EEOC Implementing Digital Charge Response SystemPublications - Client Alert | April 14, 2016
The United States Equal Employment Opportunity Commission (EEOC) recently changed the way it handles discrimination charges. Employers and their counsel now will communicate with the EEOC through a new digital web portal. The use of this respondent portal is mandatory for nearly every employer.
While the new system will not change how employers and their counsel conduct investigations or compose position statements, it does change the way critical information is transmitted to and from the EEOC. This client alert contains our recommended best practices for all employers to avoid running afoul of the new system. For the EEOC’s questions and answers regarding the digital charge system, please click here.
Provide the EEOC With an Email Address
The EEOC will send electronic notice of discrimination charges to employers through email alone. This means that employers should contact their local EEOC office and keep an email address on file. If the company employs individuals in multiple locations, employers may need to contact multiple EEOC offices.
Monitor incoming email from the EEOC
Discrimination charges are only available through a password protected portal. Even if an employer is aware of the allegations of a charge, the charge itself and additional EEOC instructions can only be viewed by accessing the portal. Each matter will have a unique password. As a result, employers should ensure the email address on file with the EEOC is regularly monitored, at a minimum once a day. Additionally, it is important that emails from the EEOC are not routed into spam folders. (Note: automated emails from the portal will generate from “firstname.lastname@example.org”.)
Avoid orphaned email addresses
It is ideal to use a general email address for incoming EEOC correspondence (e.g., “HR@yourcompany.com”). This way, email is not automatically routed to an employee on vacation, or one who no longer works in your organization. Additionally, the email traffic of former employees should be forwarded to their coworkers to ensure no emails are overlooked.
Be conscious of deadlines
The new portal automatically sets a time to respond. While, historically, EEOC response times have been based upon the time when the charge is received, it is now automatically calculated by the portal. Since EEOC officers will also be relying on this date, it is important to treat the portal’s stated deadline as the official response date. If the portal has miscalculated the time to respond, or additional time is needed to conduct a thorough investigation, the response date can be changed by filing a request through the portal and selecting “other document.”
Designate a Legal Representative
The portal allows companies to designate a representative and provide them access to the respondent portal. It is recommended companies do this immediately to ensure that counsel receives notices and correspondence as soon as they are issued from the web portal.
Know Your EEOC Officer
Because the EEOC offers parties the option to mediate disputes, the portal may list a mediator as the only point of contact, rather than identifying the investigating officer. As a result, the only way to ensure a message is received by the investigating officer is to submit it through the portal. Any communication with the EEOC outside the portal should be memorialized by submitting a summary letter through the web portal.
Be Prepared for More Changes
The EEOC is currently in the process of rolling out “Phase II” of its portal, which may provide additional features or functionality. These new features may require additional internal procedures. Companies should work with legal counsel to ensure the portal is used appropriately and effectively.
If you have any questions regarding the EEOC’s new web portal, please contact your Kutak Rock LLP attorney or a member of our Employment Law Practice Group listed below.