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3 ways to avoid restricting employees’ access to the legal system

It’s never easy for employees to report discrimination, harassment or retaliation. But it becomes even more difficult when additional barriers are created by employers.

Recently, the Equal Employment Opportunity Commission (EEOC) released its Strategic Enforcement Plan for 2017-2021. Preserving and protecting employees’ access to the legal system is one of six focus areas in this plan.

This enforcement initiative underscores the importance that employers should not prevent or discourage employees from exercising their rights under the various federal, state or local employment statutes that are designed to protect them.

Here are three ways this initiative will guide how your company can ensure compliance and promote a fair workplace.

1. Avoid overly broad employee agreements

The EEOC’s intent is to stop employers from unknowingly or unfairly waiving employees’ rights. Thus, it prohibits employers from enticing or forcing employees into agreements that restrict their rights under the law.

For example, you cannot require employees to waive their access to certain legal proceedings such as filing a claim with the EEOC.

In recent years, some employers have included provisions in their employment documents that mandate arbitration to resolve any employment-related complaints or grievances. Typically, the EEOC objects to arbitration provisions when they’re mandatory because the matters are heard by one decision maker whose decision is final. The EEOC sees this as something that might limit an employee’s access to the legal system.

Some arbitration provisions allow employees to opt out of participating in arbitration as a resolution to their concerns. The EEOC identifies such opt-out provisions as more fair to employees, as the employee is able to choose whether to waive his or her access to the courthouse.

Likewise, employers cannot prohibit employees who sign separation agreements from filing charges of discrimination, harassment or retaliation in exchange for severance benefits.  While a separation release might halt the ability to collect on certain damages, employers cannot release employees from the ability to file a claim. A separation agreement should include a statement such as, “While you’re signing a separation and release, this does not release your rights to file claims with the EEOC.”

In any case, overly broad waivers, releases or mandatory arbitration provisions may not protect your business. If these documents end up in litigation, all or part of the agreements may be deemed unenforceable.  Work with legal counsel who specializes in employment law to create any such documents.

2. Ensure proper maintenance of applicant and employee data

The Department of Labor has established certain record-keeping requirements that ensure that if a person files a discrimination or harassment claim, relevant records to his or her claim are maintained for a minimum of one year, as long as a legal proceeding has run its full course (should a legal action occur).

When a charge is filed, employers are required to preserve certain relevant evidence (along with any additional data available) until after the final disposition of the legal matter. These requirements allow the agency to thoroughly investigate the claim, while also ensuring that the investigation on behalf of the claimant is fair.

Employers are required to not only maintain records on employees, but also job applicants. Some applicant data – like race and/or sex – is offered on a voluntary basis to employers. However, be aware that if this information is collected in the application process, it must be maintained for the requisite one-year period of time so it is available for any claims filed during that time. Those records could also be the subject of a legal hold and may be subject to longer hold periods depending on the legal action and the records hold requirements.

Once an applicant becomes an employee, the EEOC will assume that you have collected more data on that individual. Therefore, as a best practice, you should always consistently maintain all relevant employee information for no less than the one-year period beyond termination. Employers who have failed to maintain records for the requisite periods of time are subject to legal scrutiny and could face penalties for failing to maintain records related to a legal action.

More importantly, you should consider that not having certain records could be viewed as suspect. A judge or jury might assume your business is trying to hide something, and the odds of winning a case could be weighed against you.

Keep in mind that record keeping may also be beneficial to you, in that, historical records may support your actions and possibly show your consistent, fair processes are applied to all employees uniformly. At a minimum, having appropriate records will help to evaluate the strengths and weaknesses of a potential claim.

3. Prevent significant retaliatory practices

Too often, employers try to limit where or how employees can bring forward their workplace concerns.

For example, an employer might say, “Any complaints should be made in-house.” Or, “All complaints should be given to your direct manager (or some other single point of contact).”

Having only one method to make a formal complaint can create a fear of retaliation, which can prevent employees from filing a complaint. The EEOC frowns upon this.

For example, if an employee’s manager is the offender, the employee most likely wouldn’t be comfortable filing a complaint with said manager. Therefore, the company needs to have other ways for the employee to report an issue.

A strong open door policy with a coinciding internal complaint process can provide employees with several different avenues to bring forward complaints. For instance, employees would have the option of taking complaints to their manager, any member of management, an HR specialist or a complaint hotline.  Employees should have the choice about where and who they bring their complaint to and not be limited in how or where their complaint is addressed.

Federal and state governments have all recognized the importance of having open door policies and uniformly informing employees of those policies.

Any manager who receives a claim of discrimination or harassment has an obligation to take all claims seriously. Companies have a legal obligation to ensure a prompt and thorough investigation is completed.  Because these investigations can be challenging and held to question, ensure the investigation is done with the help of legal counsel or a trained HR professional.

Additionally, written anti-retaliation and anti-harassment policies should be included in your employee handbook to ensure that all complainants and witnesses are aware that once a concern is brought forward, there are assurances that the company does not support any form of retaliation.

Stay in compliance

As an employer, it’s of utmost importance that you recognize when you find yourself in grey HR compliance areas. If you find yourself in unfamiliar territory as you handle employee agreements, applicant and employee data, or complaint and retaliation processes, consult with legal counsel or a well-trained HR specialist.

Want more insight on how to protect your business? Download our complimentary e-book, Employment Law: Are You Putting Your Business at Risk?