Documentation & EEO Related ClaimsDefense

Maryland Association of Affirmative Action OfficersPresented by:

Darah M. Okeke, Esq.

November 16, 2011

Topics

Document Discovery in Litigation

Protection of the Attorney Client Privilege and Work

Product Doctrine

Interviewing and Hiring

Performance Management

FMLA/ADA

OFCCP and ICE Updates

Internal Investigations

Internal Audits2

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Be Careful – It’s Discoverable!

Everything you write is discoverable and potentially admissible ina court or administrative proceeding.

Court rules on discovery of electronic information trump corporatepolicies on privacy.

There are harsh penalties for destroying records after a claim arises– fines and adverse inferences.

Write communications assuming someone from the outside mightread them.

Electronic Discovery in FederalCourt

Recommended Guidelines from The Pension Committee of the

Univ. of Montreal Pension Fund v. Banc of America Securities

2010 WL 184312 (S.D.N.Y. 2010):

Issue a written litigation hold

Identify key players

Ensure preservation of electronic records of key players

Suspend automatic or scheduled email deletion

Preserve electronic records of ex-employees

Preserve backup tapes when they are sole source of electronic

evidence

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Document Discovery isExpansive and Expensive

Standard Request – “Any and all documents evidencing,

reflecting, discussing, referring to, or constituting any

communication between Plaintiff and any employee or agent of

Defendant regarding _______.”

All documents under umbrella of decision-maker could be at issue.

Personal laptops, iPhones, Blackberries and cell phones included if

used for business.

Drafts count!

Your document retention policy – a double-edged sword.

The only protected communications are attorney-client privileged

and attorney work product – and not all of those are protected!

Attorney-Client Privilege

The Definition:

Communication

By a client to an attorney

Made in confidence

For purposes of obtaining legal advice

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Attorney-Client Privilege

What’s the point of the communication? If it’s not legal, it’s not

privileged

Non-privileged communications within an e-mail string may be

disclosed

The “cc” to an attorney is not always enough to invoke privilege

Confidence must exist (or be intended) at time of communication

Be careful who is present and/or carbon copied

Disclosure should be made only on a strict need-to-know basis

Pick up the phone if the issue is sensitive but not necessarily legal

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Attorney Work Product Doctrine

Protects materials prepared in anticipation of litigation/trial

Includes materials prepared by or for attorneys

Doctrine is not a privilege; may be overcome by showing of

relevance and necessity

Partial disclosure may be ordered, but mental impressions,

conclusions, opinions and legal theories are protected and can be

redacted

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Interviewing and Hiring

Documentation: Do’s and Don’ts

DO get a completed and signed application from

everyone

DO have a list of standard questions prepared in

advance

DO collect all interview notes from interviewers

and maintain in one centralized file

DO make a record of the interview (on a separate

piece of paper)

DON’T take notes on the application or resume

DON’T make notes of appearance or dress

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Performance Management

Performance documentation can be used as direct or indirect evidence of

discrimination, so remember these tips:

If you didn’t write it down, it never happened

Don’t write it unless you mean it and will do it

Formality is not important, words are

Be objective and factual: state explicitly the expectation, what the employee

did or did not do that failed to meet the expectation, and the consequence

Avoid personal commentary and statements indicating dislike (can be used

to show hostility or motive)

Keep it simple – 3 sentence rule

Document close in time to the event

Don’t worry about employee responses—this is not a documentation

contest—they have the right to respond

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FMLA General Notice

General Notice must be posted in a conspicuous place

in the workplace

Electronic posting allowed, but only if all employees

and applicants have access

Handbooks or other written materials distributed to

new employees must include the Employer’s FMLA

policy

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FMLA Medical CertificationForms

Health care providers must provide “medical facts”

Asks for specific information if intermittent leave is needed

Essential job functions— Employer should provide, otherwise

provider can rely on employee’s description of job functions

Should now include GINA “safe harbor” language

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Intermittent Leave Scenario

Steve brings you a medical

certification. His doctor

has written, “I recommend

Steve be provided with

intermittent leave.”

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Solution:

Employers can deny certifications that do not

provide sufficient information. You can insist

on details about how often an employee will

need leave and how long the condition will last.

Steve must be given 7 days to cure his deficient

certification and his employer must explain

exactly what information is missing.

ADAAA Updates –Document, document, document!

“Physical or mental impairment” is any physiological disorder or condition, cosmetic

disfigurement, or anatomical loss affecting one or more body systems, including newly

added immune and circulatory systems

“Major life activities” now include operation of major bodily functions: immune

system, special sense organs and skin, normal cell growth, digestive, genitourinary,

bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine,

hemic, lymphatic, musculoskeletal, and reproductive functions.

“Substantially limits” requires a lower degree of limitation than the standard

previously applied by the courts.

Big picture:

The regulations implement Congress’s mandate that the definition of disability beconstrued broadly.

End result - easier for an individual seeking protection under the ADA to establishthat he or she has a disability.

The primary focus is on whether discrimination occurred.

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Government Audits

OFCCP

Increased emphasis on vets and disability

OFCCP will look favorably upon vet outreach, maintaindocumentation of your efforts

Regulatory reform goal is to move away from pro forma VetAAPs to full Vet AAPs with job group analyses, availabilityrates, etc.

Fewer but lengthier audits; more one-offs rather than class audits

Increased litigation and press releases

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Government Audits

Immigration and Customs (ICE) Enforcement Program

I-9 audits are precursor to more serious action if significant violations /failure to cooperate

Potential violations: technical or substantive paperwork violations or knowing

hire/continuation of employment of unauthorized aliens

Employer has 72 hours to comply with Notice of Investigation, unless employer waives notice

(not recommended!) or ICE obtains a warrant because it has probable cause

Contents of NOI may include:

Form I-9s for current and terminated employees

List of employees with hire and termination dates; payroll data

Quarterly tax statements

Copies of SSA no-match letters

Information on use of subcontractors

Identification of persons involved in hiring and I-9 completion

Petitions for temporary or permanent visas

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Internal Investigations: WrittenSummaries and Reports

Who should write it?

Who should receive it?

Reports to the Board

Privilege

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Internal Audits: Protect YourCompany By Careful Planning and Drafting

Agree to do broad brush study, not full blown “audit;” consider limiting to

particular department/area

Study is designed to be used as a “sword and shield”

Insert legends that it’s done for purposes of self evaluation, not ultimate

conclusion

Indicate when limited funds expended, and analysis is preliminary

Draft with confidential stamps and notices

Explain when more data or further study is needed

Meet while audit is in progress so results are in useful form

Prioritize the next steps, beware of open ended conclusions

Avoid “I told you so”

Closed session distribution of final report on need-to-know basis

Number all copies and instruct recipients not to make copies; collect after review19