January 6, 2017
Debra Finney is the United States Equal Employment Opportunity Commission’s Memphis District Outreach & Education Manager. Her 35 years of experience with the EEOC as an Investigator and in her current position make her uniquely qualified to discuss the laws enforced by EEOC.
Finney’s jurisdictional areas include Arkansas, Tennessee and North Mississippi. Finney says that she enjoys her position as Outreach and Education Manager because she travels the district, and the country, interacting with stakeholder groups. Finney not only educates the audience on the laws enforced by EEOC but provides practical application and tips.
A popular speaker at many conferences in and outside of the Memphis district, Finney engages her audiences with a casual, yet informative, style.
In addition to her duties in the Memphis District, Finney is a frequent speaker at national training conferences and is a trainer on national training projects, both
internal and external. She also says that her many travels for work have afforded her an opportunity to explore two other passions; BBQ and blues, which conveniently go hand in hand. Up In Your Business is a Radio Show by FlagandBanner.com
[0:00:03.2] TB: Welcome to Up in Your Business with Kerry McCoy. Be sure to stay tuned till the end of the show to hear how you can get a copy of this program and other helpful documents.
Now, it's time for Kerry McCoy to get all up in your business.
[0:00:19.1] KC: Thank you Tim, I’m Kerry McCoy and it’s time for me to get all up in your business. For the next hour, my guest and I will be having a conversation of curiosity and storytelling, you may be asking yourself, what makes this lady qualified to do this. I’ll tell you, experience. 40 years ago with just $400, I started Arkansas Flag and Banner. Since then, it’s morphed into simply flagandbanner.com with sales nearing four million, that’s worth saying again, I started Arkansas flag and banner with just $400 and today we have sales nearing four million.
I started by selling flags door to door then went to telemarketing. Next mail order and catalog sales and today we rely heavily on the internet. In addition, over the last 40 years, I’ve navigated Flag and Banner through two recessions and two wars. When people find out I’m that woman who owns Arkansas Flag and Banner, they often say, “Oh I have heard about you and began asking me business advice.”
I amaze even myself with all the knowledge I’ve gained so be prepared to hear the truth, it’s not always easy to hear.
For instance, you may not want to hear this. In business, there are very few overnight successes. Starting and owning a business takes persistence, perseverance and patience. When I started Arkansas Flag and Banner, I supplemented my income by waitressing.
All while I pedaled my flags door to door. After nine years, did you hear me? Nine years of working a part time job, the company began to grow and solely support me. My first hire was a book keeper.
My first expansion was to begin the manufacturing of custom flags. The next decade ushered in desert storm war. Flags were scarce so a screen printing department was hurriedly built to meet customer demands.
In addition to sales and manufacturing, Flag and Banner now has a purchasing department, a shipping department, technology, marketing department, call center and a retail store and I spearheaded each of their development.
My experience is deep and wide and my advice is free, I hope you’ll take advantage of this unique opportunity by calling or emailing me on today’s show. But before we start taking calls, I want to introduce to the people at the table. We have Tim Bowen, our technician, who will taking your calls and pushing the buttons. Say hello Tim.
[0:02:36.1] TB: Hello Tim.
[0:02:37.5] KM: My guest today is Debra Finney from the Equal Employment Opportunity Commission, better known as the EEOC. Currently, Debra travels the south educating people on the very complex issue of hiring and firing personnel and doing it both ethically and legally. Her 35 years of experience with the EEOC as an investigator and now educator maker her a uniquely qualified to discuss the laws surrounding employment.
Her casual yet informative style also make her a frequent speaker at national conferences. Debra’s areas of jurisdiction are Arkansas, Tennessee and north Mississippi. Her many work travels have afforded her a unique opportunity to enjoy her two passions which are barbeque and blues.
Each Friday afternoon, right before the show, Debra hosts her very own KABF radio show called blues house party and she’s been doing it for 25 years. Here to provide us with practical applications and tips on employment is EEOC, district manager, Debra Finney.
