FMLA and an EEOC investigation

PAhr · August 2002

I recently took over the position of head of HR. After reviewing some old personel files I began to see a patern of termination while either on FMLA or soon after the employee's return (usually in cases where the employee could requalify after a few months and it appeared that they would). Although all the termintions were for valid reasons there appears to be more terminations involving FMLA than not. One of these employee's has filed a complaint with the EEOC claiming she was retaliated against for seeking FMLA relief and for filing a complaint whith the DOL, which resulted in her termination. We live in a small town and I've heard that she has made contact with other ex-employees inquiring as to the exact reason for their termination. I don't believe that anyone else has filed a complaint against the company which leads me to believe that any other ex-employee's allegations would be unfounded and irrelivant. Will we be required to turn over all files of any terminated employee to the EEOC? The company has already spoken to an attorney who never addressed what the EEOC (or her attorney) might want as far as employee files and he also believes "this woman will eventually go away" but I am not so sure. Should I start refilling the ink in the Zerox machine?

Rockie · August 2002

Better crank up the machine! It there appears to be a pattern to you, there darn sure will appear to be a pattern to the EEOC. They take a very hard look at retaliation claims. Your only saving grace would be if you have excellent documentation for each of these terminations.

Yes, they will most certainly ask you for complete personnel files. I would certainly get a labor relations attorney involved in this one. You will need some expert legal advice.

Good luck!

PAhr · August 2002

What I wonder is if the EEOC can ask for the personel files of other ex-employees since they aren't part of the complaint. She is the only person complaining. My only worry is that she will go in and say there are more just like her and then they will want to review all the files. I don't feel that legally the EEOC should be able to get all personel files when she is the only one who filed a complaint. Is that how it works or am I just wrong for thinking that?

Sunny · August 2002

> What I wonder is if the EEOC can ask for the personel files of
>other ex-employees since they aren't part of the complaint. She is the
>only person complaining. My only worry is that she will go in and say
>there are more just like her and then they will want to review all the
>files. I don't feel that legally the EEOC should be able to get all
>personel files when she is the only one who filed a complaint. Is that
>how it works or am I just wrong for thinking that?

Welcome to the wacky world of government compliance. The EEOC can and will ask for everything - including what all black females who work for the company had for breakfast six months ago last Wednesday. (Just kidding.) One of the main problems with an EEOC investigation, even if you are positive you are right, is the sheer volume of paper it generates. You probably will need two copy machines. Seriously though, I agree that you need a really good labor attorney to guide you through this, particularly since you've never experienced the joy of dealing with a government investigation. It can be really harrowing.

Good luck - and look on the bright side. This will be really good experience for you.

Theresa Gegen TX · August 2002

One thing you can always do is ask the EEOC for early mediation (before they investigate). If you think the company might want to offer this employee some money to go away or offer her a job back, it might be worth it.

Good Luck!

Don D · August 2002

PAhr: I agree with Sunny that this will be a great learning experience for you; but, so is a colonoscopy! Agreeing with Theresa, if you and the company feel you are weak you might want to approach settlement which either includes money or back pay plus getting her job back (which you do not want). I think the money you would pay to buy her off will no doubt overshadow the money you will pay a competent labor attorney to dig his/her heels in and look into this whole thing. All of the options are learning experiences and no two look alike over time. A non-front-burner-option for you: I know you are up to your belt buckle in aligators. In the very near future you may want to consider contracting with a paralegal with FMLA experience to come in and go through the FMLA related terminations and a few other things and give you a detailed report on what appears to be out of wack, if anything. You cannot do it all yourself and the paralegal is not only competent, but cheaper.

Gillian · August 2002

In this case the EEOC will ask for all the files because they are relevant to determining whether or not there is a pattern of retaliation. In most cases, the EEOC or state agencies are open to discusssions about what is relevant and what is not and will modify their requests if we will call and tell them why the humongous request includes data that has nothing to do with the issue. You do need to find out what happened in the earlier cases so that you know where you stand. Whatever you do in this case, may spread to the earlier terminations and you need to know whether you have a big problem or a little one.

