Q. A former employee recently filed a complaint against my company with the EEOC. He is alleging race discrimination. As part of its investigation, the EEOC will be coming to our offices to interview employees. Do I have to make these employees available? Can I sit in on the employee interviews?
A. While you aren’t required to voluntarily make employees available at your office in response to this “informal” request from the EEOC, there are several reasons that you should cooperatively do so.
First, this informal request is the first step the EEOC takes under its regulations to interview witnesses, but if either the employer or the witnesses themselves don’t cooperatively make employees available during the investigation, the EEOC is empowered to issue subpoenas for them to appear to be interviewed.
Second, it is prudent to cooperate and accommodate the EEOC’s request for information and witnesses.
Employers and their attorneys are customarily not allowed to sit in during interviews of nonmanagerial employees. Indeed, an EEOC investigator can simply telephone an employee directly or visit the employee at home or another convenient place away from the job site.
While some employers hesitate to admit EEOC investigators to work premises, the EEOC is allowed to inspect job sites by exercising its subpoena power or by obtaining “informal” permission from the employer.
Additionally, some workers are apprehensive about speaking to the EEOC. Allowing the interviews to take place at work will permit nervous employees to seek advice, clarification and encouragement from managers.
While the EEOC may allow a company manager to be present during the interview of a managerial employee, that doesn’t happen often.
A better practice is to have the company’s employment attorney present to represent the managerial employee during the interview.
- Without 'ultimate employment action,' it's hard to make discrimination claims stick
- Employers—Not employees—Choose ADA accommodation
- What are the pros and cons of requiring staff to sign mandatory arbitration clauses?
- Require special credentials for foreign hires? Tell applicants
- Are we courting trouble by denying accommodations to pregnant employees?