On April 7th the federal EEOC took a big step by temporarily suspending a primary part of their administrative process of issuing case closure documents unless specifically requested by the claimant. This includes case closed and right-to-sue notices. In general terms, an employee who files a complaint against their employer begins a process where the EEOC gathers information from both the employee and the employer and makes an initial determination of whether they believe there has potentially been wrongdoing on the part of the employer. If this is the finding, in a small number of cases the EEOC will actually represent the employee. But more often the EEOC will issue a right-to-sue letter that they can take to an attorney and initiate litigation.
The new policy is temporary and the EEOC is expected to lift the suspension when the effects of the COVID-19 pandemic have subsided, allowing the agency to resume their standard processes. The most important takeaway for employers are two-fold:
- The EEOC has not suspended its investigations, so employers involved in active matters should continue to check the Respondent Portal for pertinent updates, respond in a timely manner to any inquiries from the EEOC, and take note of the extended period of time claimants may have to file a claim with their attorney after an EEOC determination.
- The EEOC is anticipating and experiencing an increase in the number of calls and claims based on employee perceptions that they are being treated unfairly in employment decisions that are being made in response to the pandemic.
Our advice to employers is to prepare now for claims that may begin to come in soon, and especially for claims that may arise when we are past this difficult time and employees begin to return to work.
Be sure to follow The HR Investigator Blog for up-to-date Pandemic related information, as well as a soon to be released Employers Guide: Planning for Your Employees’ Return to Work.