[0:03:53.2] DF: Hey, thanks for having me.
[0:03:54.9] KM: Welcome to the table Debra.
[0:03:56.8] DF: Sure.
[0:03:57.2] KM: You know, every employer has a dreaded fear of the IRS and the EEOC phone call.
[0:04:05.7] DF: Right.
[0:04:06.3] KM: Can you put us at ease?
[0:04:08.3] DF: I can try. I like to – when I go out and do presentations, I like to say I’m one of the few people in the agency that can say I’m from the government and I’m here to help and mean it. As the outreach and education manager, I’m not involved with investigations any longer and I am a resource for employers if they have questions and have situations that they want to run by someone.
I you know, I get a lot of calls from employers and likewise, I help advocacy groups too, just the general public.
[0:04:43.8] KM: Do you want phone calls?
[0:04:44.9] DF: Yes, if you have a question. Because the way I view my position and our intent with doing outreach and education is it’s preventative. We are trying to prevent discrimination from happening by educating people as to what they can and can’t do or what they should and shouldn’t do.
A lot of times, people just don’t know what they’re supposed to do.
[0:05:04.8] KM: That’s right, I think most of the people when they make mistakes, they make it in ignorance.
[0:05:09.9] DF: I agree, I mean, sure, there’s deliberate discrimination, it exist, it’s out there, we see it. But I think a lot of businesses particularly small businesses that may not have an HR department, they don’t have an attorney on staff, they don’t even have an attorney on retainer, they may have started so small that the wife or the sister in law is now the HR person.
[0:05:30.7] KM: Yeah.
[0:05:31.4] DF: They just don’t know and that’s not a defense if a charge is filed against them, that’s not going to be a defense so that’s why we want people to learn, we want them to know what’s required.
[0:05:42.7] KM: The EEOC is in place specifically for what?
[0:05:48.4] DF: To remedy and stop employment discrimination. Based on race, sex, religion, national origin, age, color, disability, genetic information.
[0:05:58.0] KM: Good list.
[0:05:59.5] DF: It expands.
[0:06:00.4] KM: You sound like you’ve said that a few times.
[0:06:01.6] DF: Just a few.
[0:06:04.3] KM: I think we may get a lot of people calling in asking you questions about both employees and employers. You told when I met you that you loved your job and you found it rewarding.
[0:06:14.8] DF: I do.
[0:06:15.6] KM: What is it about your job you like?
[0:06:17.2] DF: Well, as an investigator.
[0:06:19.4] KM: Which is what you did before you were an educator.
[0:06:20.6] DF: For 23 years, yeah. I’m naturally inquisitive which is a way of saying I’m nosey. I loved doing investigations and putting the puzzle together and seeing if the law was violated and remedying if it was. Moving on to education has been very rewarding because I get out and I meet so many different people, I meet business owners, small business owners, the immigrant community who were starting their own businesses and have questions.
Then on the advocacy side, we work with our advocacy groups too you know, for whoever they may represent, women’s groups, NAACP, groups like that. To educate them as well because we want people to know what their rights are and what isn’t covered because a lot of people seem to think that everything unfair is against the law and it’s not.
I mean, the law’s pretty specific you know?
[0:07:19.8] KM: I think that’s true because sometimes someone will leave Arkansas Flag and Banner, they’ll be mad at me for whatever reason and they’ll say, “I’m going to call a lawyer” and I’ll say, “For what?” And they’ll go, “You were mean to me” and I go, “That’s not against the law.”
[0:07:30.4] DF: Right.
[0:07:31.5] KM: And I’m never mean to anybody but you know, if they’re leaving, they’re usually not happy about something.
[0:07:37.6] DF: I’ve had to tell people many times as an investigator, when you’re counseling individuals who come in, to talk to you about a work situation or to file a charge and they haven’t identified anything that lends itself to believe that it would be something that would fall within what we enforce.
