Onsite EEOC Investigations and Fact Finding Conference

A few simple tactics to avoid the EEOC investigation net

Avoid EEOC investigation by giving them everything
One way to avoid an on-site EEOC investigation is to include copies of relevant documents with the position statement. If they say they want to come in and review files, if you’ve given them those files already, it is less likely that they will come in.

If the EEOC investigator indicates that he or she wants to interview certain employees, before saying” Come on in”, it makes good sense to offer to make those employees available for the EEOC investigation at the local office or counsel’s office

If a witness in an EEOC investigation is a supervisory level or management level, the company has a right to have counsel present during that interview. They don’t have a right if they’re just staff, although you can ask. EEOC had said ok to the presence of a company lawyer in some instances. So, it’s worth asking.

If the EEOC insists on coming in, you should request in writing that they tell you what documents they’d like to review as part of their EEOC investigation and complaint before they come in and identify the witnesses they’d like to talk to. That is going to allow you an opportunity to prepare the necessary information and to meet with the witnesses beforehand to explain the process. And if they just want to look at documents, they might also let you say, I’d be happy to copy these for you and send them over.

Make sure you’re in full compliance before the onsite EEOC investigation starts
Additional couple of things to remember, if they’re coming in, you should assure that all of your required EEOC, Department of Labor and other postings are properly updated and displayed prior to the agency’s on-site visit.

EEOC investigations and the fact-finding conference
Another thing they may do is have a fact-finding conference as part of the EEOC investigation. It’s usually not mandatory. They don’t do it that often, but it is one tool they’ve got. The EEOC compliance manual tells us that the fact-finding conference is “an investigative forum intended to further define the issues, determine what is undisputed, clarify disputed issues, and determine what other evidence is need”. That’s when the EEOC is saying, okay, we really want to figure out what’s going on here, what’s still disputed, how can we narrow the focus?

They may hold the fact-finding conference to facilitate fact gathering. They may also hold it push the parties to try and settle the matter.

It’s not adversarial. It’s informal. It’s investigative. The EEOC will take notes during these meeting. And attorneys, because the parties can bring attorneys if they like, are not permitted to testify for their client or ask questions, but they are permitted to be there.

So, if the EEOC investigator chooses to conduct a conference, you want to make sure that everybody who’s coming or participating understands their roles, when they’re supposed to talk, when they’re supposed to listen. That if they’ve got questions, if your company has questions you want to ask of the other side, you won’t be able to ask them directly. So, you may want to submit the questions to the EEOC in advance, so that the EEOC can ask those questions, because that’s how fact-finding conference works.

Again, they don’t happen that often, but if they do, you should be prepared. And at this point, you’ve done a position statement, so you would have that as your background. You would definitely review it beforehand to make sure that you are comfortable the content and that you don’t have to make any updates or fix any factual misstatements.

Edited remarks from the Rapid Learning Institute webinar: “EEOC Charges: How to Prepare an Airtight Response and Avoid Costly Payouts” by Alyssa T. Senzel, Esq. on 8-1-07