6 Internal Investigation Mistakes
As a former EEOC investigator, gone corporate then gone consultant…I’ve reviewed my share of internal discrimination investigations. Some are impressive, some are epic and well, others shouldn’t have bothered. Here’s our dirty half- dozen mistakes:
1. No report written to memorialize what happened – your notes scribbled on legal pads are often difficult for you to decipher and impossible for a third party. Write a thorough, detailed report when the investigation is finished.
2. Your Company is always right. Either because you’re getting pressure for the right answer or you think it’s your job…but sometimes the company is wrong. Right it but don’t necessarily write it without the wisdom of counsel.
3. Talking to one side and neglecting the other. This goes both ways – listen with an objective ear to both sides of an issue and plot your strategy to determine the truth. Don’t rush to judgment.
4. Not talking to witnesses because you don’t want gossip. Chances are, they are gossiping anyway. In a “he said/she said” they are critical. Tap into former employees and others who might have info – not necessarily only those identified by both parties.
5. Taking too long to investigate. The regulations require immediate corrective action. Issues of discrimination and harassment should get your immediate attention. Any lapses in timing should be documented. This is important stuff.
6. Neglecting follow up. Once an investigation has concluded, circling around with the complainant after a period of time is wise, particularly when an issue was righted or was inconclusive. Assure no retaliation is occurring. Communication is key in creating trust and avoiding litigation. Document your follow with a supplement to your well-written investigation.
Internal investigations handled by qualified and trained HR professionals are a great defense in a lawsuit and build a culture of trust. Handled badly…not so much. Don’t be afraid to ask for help! We’re skilled in training your HR professionals AND conducting third party fact-finding.
10 things to do NOW to stay compliant with OFCCP regs
| Here are our 10 tips for staying compliant with OFCCP regulations:
1. Talk to your business development department, procurement department or other key sales people in your organization to determine if you are a federal government contractor or subcontractor. We’re encountering many situations where an audit letter was the first notice for HR or Legal that the company had entered the Affirmative Action space. 2. Keep your plan up to date. An Affirmative Action plan is an annual process. Be disciplined about putting it together, on time. 3. Review all data for accuracy. Pay close attention to race, gender, and job titles to assure they are accurate. 4. Conduct adverse impact analyses on applicant flow/hires; promotions and terminations. If there is any adverse impact, make sure the data sets are correct. Go back and investigate why potential adverse impact is occurring. 5. Make sure you are defining “applicant” properly and recognize that less is more when it comes to applicants. 6. Share your results with your management team. They don’t need to know all the details of the statistics, but they do need to know areas of underutilization. 7. Make sure your career page from your company website gives an alternate method to apply for those who can’t use the on-line system due to disabilities. 8. DEVELOP STRATEGIES FOR GOOD FAITH EFFORTS for females, minorities, disabled and veterans. Document. Your audit will focus on this – especially Veteran’s and Disability resources. Consider meaningful ones for your business vs. check the box. 9. Post all your jobs with your state job service. They will check. 10.Regularly review compensation equity for similarly situated employees. Be able to explain differences in pay between people – is your system seniority driven? Performance driven? Skill driven? Experience driven? Do you have the back up documentation?
The OFCCP is changing and aggressively reviewing your employment practices. The best defense is always a good offense. Make sure your are on top of your compliance documents, outreach requirements and employment decision documentation. |
2011 OFCCP review
WOW! 2012 was an interesting year on the OFCCP front. Here’s what we experienced:
- As advertised, we noticed a decline in the number of audits but the audits we assisted with were INTENSE.
- The Chicago office experienced a backlog resulting in rescinded audits and the movement of cases in that office to other offices.
- We haven’t seen the new scheduling letter, but have experienced the increased requests for leave policies, records of accommodations, contacts with state job service, good faith effort documentation and lots and lots and lots of compensation data.
- So often, we can’t figure out where the compensation analyses are going – data elements are requested and analyzed even on groups without male/female or minority/non-minority representation in them. Analysis is being conducted at levels that aren’t always comparing apples to apples. We have not experienced (knock on wood) any violations but we have assisted with the production of documents that would kill a forest.
