FMLA and an EEOC investigation
PAhr
165 Posts
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?
Comments
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!
>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.
Good Luck!
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!"
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.
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.
>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?"