07 Jul Dangerous Interview Procedures Used By Atlanta EEOC Office
As many employers are aware, the EEOC is conducting more on-site investigations and interviewing more employees during investigations. Recently, the District Office in Atlanta began tape-recording statements of witnesses. Some of these tape-recordings are under oath, and at times the investigators have not notified the employer or the witnesses that the statements were being recorded.
These procedures may be quite dangerous for employers. In the event an employee files a discrimination lawsuit, the recorded statements may be obtained by the employee. An employee’s attorney will use the recordings against the company and to impeach witnesses. Since witnesses are generally not as well prepared for an investigation as they may be for depositions, inadvertent mistakes may occur. Those mistakes will be prominently played to a jury.
The result of the EEOC’s practice is that employers must be more cautious about allowing witnesses to testify. Witnesses who will be recorded must be prepared as if they are going to be deposed in a lawsuit. Employers will need to have attorneys present for more investigations in order to ensure the process is fair and to protect the witnesses and company.
It is interesting to note that the EEOC is not recording the initial statements of the charging parties. Recording employer witnesses, but not the charging party, makes the process seem unfair. In fact, overzealous investigators may use this process to aid charging parties and their attorneys.
Under the law, employers have the right to negotiate the investigation process with the investigator. The discussion should occur prior to an on-site investigation. If the investigator insists on recording statements, employers may consider refusing to participate in the process unless ordered to do so by a subpoena. Also, employers should consider having an attorney present to object to questions and ensure that the testimony is complete and accurate.
Randy C. Gepp