- Data integrity questions – questions about census coding, census areas, weighting, etc. There is a level of detail attached to audits that we haven’t seen in 20 years.
- Applicant tracking remains a hot issue, but was back seated to compensation equity.
What we learned:
- Having your AAP completed on time and reviewed thoroughly is a mandatory first step. Identifying any adverse impact identified in this process is imperative -usually it’s a result of data integrity vs. actual adverse impact. Correct it when you’re not being audited.
- Good Faith Efforts must be meaningful and documented. You MUST be posting your jobs with the State Job Service everywhere you operate. This should include minority, female, veteran and disability outreach.
- Centralized recruiting functions are fine but they MUST be pushed down to the local level.
- Compensation systems have to be defensible: job descriptions, salary grades/levels, titling are all key components. Organizations that have been in merger/acquisition mode MUST level everyone into their organization. Past practices at a predecessor company are not a defense after they become your employee.
Stay tuned to see what 2012 brings…
Addressing the 13%
The US Department of Labor states that the unemployment rate for the disabled is 13% – 1.5x the rate of those without disabilities. In order to address that high rate, the OFCCP is proposing a 7% disability hiring goal for Affirmative Action employers – strengthening the Rehabilitation Act. Visit the federal e-rulemaking portal at http://www.regulations.gov
The problem as we see it:
- Difficulty in capturing disability status in the pre-employment process from a reluctance on the applicant’s part to self – identify as being disabled.
- The necessity for revising ATS’s to include this information – which is typically captured post hire vs. pre hire. Current disability and Veteran status is usually captured voluntarily post hire and is therefore, on an HRIS (human resource information system) vs. an ATS (applicant tracking system).
- Potential conflict with the Americans with Disabilities Act (ADA) – collecting this data in the applicant process creates a per se violation of the ADA. If you don’t collect this data in the applicant process, how can you quantify your efforts?
The opportunity as we see it:
Employing both Disabled and Veterans can make excellent business sense. Meaningful good faith efforts (GFEs) should focus on both of these segments.
- If your organization is near a military base, or military hospital, develop a relationship for potential placement in your organization.
- Identify organizations in your community that assist and rehabilitate people with disabilities and develop a relationship with them. They often offer assistance with accommodations and placement.
The agency is still accepting public comments, so stay tuned!
The best defense is a good offense
In football and human resources (still hurting from that Cowboys loss last night!), having an offensive strategy is imperative, particularly in the compliance area. Many companies receive their affirmative action plans, give them a quick glance then stick them on a shelf just praying that this is a year they won’t be audited.
We’re advocating that you dust your AAP off, take a look at what it says and prepare a good offensive strategy. This is not only good business practice (after all, you just paid for some reports that can tell you a few things) but with today’s Department of Labor Office of Federal Contract Compliance Programs (OFCCP) climate, it will put you in a winning position.
Today, we’d like to talk about one offensive strategy: meaningful Good Faith Efforts (or GFEs). Once you’ve reviewed your plan and have identified your goals, it’s time to think about how you will meet them and how you will document them.
GFE OFFENSIVE STRATEGY:
- Communicate goals to those with the power to impact: hiring managers, internal recruiting team, external recruiters and temporary services. This is a simple but often over looked step. We have clients with heavy external recruitment sources that have added diversity as a method to evaluate their outside resources.
- Develop meaningful outreach in your community. It’s not enough to post on the diversity boards, but that is a good first step. This is one of those areas where you need to get out from behind the computer and know what resources you have in your communities to provide minority, female, veteran and disabled candidates to your organization. You know you want an excuse to get out of the office and this is it!
- Avoid check the box solutions – in the old days annual letters to the NAACP, Hispanic Chamber, LULAC, WBC, etc. was the rote method of meeting GFE requirements – this produced busy work for an intern but didn’t produce results. Placing ads in minority, female, vets and disabled publications that existed solely for the placement of GFEs was another high cost/low return method.