They say, but it was unfair and it’s like, you know, unfair isn’t unlawful, unfair is unfair. But it’s not necessarily unlawful and there’s law that legislates fairness, can you bullet, what is unlawful? Can you make a bullet list of what is unlawful?
[0:08:08.4] KM: Yeah. Any employment action from pre-hire, the application process, to even after you’re terminated which could include references, that is based upon a person’s race, sex, religion, national origin, age, 40 and above, color, disability, genetic information or in retaliation for participating in EEO activity for filing a charge or complaining of discrimination or being a witness.
[0:08:38.1] KM: Any action you do that you can prove was done maliciously because of one of these topics you just listed is unlawful?
[0:08:49.7] DF: Yes. But there’s also a provision of the law where you may have a facially neutral policy and you’re not doing it with the intent to discriminate that you do. Let me give you an example.
[0:09:02.8] KM: Okay.
[0:09:03.7] DF: Let’s say you have a policy where you want everyone who works for you to be clean shaven. No beards, no moustache okay. That policy could have an adverse impact on a particular group of people and a couple of different ways, someone because of their religion may need to wear a beard or wears a beard or there is a condition that affects men of color, pseudo folliculitis barbet which most people just call shaving bumps and the solution is they wear like a quarter inch beard.
There’s been cases over the years that we’ve pursued, police departments, fire departments, things like that that have had that requirement that you not have a beard and if someone has PFB and the department says no, our policy is clean shaven, then that creates – their intent is not to discriminate against someone, it’s a facially neutral policy but it ends up with the result of discriminating against someone.
[0:10:04.6] KM: Because of health problems or religion.
[0:10:06.4] DF: Right. But it was frequently the adverse impact theory goes to race, because it was only men of color who had that. There was even prior to the disability act, medical didn’t even come into play.
Interesting thing sometimes with height and weight requirements, just different things that can have an adverse impact, height requirements can have an impact on a woman, on women or people of particular cultures, you know.
[0:10:34.4] KM: It’s a great opportunity for people to call in and ask questions of Debra because I know that I got the dreaded call last year from the EEOC, I didn’t even know what it was and I had to go do through the investigative process and it is the scariest thing I’ve ever done and I knew that I didn’t do anything intentional but I did feel like I had to defend myself.
In the process, I learned some things I should have done different in my processes. For employers, to protect themselves, when you go to teach, what’s the first thing you teach.
[0:11:08.5] DF: As outreach and education, we have a couple of different things we do, we go out and talk to sherm groups, employer groups, chambers of commerce, any kind of group that wants to hear from us, we’ll go out and talk to them. Whatever the topic is they want.
But we also do paid training for employers, they can hire the EEOC Training Institute to come in and train like managers or employees and do training. Then we also have annual seminars so like we have one, every year, this year we’re having it in Hot Springs on August the 17th at the Hot Springs Convention Center and it’s a day long, training conference, there’s six workshops, you choose three to go to and there’s to plenary sessions.
[0:11:47.2] KM: That’s perfect.
[0:11:48.1] DF: It is.
[0:11:49.6] KM: Are you teaching it?
[0:11:50.7] DF: I typically run it so I don’t get – I did get to teach one class last year.
[0:11:57.1] KM: But you’ll be there running the show.
[0:11:58.0] DF: I run it but we have like our district director, our regional attorney, our managers, we have them there teaching and it also allows employers and the representatives to meet the people that they have to interact with at the EEOC.
Maybe it’s not quite so scary when they get a charge because they’ve met someone or they have a resource now, someone they can call if they have questions but it is scary if you don’t know what it is or you just have heard of it but haven’t interacted with the EEOC and you get a charge. And now we’re doing charges digitally.
We notify you by email that you have a charge and we’re doing everything paperless which is kind of neat. You upload your data but if you’ve been through the process, you know we typically request information, we may make a – what we call a request for information which is a bunch of questions that we ask you typically about your business, your employees, depending on the type of charge, I may ask you to race of the employee, the sex of the employees, we may ask pay information. We may ask who you fire you know?