PAhr · August 2002

I don't think that mediation will work because I don't (nor does the company attorney after speaking with him today) feel that the employee would accept an offer at this point. The only case I am personally involved with is this one (all the other personel files I looked through were before I started working with this company). When I began working for this company I did as told by my supervisors and I am now worried that I might take the blame due to other people's actions. Two of my supervisors have been terminated since this incident and I am now concerned that I may be next even though I only did as directed by my superiors. I have already decided to look for new employment but will I be held personally responsible because I followed orders? I don't want it on my employment record that I had anything to do with this.

Don D · August 2002

[font size="1" color="#FF0000"]LAST EDITED ON 08-23-02 AT 08:56AM (CST)[/font][p]To answer you foremost concern, my vote is that you won't be tangled in the web as far as the EEOC goes. Whether or not your company decides to jetison your position and you with it is another question. Only they know what they are scheming. But, it sounds to me like you were three people down the chain of command in HR and were performing routine functions based on specific commands from management. Unless you were making independent (wrong) judgements and taking illegal actions knowingly and on your own initiative, the EEOC will not be interested in you. Even if they were, there's nothing they could do 'to' you personally, other than suggest to the company that the complainant will be satisfied if you too are terminated. But, again, sounds like you didn't have enough shoulder stripes to interest the enemy in this one. The best move management could make is to staff the HR Manager position with an experienced (5 years) HR professional and let you remain as number two and you utilize the next year for solid HR training while you continue to polish your resume. (I notice the company attorney, the same one who did not discuss with you what the EEOC might ask for in the way of employee files and the same one who speculated that "She'll probably just go away", is the same one who now says, "There's no way she will settle." From your posts, I think he is incompetent in labor law or either is not hungry enough!

TheCol · August 2002

I spent 3 years in the Pentagon doing stuff like this, let me offer:
the EEOC has subpoena authority. They also have a backload of cases. Yours sounds like a low priority case based on age and riches of the company. I recommend "smiling compliance". Only answer the questions proferred and provide only the documents requested. Request a clarification if identifying the file is in any way difficult. An attorney to analyze the EEOC request and review your answers is good advice. The system was designed to where the respondent was not to need legal counsel but you can imagine what has evolved. Shakespeare had the answer, "Kill all the lawyers!"

Don D · August 2002

I agree with the Colonel's advice; however, I disagree with some of his comments. I don't agree with his analysis of the basis upon which the EEOC system was designed. Show me a group of Harvard graduated attorneys working for the Justice Department in 1965 who then transferred to DOL when EEOC was created who would give one iota of a thought to simplifying a government program in the employer's best interest, and I will eat my curmudgeon hat. Also, I don't agree totally with Shakespeare either. Only as it relates to the lawyers who have any sort of a Federal Pay Grade Classification. Those are the real scoundrels!

dolores · September 2002

Remember, the phrase "Kill all the lawyers" was a prelude to anarchy! Unfortunately, many employers neglect to contact their lawyers prior to making termination decisions that result in the situation with which the HR Director is faced. Then the lawyers are called in to clean up the mess. In case you haven't guessed, I am a lawyer, and one who has dealt substantially with employment law. Fortunately, the client I have now is pretty good about asking for advice before making termination decisions. And yes, I would assume the company probably will get nailed for retaliation with a pattern like they appear to have. By the way--you don't have to get a labor lawyer, an employment law lawyer will work fine.

Hatchetman · August 2002

FMLA is not within the authority of EEOC. It's the Wage and Hour Division of DOL. If there's a claim of retaliation for requesting or using FMLA then that also would be with DOL/WHD. EEOC would handle an ADA claim though and it would perhaps handle a claim of discrimination on a pregnancy disability that would have resulted in FMLA, but I don't see EEOC just handling routine FMLA complaints including retaliation. That's not within their authority.

