Tag Archive | investigation

Input for EEOC Quality Control Plan

eeoc image.axdThe EEOC recently approved its Strategic Plan through 2016 and is now seeking input from the public on developing a Quality Control Plan (QCP) related to investigations and conciliations.  One performance measure under the Strategic Plan requires the QCP.

The EEOC requests information from individuals, employers, advocacy groups, agency stakeholders, and other interested parties.  Input must be provided by March 1, 2013.  The Agency will review the input and make appropriate portions available for meetings used to develop the QCP.  Some submitters may be invited to testify before the Commission.  The Agency’s February 12 press release is available by clicking here.

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Performance Evaluations

Performance evaluation

This time of year, it is very common for companies to schedule performance appraisals for employees.  There may be a policy that governs how these evaluations are conducted, and there are likely standardized sheets used to guide those evaluating.  This process sometimes becomes such a part of the routine that it is shortcut or ignored.  Keep these things in mind working through the process:

  1. Education for those doing the evaluation is a must.  This includes reasons for evaluation and how it should be conducted.
  2. Communication is essential, both in obtaining input about employees and letting employees know the results.
  3. Consistency is necessary.  The same scale should apply so that evaluation means something with how the employees are viewed and how they are managed.
  4. The information in the forms matters.  We are all familiar with situations where an employee has been a chronic problem for years but performance appraisals are glowing.  That really helps a former employee with a claim alleging pre-textual termination.
  5. Honest and accurate evaluations can assist in many areas, whether it is in review of a business unit or department, function of supervisors, or investment of resources.  They can lead to better work from employees or can inform decisions about taking adverse employment action.

Social Media Jury Instructions

Much of HR is focused on staying out of the courtroom.  However, there are times that employment issues end up there.  Just as use of social media has become a big issue for employers, it is becoming more and more of a problem for courts.

A new model instruction has been proposed by the Judicial Conference Committee on Court Administration and Case Management.  It reads in part:

I know that many of you use cell phones, BlackBerrys, the Internet and other tools of technology. You also must not talk to anyone at any time about this case or use these tools to communicate electronically with anyone about the case. This includes your family and friends. You may not communicate with anyone about the case on your cell phone, through e-mail, BlackBerry, iPhone, text messaging, or on Twitter, through any blog or website, including Facebook, Google+, My Space, LinkedIn, or YouTube. You may not use any similar technology of social media, even if I have not specifically mentioned it here.

A full copy of the instruction can be found here:  Proposed Model Jury Instructions; The Use of Electronic Technology to Conduct Research on or Communicate about a Case.

FCRA Claims and Disclosures

There are reports of increasing litigation over credit reporting activities by employers.  That is due in part to the fact that more employers are routinely conducting background checks.  It is also due to the fact that employers may not comply with the Fair Credit Reporting Act when it applies.  Penalties under FCRA can range from $100 to $1,000 per violation.  Also, in addition to actual damages such as lost wages, punitive damages are also available even when actual damages cannot be proved.

There are three disclosure provisions under FCRA.  First, an employer must obtain a written authorization form from applicant or employee before running a consumer report.  This authorization must be a stand-alone form, not a notice or clause in an application.  Second, there must be a pre-adverse action notice when negative information is found.  This requirement is often ignored because it can hamstring or slow the employer’s attempt to fill an open position.  The law intends that the applicant or employee will have an opportunity to learn the negative information and respond to it.  Third, an employer must provide a post-adverse action notice if a decision was based on the negative consumer report.  Then, the applicant or employee has a reasonable time to dispute and correct the information.

Getting Employee Information Can Implicate FCRA

When an employer obtains a “consumer report” or an “investigative consumer report” from a third party that qualifies as a consumer reporting agency for use in making an employment decision, it must comply with the Fair Credit Reporting Act (FCRA), 15 U.S.C. Sect. 1681 et seq.  FCRA limits the purposes for which a report may be obtained to a limited field of uses, including for employment purposes.  A consumer report can include driving reports, medical reports, and credit history; it is defined as any communication that provides information about creditworthiness, credit capacity, credit standing, reputation, character, or personal characteristics.  An investigative consumer report may include the same types of information—character, general reputation, mode of living.  This type of information is obtained through interviews or discussions with co-workers, associates, relatives, or others who know the individual personally.  FCRA does not apply if the employer conducts its own investigation, such as interviews of references.

Basic Rules for Responding to a Human Rights Claim

What should you do when you receive a claim from the Human Rights Commission or Equal Employment Opportunity Commission?  How you respond sets a tone for the charge, and also for defense of possible claims arising after the response.  Here are five suggestions that should guide your response:

  1. Contact your EPLI carrier if you have insurance, and coordinate with counsel.  Prompt reporting of a claim is a requirement of all insurance.  An agency charge may be the first step to litigation, and input from counsel to investigate, review, and coordinate defense is important.
  2. Be accurate and inclusive.  Conduct a sufficient investigation to verify the information.  Also, preserve all pertinent information and documents, and avoid future spoliation issues by suspending document destruction practices.
  3. Explain how your business works.  Details about your organization may help provide context for your actions.
  4. Recount all that happened completely.  Even if the charge includes only an imprecise allegation, a comprehensive response with justification for all decisions is preferable.  This includes making all necessary witnesses available, and you must ensure confidentiality and no retaliation during the interview process.
  5. Provide context for the charge.  Outlining your consistent past actions displays that your organization is responsible and treated the current employee the same as others.