[0:12:59.9] KM: You ask to write a written description of what happened.
[0:13:02.6] DF: Position description. Because that’s your opportunity to state your side of the story because at that point, all we have is the charging party side of the story, they’ve come and presented their story to us and file a charge. Now, we’re getting your side of the story.
[0:13:18.8] KM: Well I did not hire a lawyer and I’m not sure if that was the right thing to do but I felt like – I didn’t have anything to hide and I didn’t hire a lawyer and later was told that maybe it was not the smartest thing to do that you should always hire a lawyer. What do you think about that?
[0:13:33.5] DF: Did a lawyer tell you that? That would be my question.
[0:13:40.3] KM: That’s a good question.
[0:13:41.5] TB: Well put.
[0:13:41.9] KM: You know, I think maybe a lawyer did tell me that actually, now that you mentioned it. I didn’t and everything turned out fine but I wonder if I was just lucky or if –
[0:13:56.5] DF: Your evidence is your evidence okay? You’re not required to have an attorney, some people do want to have an attorney and that’s fine, a lot of people do have attorneys and a lot don’t you know? It just depends.
As long as you’re maintaining the record you’re supposed to maintain.
[0:14:10.3] KM: But I wasn’t, and most people aren’t.
[0:14:12.8] DF: Well, a lot of small businesses aren’t, right.
[0:14:14.5] KM: It’s race objective and it’s he said, she said and did you document it, well no, well, there’s your problem and I’m like, so, if you don’t document it, the default falls on the company.
[0:14:25.5] DF: Well, if you can’t disprove the allegation.
[0:14:27.5] KM: If you can’t disprove – yeah.
[0:14:28.9] DF: That’s why documentation is important.
[0:14:31.5] KM: I knew I should have been but I’m busy, when employees always get upset is when the stress level’s high and the stress level is always high when you’re in your busy season. That’s always when it is and that’s when you don’t have as much time to dot your I’s across your T’s as you should be.
[0:14:47.4] DF: Well, I had an employer tell me that, it was the fire department, and they work 24 hour shifts., the city attorney said that there was a lot of down time and he felt that the down time – because they’re there for 24 hours and they’re not fighting fires for 24 hours and there are so many hours you can clean the truck and ready the equipment that it gave them a lot of time to think of things to complain about.
There could be two sides to that story Kerry. We’re real busy and everybody’s stressful where we don’t have enough things to do.
[0:15:20.7] KM: That’s hilarious.
[0:15:21.6] DF: Typically for small businesses. I think it’s important for me to stress to that title seven which is the law that started EEOC, title seven of the Civil Rights Act of 1964, founded the EEOC, we opened in ‘65, we opened with a back log and we have maintained a back log of charges ever since okay?
We have lost a lot of people, our agency is short staffed you know? We hire as we can, I’ve worked at the agency for January it’ll be 36 years and the highest number of employees we’ve had was like 3,200 across the country and we’re down below 2,500.
[0:16:00.9] KM: Wow.
[0:16:01.7] DF: That’s how it is. When we can hire, we try to fill investigative staff because that’s first and foremost for us you know? And attorneys. But the law, Title Seven and the ADA which is the Americans with disability’s act, applies to employers with 15 or more employees, 20 weeks out of a calendar year.
[0:16:22.1] KM: If you have less than 15 employees, you’re not –
[0:16:25.1] DF: The law doesn’t apply to you.
[0:16:26.6] KM: Okay.
[0:16:27.2] DF: We’re trying to reach those businesses that don’t have 15 because we want businesses to grow and we want them to be ready, to be prepared so that when they do, they know what they’re doing you know?
[0:16:40.4] KM: If they come to your seminar in August.
[0:16:42.5] DF: Yes.
[0:16:42.9] KM: Do you hand out forms that they can use?
