion. Hopefully, this work would result in a streamlined and clear set of processes that all investigators throughout the country would be required to follow.
An example of an area that may well not be handled consistently is whether employer position statements should be shared with charging parties, how confidential information contained in those statements should be dealt with. Likewise, there should be a uniform policy on the extent to which charging party submissions will be shared with the employer. Decisions on these and other open sensitive issues should be made at the proper level of the Agency using whatever process the law requires, shared with the employer and employee community and administered consistently by the investigators.
It also is important for the EEOC to continue its work with the OFCCP, the Department of Justice and any other relevant agency to coordinate efforts and enforce common standards.
It is safe to say that everyone, employers, charging parties and the Agency, all agree that charges are not being investigated in a timely manner. This is detrimental to all concerned. For employers, consequences include loss of productivity of managers involved in the charge many of whom are devastated by the accusations made against them, loss of memory as time passes, cost and difficulty of segregating and preserving records for long periods of time and the inefficiencies of constantly re-starting an investigation whenever the investigator gets back around to your case. I am sure that this lack of timeliness impacts all other interested parties similarly, adding up to a significant cost that everyone agrees could better be spent in remedying problems.
I recommend consideration of the following solutions:
For charges with little merit on their face, the investigator may not need to request a Position Statement and mediation should not be an option. For example, if a charge alleges a termination because of race, and the charging party admits to having quit after a dispute with a supervisor, absent any other allegation of a work environment that could result in a constructive discharge, likely no investigation is needed. If an employee in a call center alleges she was terminated due to her sex and the employer offers to send the investigator tapes of calls she mishandled, there probably is no reason for the investigator to do an on-site to meet with the supervisor.
I believe employers should be told whether a charge is viewed as an "A" charge. Of course, it might be obvious if there is no invitation to mediate but an actual discussion of the categorization of the charge and the reasons behind it will allow the employer representative to better understand the breadth of an investigation, the rationale for it and the expectations of the Agency. It also will educate an employer, particularly one who does not have an HR professional, about the issue. That may lead to a quicker solution or to a change in behavior relating to a situation of which higher-ups in the organization were not previously aware.
Cynics might say that would allow the employer to hide the ball, destroy evidence, etc. However, in my experience, employers want to follow the law and correct mistakes and do it in a timely fashion. There are some rogue employers, just as there are rogue employees both at the Agency and in the general population, but if all our policies and procedures are dedicated to the bottom 10%, we all miss many opportunities.
I am a strong supporter of the Agency's mediation program. I believe that it has resulted in the early resolution of cases to the benefit of employer and employee alike and has served to further the Agency's mission. I would like to see the SEP continue the focus on Alternate Dispute Resolution begun in the first National Enforcement Plan and, where possible, make it even better than it already is. I understand that there is concern that a number of employers do not agree to mediation and there is speculation as to why. In my experience and in the experience of others with whom I have spoken, here are a couple of reasons why employers do not agree to mediation:
There have been some issues regarding the quality and training of the mediators and of consistency in the handling of the cases. However, for the most part, my experience, particularly in the Memphis office, has been excellent and I have resolved every case that I have mediated. In order to improve the mediation program, I suggest the following:
Employers with whom I have spoken have been frustrated by the refusal to mediate an "A" case and some suspect that the obstacle is a desire by the attorneys to file a case, get credit for it and for a litigated resolution. If that is the case, a performance management system that gives attorneys credit for pre-litigation work might be a solution. The Agency would continue to get credit for the resolution, even if it did not occur in litigation.
The Conciliation Process should be as significant an opportunity for resolving a case, as is the mediation process. Instead, as my and others' experience has shown and as courts have found, the conciliation process has often been a meaningless and frustrating exercise that hurts the credibility of the Agency.
Obviously, its employees accomplish the Agency's work. The quality of their performance is the deciding factor in whether the Agency can accomplish its mission. I commend the EEOC on its Performance Management Initiative since not only will it result in improved employee performance but also, the process of deciding what to evaluate helps refine thinking about Agency priorities.
Most businesses, small or large, use performance evaluation systems to focus employees on the issues that matter to the company, evaluate them on that basis and reward them on how they perform in those areas. An employee knows that there will be recognition and possibly a monetary award (not always, in these economic times), if they perform well in the areas that are being measured in the performance evaluation. In all likelihood, if an activity is important to the employer, it will appear as a performance measure; if it does not appear, an argument can be made that the employer does not expect much in that area.
For a sales person, areas of focus may be number of sales calls, sales technique (determined by a manager who accompanies the sales person on calls periodically) and amount of closed business. If paperwork completion in a timely manner is not on the list, it may be ignored by the sales person who figures the employer is more interested in the business she has sold. For an employment lawyer, the list may include quality and timeliness of advice, number of charges managed and number of no cause findings. It may not mention quality and amount of training of supervisors. In that case, the lawyer likely will not do much supervisor training.
Performance evaluations can change an organization's culture. It is one thing for a CEO to say that our culture values cooperation among our business units; we don't want our employees to work in silos, rather we want them to collaborate. That goal is raised to a whole new level and will result in a culture change if employees are evaluated on how well they accomplish it. If higher than normal salary increases (or no salary increases) or other monetary rewards are not available, other types of recognition can be identified. (See 1501 Ways to Reward Employees by Ben Nelson, PhD).
Similarly, to the extent they do not exist already or need change, updated performance measures need to be established for Agency positions. The following are some thoughts on this process:
The Strategic Plan contains many commendable goals and strategies. I hope that the EEOC is successful in accomplishing them since doing so will benefit the Agency and all its constituencies. Thank you again for the opportunity to contribute.