- Be creative – one of our clients had a need for skilled tradespeople and a goal for craftworkers in their organization. They developed a partnership with an inner-city school system to get more kids interested in the trades. They spoke to administrators, teachers and children; they helped set up a curriculum; provided internships at their facilities and ultimately they developed a pipeline of qualified electricians and machinists in their organization.
- Call us for ideas – we’re here to help.
DOCUMENT! DOCUMENT! DOCUMENT
This can be as simple as printing out your email correspondence to organizations that you have developed relationships with; or flyers from diversity recruiting fairs attended; or minutes of meetings and placing them in your AAP.
Other of our client companies keep track in an HR drive or folder or in the notes on their Applicant Tracking System.
In the event of an audit, instead of defending your company, your offensive strategy will put you in a position to show off your team and your star Quarterback – YOU.
The Times They are A Changing
The OFCCP – Changes you Can’t Believe!
The shift in policies of the Department of Labor under Hilda Solis’s leadership has finally trickled down into the Office of Federal Contract Compliance (OFCCP). In December 2010, the agency scrapped the Bush administration’s Active Case Management Program and adopted an Active Case Enforcement (ACE) Program. As a result, there will be less compliance reviews but those scheduled will be rigorous and more on-sites will be held.
When you get your scheduling letter, you will still have 30 days to gather your documentation for desk audit. However, the OFCCP will be doing a little homework of their own. They will be contacting the EEOC, Wage and Hour, state/local Fair Employment Practice agencies, etc. to look at your complaint history over the past three years to determine if there is any pattern/practice of non-compliance with government regulations and agencies. An on-site review will not be limited to any of the indicators that triggered the review. And in the good news category, I-9s are no longer being reviewed by the OFCCP (of course you should still maintain them correctly).
Our practice during 2011 has shown that the OFCCP is digging deeper than we have ever seen. Compliance Officers are reviewing census codes, job titles, EEO-1 codes and the recruitment areas you are using. The recruitment process is scrutinized to make sure you demonstrate good faith efforts; are defining applicant correctly and recruiting processes are ADA accessible. Any adverse impact in any part of the employee cycle (Applicant, hire, promotions, terminations) must be explained and can be delved into.
Compensation equity remains a hot area of review. The Bush administration’s Tipping Point/Trigger Test has been replaced with a simple test that identifies either a 2% difference in pay or a $2000 difference in pay in the data submitted. Of course, this is done at the job group or salary grade level, which means EVERY COMPANY we work with, has been asked for further information relative to compensation and compensation disparities.
The OFCCP has some proposed rules to change Veteran reporting. Significantly, that federal contractor be required to set goals for veteran hiring and track applicants by veteran status, similarly to what is done for females/minorities.
This is enough to make your head spin! So what can you do to be prepared for this new era?
- If you are an Affirmative Action Employer, for heaven’s sake – keep your plan up to date. Review all data for accuracy when it is completed and make sure that you share your results with your management team.
- Make sure you are keeping applicant flow and defining applicant correctly. Only include those that are true applicants under the OFCCP’s definition.
- Develop a strategy for documented, meaningful good faith efforts for females, minorities, disabled and veteran’s. We find that a lot of our clients have moved to centralized recruitment functions. There is often a lot of high-level diversity strategy but it’s often not pushed down to the local level or it’s not documented. When audited, make sure you include these good faith efforts in your data submission.
- Assure that your recruitment process is accessible. If you are requiring people to apply on line, have a method for those who can’t use the on line system to apply just as expediently as those who do. Include accessibility statement on your career page.
- Make sure you are listing your jobs with the State job services where you operate. This is a requirement. Since America’s job bank has gone away (which was a free centralized board), there have been other paid services that have sprung up if you are a big company. If you are a small company, develop a relationship with your local job service and find a way to get your postings to them.
