EEO INVESTIGATIONS ARE FORMAL DISCUSSIONS

Unions reps have a right to be invited to an EEO investigator’s interview of unit employees. FLRA considers these interviews, even if done one person at a time, to be formal discussions solong as the employee has moved beyond an EEO charge and filed a formal complaint.

It does not matter whether the EEO investigator is employed by the agency or works as an outside contractor. FLRA made that very clear in its most recent decision on the issue (See NAGE and PBGC, 62 FLRA 219 (2007)) with these words.

The Respondent excepts to the Judge’s finding that the interviews were discussions within the meaning of § 7114(a)(2)(A). The Respondent asserts that the interviews concerned only the employees’ knowledge of facts concerning a formal complaint of discrimination and that no actual discussion occurred. Contrary to the Respondent’s contention, we find that the Judge was correct when he concluded that “the facts and law leave little doubt that they were[ ]” discussions. Judge’s Decision at 10. As the Judge correctly found, the interviews contained detailed exchanges of information between the witnesses and the contractor, and there need not be any debate between the participants in order to qualify as a “discussion” under § 7114(a)(2)(A). See United States Dep’t of Justice, Bureau of Prisons, Federal Correctional Inst., Bastrop, Tex., 51 FLRA 1339, 1343 (1996) (“[t]he term ‘discussion’ in the Statute is synonymous with ‘meeting’ and no actual discussion or dialogue need occur for the meeting to constitute a discussion within the meaning of the Statute[.]”

So, if you hvae not been invited to sit in on any EEO investigator interviews of unit employees, whether they are the complainant or just a witness, you should let LR know that you want those invitations in the future.