EEOC Threatens Enforcement Raids Through 2016: Employers Should Act Now
           The EEOC’s four-year strategic enforcement plan promises more—and more aggressive—investigations to ferret out systemic employment discrimination. Pay equity is near the top of the EEOC’s target list. The best defense to an EEOC attack is a good offense: Employers should conduct their own pay equity audits before the EEOC comes knocking.  Here are three critical steps employers should take to make the most of this defense:
1. Maximize Privilege. If set up and carried out with the right safeguards, your self-audit should be protected by attorney-client privilege, and you won’t have to disclose it to the EEOC. These safeguards are critical, because self-audits may reveal otherwise inexplicable pay disparities that an employer will have to address. To best protect your audit, you should, among other things, (1) retain outside counsel to conduct the audit, and (2) minimize internal discussion about it.
(1) In-house counsel typically wear two hats: “legal” advisor and “business” advisor. And when wearing their “business” hat, in-house counsel do not enjoy privilege. Since courts have held that audits performed for “business” purposes may not be shielded by privilege—such as audits to help an employer plan or establish salaries, or audits to test if an existing compensation system is producing desired business results—using outside counsel is a crucial component of safeguarding your audit.
(2) There often will be many HR and other business leaders with legitimate business interests in learning the results of an audit. But it is critical that such information be limited to a small control group, especially at first, before the audit is complete and its results known. An audit might show potentially discriminatory pay disparities that need to be addressed. The more that communications about the audit are shared with non-attorneys and other non-control group members, the greater the risk that problematic audit results will lose their privileged status and be subject to forced disclosure.
2. Maximize Statistical Power. A worthwhile and legally defensible audit must produce statistically reliable results. Improperly generated statistics will be meaningless and may even be harmful. Improper techniques produce inaccurate and misleading results. Insist that your outside counsel work closely with an experienced pay equity statistician who will apply proper techniques to analyze your organization’s compensation practices and the legitimate, non-discriminatory factors affecting your employees’ pay. That way, you can ensure the soundness of your audit results.
3. Maximize Lessons Learned. Pay equity audits often reveal discrepancies between protected and non-protected employee groups. Discrepancies do not mean that discrimination, much less intentional discrimination, has occurred—but they might indicate discrimination and will pique the EEOC’s interest. Be prepared to act on what you find. Before starting any self-audit, it is critical that the decision makers who must approve resources for any compensation fixes advised by the audit’s outcomes are prepared to do so. You then must be ready to follow through with any such fixes after the audit is complete. Failing to remedy known, otherwise inexplicable, pay disparities is worse than not knowing about them at all. But proactively seeking out and fixing pay disparities can be an incredibly powerful defensive tool. If the EEOC goes on the attack, you might decide to waive the audit’s privileged status and use it, and your post-audit remedial actions, to defeat the EEOC.
Source from:Â http://www.forbes.com/sites/theemploymentbeat/2013/11/04/eeoc-threatens-enforcement-raids-through-2016-employers-should-act-now/