- Compensation – this is the toughie. Compensation equity review is often difficult to do because all of your data points don’t reside on your HRIS. For example, previous year’s experience a person brings to the job or education. Another complicating factor is when your organization has been the subject of merger/acquisition/divestiture/bankruptcy, etc. WHO HASN’T?
- Adding compensation equity review as part of your compensation cycle is key. Where inequities exist because of business conditions and not because of discrimination, have a plan for fixing them. The OFCCP will take the stance that you didn’t have anything to do with past comp, but when they became your employee you had the obligation to fix any past inequities. That is straight from an auditor’s mouth!
The Pendulum is swinging in the opposite direction of what we’ve seen over the past 12 years or so. No doubt, it will swing back. But until it does, please let us know what we can do to assist you and get you audit ready.
I took a Louisville Slugger to both headlights….
Retaliation.
It’s funny in a country song, but in the workplace…it can mean serious trouble. The EEOC reports that in 2010, that for the first time in its history, Retaliation Charges were the most filed EEOC charge - representing 36.3% of all charges filed – that’s greater than 1 in 3!!!
As a former investigator with the EEOC, I’m here to tell you that claims of retaliation are taken VERY SERIOUSLY by the Commission.
What does the EEOC look for when investigating a charge of retaliation?
First, did an employee protest protected discrimination either verbally or in writing through an internal complaint mechanism or with a local, state or federal agency? Or was the employee involved in an investigation as a witness involving protected discrimination claims? Just stating unfair treatment in the workplace is not enough – the employee must state that the treatment was based on race, color, sex, national origin, religion, age, disability or genetic history – any of the legally protected statuses.
And GUESS WHAT? The actual claim does NOT have to be valid to have a VALID case of retaliation. The regulations recognize that the average person does not have knowledge of the law. The employe has a RIGHT to make a claim of discrimination and the employer has a RESPONSIBILITY to look into the claim.
Secondly, was there an adverse employment action? Was the employee fired? Demoted? Transferred? Isolated?
Thirdly, was there a connection between the complaint and the adverse employment action? This is generally shown by timing or anecdotal evidence.
What are best practices in avoiding retaliation claims in your organization?
- Create a true open door culture within your organization. Welcome employee suggestions and complaints so they aren’t fearful of losing their job if they do.
- Take all discrimination complaints seriously and document everything done to address the complaint.
- Train your managers and supervisors in EEO laws, and particularly the retaliation piece of the law.
- When investigating a complaint internally, let the employee and witnesses know that there will be no retaliation for participating. Give them a contact for reporting any alleged retaliation.
- Loop around with the person who has filed the complaint to make sure that everything is Ok for them and if not, to let you know.
- If employees have to be separated due to harassment on the job, never make it worse for the person who complained (i.e. moving them to another department).
- If you are in the middle of a disciplinary process when complaints of discrimination are made, tread lightly. Make sure that you separate the two issues out but handle them both seriously and promptly.
It’s human nature to be upset when someone has accused you of discrimination. It’s high risk to take it personally and act out on it.
And the Sign said, Long Haired Freaky People Need Not Apply…
You’d be hard pressed to find a sign like that out today. Or advertisements seeking “Help Wanted Male” “Help Wanted Female,” or signs telling someone to use the back door. We’ve come a long way from those early contentious days of the Civil Rights Act, but are we there yet? Have we created a business world where equal employment opportunity is the standard and diversity is recognized and embraced? The days of blatant discrimination are more or less removed from the mainstream, but some of the barriers to advancement are alive and well. Yes, even in your organization.
How can you go about identifying and tackling these barriers? The obvious first step is often overlooked…just ask. Although many organizations will jump directly to training, data gathering is a critical first step and can be accomplished a number of ways. Warning: if you’re not prepared for what you might hear and aren’t prepared to do something with this information, don’t do it. You’ll add fuel to a smoldering fire.
- Exit Interviews - not just as employees are leaving but survey those that have left the organization within the past 1-2 years. People are far more likely to be candid when they have nothing to lose. Analyze this data demographically and ask direct questions. Consider follow up focus groups.