[0:16:45.8] DF: They get our eight volume technical assistance manual for employers which is written in plain English, it’s really good which covers all of our guidance, all of our law, everything. They get that as part of it and then of course all the materials related to the seminar.
[0:17:01.3] KM: Is there actually a sheet on this, this is a sheet you should use when you write up your employee inscription?
[0:17:06.9] DF: How to write?
[0:17:07.7] KM: Yes.
[0:17:07.9] DF: Well, we don’t tell you this is a sheet you should use but you know, what we tell you is that you need to be consistent in your record keeping and you need to document. EEOC has a small business initiative.
[0:17:19.9] KM: There you go, that’s the word we’re looking for.
[0:17:22.5] DF: We like to go out and talk to groups, particularly where there’s small businesses, we work frequently with the small business development center, Jonesborough, we go up there and talk, they have us up there, we’ve done some with Little Rock, we’ve done some with Monticello, we like to go out and talk to small business owners because we want them to know what the law is.
And to be ready you know? But, even though, you have to have 15 or more, the equal pay law, you only have to have one employee and you’re covered by that.
[0:17:52.5] KM: Say that again?
[0:17:53.2] DF: Equal Pay Act? Because your employee can compare themselves with the person who held the job before them in terms of pay. If they feel like they’re being paid less wages because of their sex.
[0:18:05.5] KM: I see, you can compare, one of the ways that you do, your investigative studies to see if the pay is less.
[0:18:12.5] DF: If a person files an equal pay claim with us, The requirement is that the employer have one employee, that’s it. They can compare themselves to the person they replace so they could say the person doing the job before me made 40,000 a year and they hired me at 36 because I’m a woman, they’re paying me 36,000 a year.
You know, we can investigate that.
[0:18:31.9] KM: All the other laws that you investigate have to be businesses with 15 or more people?
[0:18:36.7] DF: Except for the Age Discrimination Employment Act and you have to ask –
[0:18:39.6] KM: Another one. There’s two.
[0:18:40.7] DF: There’s 20 or more.
[0:18:42.4] KM: I see. When you go out to teach a seminar, what are your main topics that you talk on?
[0:18:48.6] DF: It depends. When we’re requested to come speak, most people have a couple of topics they want us to talk about.
[0:18:55.2] KM: When you go to your seminar in August, what are you going to talk about?
[0:18:57.0] DF: We will talk, we typically talk about what our strategic enforcement plan, enforcement priorities, we’ll be this year and that’s where we tell the employers, hey, this is what we have published as our six national priorities and this is where we will focus the microscope on employers.
[0:19:14.4] KM: How do you pick those topics, are they, ones with the most problems that keep coming up the most or are you just randomly go through them –
[0:19:21.2] DF: No, this is determined by headquarters and it’s probably based on the types of issues we’re seeing, the emerging trends, things like that. The most frequently filed charge with our agency is retaliation complaint. In 2010 I believe and I’m going from memory.
It bypassed race discrimination as the most frequently filed charge.
[0:19:42.1] KM: I’m surprised.
[0:19:44.0] DF: Well, I’m not.
[0:19:45.5] KM: Really?
[0:19:46.1] DF: No. Because a lot of times, people have an issue at work and they may file a charge and they may file a grievance, they may complain about discrimination and it’s hard sometimes if you’re a manager, business owner or supervisor to be called a racist, a sexist, you know, someone who discriminates based on age or.
It’s hard for someone to make an allegation against you and that human nature response is what?
[0:20:15.5] KM: To fire you.
[0:20:16.1] DF: To get even right?
[0:20:17.2] KM: To get even.
[0:20:18.0] DF: Because you’ve said something about me.
[0:20:20.0] KM: Yes.
[0:20:21.4] DF: We see retaliation and I tell people, you can have what I would call a mediocre, lukewarm initial charge of discrimination filed with us and then the employer takes an action because of that and that retaliation claim is red hot.
[0:20:36.4] KM: Well sure.
[0:20:37.2] DF: That’s kind of silly.
