Labor & Employment Law

Employees may speak to EEOC investigators without company counsel present

The EEOC and Aerotek, Inc, an employment agency, have reached an agreement under which the company is instructing its non-supervisory recruiters that they may speak with EEOC investigators "privately and confidentially, without notifying Aerotek and without the presence of Aerotek?s legal counsel."

EEOC is investigating alleged employment discrimination, and the company had previously advised employees not to communicate with the EEOC without Aerotek?s counsel present.

EEOC press release:

EEOC Resolves Preliminary Injunction Action Against Aerotek, Inc. and Proceeds with Investigation

National Employment Agency Tells Non-Management Recruiters They May Speak With EEOC Investigators Privately and Without Company Counsel Present

CHICAGO ? The U.S. Equal Employment Opportunity Commission (EEOC) announced today that it has finally resolved an application for a preliminary injunction by securing the agreement of a major national employment agency to reverse instructions which EEOC alleged were previously given to non-management employees not to communicate with the EEOC without Aerotek?s counsel present regarding an investigation of alleged employment discrimination.

In its application for a preliminary injunction filed in the U.S. District Court in Chicago on December 14, 2009, the EEOC alleged that Aerotek, Inc., the giant employment agency, had advised all of its recruiters in certain Chicago area offices not to speak independently with an EEOC investigator because, according to Aerotek, all of its recruiters were supervisors. The EEOC stated in its application it had obtained declarations refuting that contention and that Aerotek?s communications with its non-supervisory recruiters were interfering with the EEOC investigation of alleged discrimination at Aerotek (EEOC v. Aerotek, Inc., N.D. Illinois No. 09-cv-07740, J. Conlon, 1/19/2010).

An evidentiary hearing on the EEOC application began on January 12, 2010, before U.S. District Judge Suzanne Conlon of the Northern District of Illinois in Chicago. However, after the EEOC?s first witness?an EEOC investigator?the hearing was adjourned to permit the EEOC and Aerotek to attempt to negotiate a voluntary resolution. As a result of these negotiations, Aerotek agreed to advise its non-supervisory recruiters who had received its earlier communication, in part, as follows:

?You may be contacted by Mr. Eric Lamb or another member of the Chicago EEOC in connection with an ongoing investigation of a complaint of discrimination. Please be advised that in your current role at Aerotek it is your right to speak, or not to speak, with the EEOC. Should you choose to speak with the EEOC, you may do so privately and confidentially, without notifying Aerotek and without the presence of Aerotek?s legal counsel. At no time will any adverse action be taken against you by Aerotek based on whether or not you choose to speak to the EEOC.?

Upon reaching agreement with Aerotek the EEOC filed a motion seeking leave to withdraw its application for preliminary injunction which was granted by Judge Conlon on January 19. Also on January 19, Aerotek?s attorneys advised the EEOC that the above communication would ?be sent out [January 20] to the non-supervisory recruiters in [Aerotek?s] Rockford, Schaumburg, and Crystal Lake, [IL] facilities who were previously advised that communications with EEOC were to be through counsel.?

EEOC Regional Attorney John Hendrickson in Chicago said, ?Responsible employers understand that they have nothing to gain by attempting to interfere with EEOC investigations. Interfering employers frequently end up only shooting themselves in the foot, and the EEOC investigation goes forward in any event. The controlling principles are clear: The law permits the EEOC to speak directly with non-management employees outside of the presence of employers and their counsel, and the law protects the employees who speak with the EEOC from retaliation. When those principles appear to be in jeopardy, the EEOC will take appropriate action.?

Aerotek, with corporate headquarters in Hanover, Md., states on its web site that it has over 150 offices in the United States, Puerto Rico and Canada.

The EEOC investigation of Aerotek is being managed by EEOC District Director John Rowe in Chicago. Supervisory Trial Attorney Diane Smason and Trial Attorney Laura Feldman are on the EEOC litigation team.

The EEOC's Chicago District Office is responsible for processing charges of discrimination, administrative enforcement, and the conduct of agency litigation in Illinois, Wisconsin, Minnesota, Iowa and North and South Dakota, with Area Offices in Milwaukee and Minneapolis.

The EEOC is responsible for enforcing federal laws prohibiting employment discrimination. Further information about the EEOC is available on its website at www.eeoc.gov.

Full post as published by Ross' Employment Law Blog on January 25, 2010 (boomark / email).