PAhr · August 2002

Apparently the employee filed a complaint with the DOL for FMLA violatins before she was terminated so the DOL only investigated that aspect of her claim. She has since filed a complaint with the EEOC/PHRC that says she was retaliated against for filing her initial complaint. So the EEOC is also looking into that. I spoke with the investigator today and asked the same question. Their position is that they have the authority to investigate a complaint of retaliation whether the employee complained to the employer, the DOL or any other party who would look into the matter. The investigator said the issue at hand is not FMLA but whether the employee was retaliated against based on her complaint. He said that the employee has submitted documents to them (which we have recived copies of) that show she was terminated with two weeks of filing her complaint and that alone was highly suspicious. He went on to say that the DOL investigation proved that the complaint was valid and that he suspects we were aware that the investigation would not go well for us and may well have terminated her for that reason. I explained the situation with her termination and he said that the employee won her UC benefits at the hearing and that the referee had all the information to prove whether there was misconduct. If the referee could not see any misconduct then he can't fathom why he would see any. He should have just said that he is already on her side and that we are fighting a losing battle. Is there a time frame to when the investigation will be over?

Hatchetman · August 2002

Hsve him show you the legal basis for EEOC's authority to investigate the FMLA retaliation claim. FMLA clearly gives that authority to DOL. EEOC has no authority as best as I can determine. I would certsinly talk to your legal advisor on this in any case.

Sounds like EEOC has already determined that you realitated and it doesn't have any authority.

You could contact DOL and make a complaint that EEOC is investigating an FMLA issue that is not based upon a violation fo ADA or CRA and see what happens. Or refuse to provide informaiton to EEOC and see what happens. Take a look at theregulaitons on FMLA and the regulations on EEOC's area of authority. Title 29 of the Code of Federal Regulations.

Don D · August 2002

"he said that the employee won her UC benefits at the >hearing and that the referee had all the information to prove whether >there was misconduct. If the referee could not see any misconduct then >he can't fathom why he would see any".

One having absolutely nothing to do with the other, his conjecture is entirely irrelevant. State UI laws deal with entirely different fact searches and approach terminations from entirely different testing modes. Let him base his conclusions on a UI referee's conclusions though. Perhaps he's new on the job.

PAhr · September 2002

Just an update. I spoke to a rep at the EEOC and he said any complaint of retaliation for anything that goes against "public policy" can be investigated by that agency. He went on to say that terminating an employee for filing a complaint with any agency violates public policy. Can anyone give me any other specific reasons that I should tell the EEOC as to why they shouldn't be investigating this complaint?

Don D · September 2002

Can anyone give me any other specific reasons
>that I should tell the EEOC as to why they shouldn't be investigating
>this complaint?

Save your breath. The EEOC is unbridled. You have more important things to do than to joust without a lance. When the investigator gets through huffing and puffing about his jurisdiction ask him "What was the question again?"

TheCol · September 2002

Don D's wisdom, above, is correct. The handbook on how to defeat a Federal Bureaucracy should begin "don't take them head on". I recommend - as well - the approach and attitude of "how may I help you clear up this misconception? ... and thank you all for being such talented watchdogs of our valuable democracy." Their findings should provide the basis for your next pro-active efforts.

Nat · September 2002

I wasn't sure from your post if you have received the complaint documents from the EEOC or not. It has been my experience with the EEOC that when they send you a copy of the complaint they will tell you exactly what they want and that is all you should give them. Be cooperative but don't give anything extra. You also mentioned in a follow-up post, her attorney. I would not give anything to him/her except at the advise of your attorney. I would also make sure that the attorney that you are using is well versed in employment law and run the package that you send to the EEOC past him/her before you send. Good Luck!

FMLA and an EEOC investigation

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