[0:20:38.3] KM: Yeah.
[0:20:39.0] DF: Do you see people that file claims with you that are reoccurring, claim filers, they’re kind of working your system.
[0:20:46.0] KM: Sure, frequent filers.
[0:20:47.1] DF: Frequent filers.
[0:20:48.9] KM: What do you do about those? Do you have to investigate every one of them or do you red flag them and say.
[0:20:54.2] DF: No, we don’t not investigate because they filed a charge before I guess, we’ve learned a lesson in that and that we had individuals who filed many charges but that next one they filed, there actually was something. Just the mere fact that they file all the time doesn’t mean that something hasn’t happened to them.
But we had such a back log of cases, I can remember back in the late 80’s and early 90’s, having probably 125 cases assigned to me which is very difficult to investigate because you had to investigate everyone like beginning to end, even if you knew the end result was not going to be a violation, you still had to do an investigation.
Your backlog would sit two years sometimes before you could get to it and it was really frustrating and hard because after two years, people have moved, people have moved on, witnesses don’t remember things, employers sometimes, when you're relying on witness testimony, don’t remember things.
The person who filed the charge doesn’t remember –
[0:21:57.0] KM: Could she drop it or he drop it or once it’s –
[0:21:59.9] DF: They can, but you know, that’s rare, that someone drops a charge.
[0:22:04.8] KM: Well, after they cool off maybe or found another job or moved on.
[0:22:07.9] DF: Sometimes they’ve work out something with the employer and withdraw the charge, that happens too. In 1996, we implemented across the country and one of the things the best thing I think this agency has done was implemented what we call priority charge handling procedures.
We use them to this date and it’s a refocus, it’s a big push right now in that we can’t investigate every charge.
[0:22:32.8] KM: You can or can’t?
[0:22:33.6] DF: Can’t, we don’t have the resources. We make a decision when that person comes in, if they file because everyone can file, we can’t ever tell anybody you can’t file and charge, we can advise them that what you’ve told us doesn’t appear to be a violation.
Or it’s untimely, you haven’t met the time requirements in getting in, they can still say I want to file. We can dismiss that charge at any time during the process if we don’t think number one, if there’s no jurisdiction, we’re going to dismiss it. Number two, if we don’t think it’s going to result in a violation and number three, if they’ve given information that what we call self-defeats their charge, you know, it defeats their own claim.
We can eliminate charges when they come in the door which was kind of weird for employers when we started doing that in 96 because they were used to getting a notice of charge and not getting any kind of closure document and they were getting a notice of charge enclosure document in the same envelope and they were freaked out.
They’re used to it now and you know, we vary in Little Rock, the Little Rock area office serves all of Arkansas, they run between 25 to 35% depending at whatever point in time you’re looking at it. In the charges they actually dismiss on the front end.
[0:23:46.1] KM: Really, that’s a lot, that does free you up a lot of it, it’s very liberating too, you’re like, I’ve got some power. You said something about if it doesn’t meet the time requirement, what does that mean?
[0:23:57.9] DF: Under Title Seven and the Americans with Disabilities Act. You have 180 days to file a charge in Arkansas. From the date of discriminatory action. If you were fired, you would have 180 days from the day you were fired.
If it’s an ongoing situation, for example pay, you’re being paid less wages and you’re still working there, each paycheck is a new violation date. You have 180 days but each paycheck is continuing. Under equal pay, you have two years, under age, you have two years.
[0:24:31.2] KM: I always hire people under these 90 day probation. Is that a real thing or have I made that up in my mind?
[0:24:37.1] DF: A lot of people have probationary periods. Some people have 30, some people have 90, some people have 60, federal government I think you’re like first year, your entire first year is probationary. It just you know –
[0:24:48.9] KM: How does that –
[0:24:49.7] DF: There’s no law that says you have to have. Basically, I think what a lot of people in terms of probationary and how they use it is, if you’re an employer, let’s say you have a progressive disciplinary policy that you use.