- Track/Analyze data you already keep – EEOC charge activity, employee complaints, union grievances – this can show trends of problem areas and problem supervisors
- Frank conversations - one of our clients was frustrated with the lack of females in first line supervision. When openings occurred, the females were not applying. After several external recruiting strategy meetings to increase female supervision, we suggested the ASK. This client approached a few high potential female candidates to inquire why they weren’t applying for the position. Their response: they didn’t believe a female would really be considered because all the supervisors were male. Females were informally encouraged to apply and within months, this artificial barrier was removed.
- Employee Surveys – include diversity questions and determine your own internal barriers – be prepared to get creative with your solutions. Accounting firms and consulting firms notorious for heavy travel and long hours have increased retention of valued female associates by allowing them the opportunity to work but not fast track so that they can retain balance in their lives. BONUS! It’s not become a female friendly policy but a family friendly policy.
- Focus Groups - One client wanted to get the pulse on why females and minorities were exiting the company at a higher rate than their white male counterparts. Focus groups allowed us to identify attributes about the work – long on call hours that could be restructured and make retention better for everyone, including minorities and females. The information helped identify geographical parts of the country that were key training grounds but were not ideal for culturally diverse people. This couldn’t change but did allow the company to better craft its recruitment messages
In our increasing global world, removing barriers is not just good for EEO/AA Compliance – it’s good business.
Everybody’s Working for the Weekend
Yes. Even the EEOC investigator breathing down your throat and the OFCCP compliance officer who seems to be making your job more difficult. Having worked as an EEOC investigator and having worked the corporate side of the compliance equation, I can tell you unequivocally — we all just want to do our jobs and go home. So how do you develop a healthy working relationship with government auditors while minimizing any risk to your organization?
- Think about your own job — the people who make it easy and the people who make it difficult. My mother used to tell me you attract more bees with honey — so be polite, be respectful of their deadlines (they have a boss breathing down their back too!), return their calls and if they show up for a visit, have coffee and donuts ready!
- However, that doesn’t mean roll over and play dead either. Most government auditors don’t understand how your organization functions — so if they ask you for information it’s OK to ask them what they are looking for and why so that you can provide RELEVANT information not just what they ask for. If the request is burdensome, make sure you dialogue about it, have a plan B and politely involve their supervisor and your legal counsel if necessary. Politely doing this helps you both get your job done. Becoming angry and agitated serves your organization no purpose and makes an auditor be more difficult with you. Guilty.
- Ask an auditor/investigator to put all requests in writing so that you are clear on what they are requesting. Make copies of anything you send to them and ALWAYS ask that they contact you if they see a problem, as you might have information that would further clarify a problem or concern.
I love the way you lie…
Well, not really. But you know all of those “he said/she said” situations HR folks are faced with…how in the world do you ever get to the truth? Most internal HR professionals choose the easy way out – call it a spitting contest and err in favor of the company. However, did you know that EEOC investigators are trained to make credibility assessments? And if they can do it, you can too by looking at a few things during your internal investigation:
1. Motivation – why would the complainant make something up? Was he/she denied a promotion…was there a relationship gone bad? What does the accused stand to gain by lying? Ask this straight out and probe both parties and witnesses about motivating factors.
2. Look carefully at personnel records of both parties to see if there is any history of deceit/wrong doing/etc. Look to see if the complainant is missing work due to stress over the situation.
3. Pay close attention to body language of both parties. Can they both look you in the eye and keep an open posture with you?
4. Have the story retold to you a few times to make sure it stays the same.
5. Although there is always a strong desire to contain the investigation to as few people as possible, interview witnesses. Was the story confided to anyone? Did the complainant ever look upset? Interview others in the work area, previous employees of the supervisor including those who may have left the company or the department to see if this behavior had occurred in the past.
Most inappropriate behavior occurs one on one without a witness. Most superiors know that they will be believed over a subordinate. And yes people do lie… but make sure you do your best investigation or it will only be a matter of time until the liar rears its ugly head once again.
