In a past issue of Corporate Counsel an article titled It's a Systemic World Out There discussed the EEOC's pursuit of large "systemic" cases and noted the agency's growing use of broad investigations and lawsuits. Although your company might not be large enough to be on the EEOC's radar, attorneys are also suing small to midsized companies on a class basis.
An employee may visit a lawyer over a missing final paycheck and that contact can lead to a class-action suit alleging missed overtime or meal-period violations. For related employer guidance, see Navigating Workplace Challenges.
Practical advice
- When responding to an EEOC inquiry, don't use the phrase "pursuant to our consistently applied policy." This only invites a broader request for information.
- Do not submit more information than is necessary.
- Conduct your own statistical analysis before submitting data.
- Do preventative analysis looking for adverse impacts in the hiring, promotion, or termination practices.
- Validate pre-employment tests.
- Conduct preventative compensation analysis periodically.
- Cover all internal analysis with attorney-client privilege. This might be impossible in smaller organizations, but you can certainly retain outside counsel to instruct you on how to conduct such analysis and report back to them.
- Listen to your employees. As recommended, you should survey your employees, including use of the Employee Compliance Survey found in HR That Works.
- Invigorate that underutilized internal complaint system. Again, go one step further and ask if there's a problem–don't wait for them to tell you there is one.
- Stay current with legal trends. This is one reason why HR That Works membership can be valuable.
- Walk the talk. Be sensitive to the potential for your practices to cause adverse impacts; many companies do not appreciate a risk until they are hit with it.
Large organizations can pull requested data quickly from HRIS systems, while smaller employers may find data collection burdensome. This is one reason to hire an attorney whenever you receive a communication from the EEOC or another regulatory agency. For additional background on related workplace topics, see Shelters Insurance Overview.
If you need assistance interpreting requests or planning preventive analyses, consider legal counsel and, when appropriate, talk to an agent.
Frequently Asked Questions
What should I do first if the EEOC contacts my company?
Do not provide more information than requested and consult with an employment attorney before responding.
Can small companies be targeted for class or systemic claims?
Yes; attorneys can and do pursue class claims against small and midsized employers when systemic issues are alleged.
How can we reduce the risk of a systemic investigation?
Regularly run internal audits of hiring, promotion, termination, and compensation practices and document your analyses with legal guidance.
Should internal surveys and complaints be taken seriously?
Yes; listening to employees and maintaining an effective complaint system can identify issues before they escalate.