And it’s like your first infraction of whatever, you get an oral warning. Your second, you get a write up. Typically they don’t apply those, you are not subject to those in your probationary period. If you do something and we don’t want to here, we’re not going to follow our policy as typically how that happens.
[0:25:17.4] KM: And so if they came and they’ve only worked for me for 90 days and they felt that I was unfair and they came to the EEOC to talk to you and it was within the 90 day time period, would you tell them that they didn’t have a case?
[0:25:30.2] DF: No because they can say – I mean they can still allege that whatever action you are taking or whatever treatment you did was because of race, sex, religion, national origin, age or color. Your probationary period doesn’t affect whether or not there is coverage.
[0:25:47.4] KM: So I still need to write them out in the first 90 days.
[0:25:49.9] DF: No, you don’t have to. Let me give you an example of cases I’ve seen where an employer has a probationary period and you’re not subject, you are not covered by their progressive disciplinary policy for attendance okay? And their policy is one that your first time not coming in or coming in late. You get a warning, your second time coming in late, you get a write up so it’s progressive but typically for a probationary employee, you don’t get the privilege of that okay?
You don’t get the privilege of being covered by that policy until you come off of probation. So alright, they come in late, you say something to them, “Hey you are still on probation you’re coming in late” whatever. They come in late again, you’re like, “You know I’m done” alright fine, they’re on probation but they come to EEOC and say, “Hey, Joe that was hired the week before me was on probation and he is come in late three times and they haven’t let him go” so now there’s that –
[0:26:46.9] KM: Well now it’s all hearsay.
[0:26:48.3] DF: Well it may not be. I mean if he’s still there –
[0:26:50.5] KM: But how would you prove it that he came in late?
[0:26:51.4] DF: Well employees know what other employees know.
[0:26:55.5] KM: But how would the EEOC know that the employee could be lying to the EEOC.
[0:27:01.4] DF: The employee could be lying but –
[0:27:02.5] KM: So how would the EEOC validate their claim if there’s nothing written up because of them were in their probationary time, one of them says the other one is coming in late because they love to rat each other out but it’s not true.
[0:27:17.8] DF: Okay, well then if you write back and say it’s not true, Joe didn’t come in late then if you do clocking in and out we are going to look at time cards. If you don’t then we will possibly interview other employees because employees know. Trust me, employees know somebody’s getting something that they don’t think they are getting.
[0:27:36.3] KM: Right, so you do it through an interview. You come in and do interviews.
[0:27:41.2] DF: Yeah, sure it could be corroborated by interviews.
[0:27:44.2] KM: So I’ve been thinking all these years that if they are in the 90 day probationary period where for some reason we’re right to work state and that you could fire people without having to document it and do all of these.
[0:27:56.1] DF: You could fire individuals for any reason except for a discriminatory reason. So yes, it’s a right to work state and you have the right to terminate someone with or without a write up if that’s what you choose to do but you don’t have the right to terminate someone because of race, sex, religion, national origin.
[0:28:14.4] KM: Oh I see what you’re saying, so even if somebody else came in and they were both coming in late and –
[0:28:22.3] DF: You let one person get away with it and –
[0:28:24.4] KM: And one person didn’t.
[0:28:25.7] DF: And the reason was because of race, sex, yeah.
[0:28:28.6] KM: And the reason was which would be extremely hard to prove with.
[0:28:30.6] DF: It could be. I mean yeah, you could make a decision that there’s no explanation other than the difference in sex or the difference in race.
[0:28:38.5] KM: So does attitude play into that at all, the employee’s attitude?
[0:28:42.3] DF: Sure and you know there’s a lot of reasons why you may keep someone and not someone else.
[0:28:48.7] KM: And that’s an acceptable excuse is well they have a good attitude and they don’t? But that’s an acceptable excuse.
[0:28:53.4] DF: But you need to be able to define how they have a good attitude as oppose to how the other person didn’t.
[0:28:58.7] KM: Yeah, that seems high school-y like “She’s nice and she’s not”. In fact when I have to write my position statement, I had a really hard time to not sound petty, to make it sound very – you know, “Well then they did this and then it did that” and you thought, “God this sounds so juvenile” having to outline it and so I have to rewrite it three or four times to try to make it into this unemotional and fact like. Does your seminar in August going to help people to write those to where they don’t –
[0:29:31.1] DF: We actually have on our website with published information on how to write a good position description what you need to include in that. So in our small business resource center which is on our website, www.eeoc.gov, and you can see up there a link for employers and small business employers. It has just everything for small business that you can need. We have a small business fact sheet that covers everything that a business would need to know, where they could get more assistance.
[0:30:05.6] KM: Do I get to take a look at these papers you brought. I am taking these.
[0:30:08.6] DF: You can have it. It has –
[0:30:10.8] KM: Your responsibilities, how we can help, contact us, preventing discrimination is good business. This should be up everywhere.
[0:30:18.8] DF: Well it’s on our website.
[0:30:20.6] KM: This is good.
[0:30:22.2] DF: Yeah and our website is user friendly and I think we have a really good website and most of our document, all of our documents I think, anything that has come out in the past several years is written in plain English.
[0:30:34.8] KM: That makes a difference you don’t have to speak lawyer speak.
[0:30:37.9] DF: Yeah, not lawyer speak although we are still struggle sometimes with that when things are reviewed for legal sufficiency and they send it back to us, we’re like, “come on, people don’t talk like that”.
[0:30:49.1] KM: Debra are you a lawyer?
[0:30:50.4] DF: I am not.
[0:30:51.6] KM: So this is a right to work state which sounds like a backward statement, what does that mean?
[0:30:55.7] DF: It means that the employer has the right to hire and fire as they please basically as long –
[0:31:01.4] KM: Don’t you think that’s said backwards?
[0:31:03.5] DF: Right to work?
[0:31:04.3] KM: Right to work.
[0:31:05.6] DF: Well yeah because it makes it sound favorable to you, the employee.
[0:31:09.4] KM: The employee but it’s not, it’s favorable to the employer.
[0:31:12.9] DF: Yes, it is.
[0:31:14.9] KM: But if you fire for any of the reasons you said sex, religion, race, color, age, retaliation?
[0:31:22.5] DF: And not only fire, job assignments, promotions, hours assigned, wages, all of that is covered and we get a lot of harassment charges. Harassment is a huge issue that is filed with the EOC. Harassment based on race, based on sex, based on religion, based on disability and that’s an area when I get asked to come train at employer sites, harassment is usually the number one thing we’re asked to come train on.
They want us to talk to all employees, they want us to talk to managers and we do that training a lot and also on Americans with Disabilities Act. Even though the law has been enforced since 1992, I mean it passed in ’91, it went into full effect on ’92 it’s still so confusing for employers.
[0:32:12.9] KM: Which one?
[0:32:13.0] DF: Americans with Disabilities Act.
[0:32:14.9] KM: What’s confusing about it?
[0:32:16.3] DF: I think a lot of it is the reasonable accommodation process where the law says that if an individual has an impairment that rises to the level of a disability that the employer has to make an accommodation so that they can continue to do their job. Obvious would be if a person uses a wheelchair and they can’t go through a door, that’s obvious but sometimes it’s not something obvious. Sometimes a person may have an impairment let’s say a back impairment.
And they have a lifting restriction and frequently employers freak out about that like, “Oh they can’t do their job anymore” you know not necessarily. There’s things that they maybe can do so we do a lot of training on the ADA as well. Employers always have questions about that one.
[0:32:57.0] KM: Do you see a lot of frustration with employers?
[0:32:59.5] DF: Sure.
[0:32:59.9] KM: Do you think substance abuse is a big problem for America? I know that in my job and hiring today that one of my problems is substance abuse and I don’t drug test because I feel like it’s an invasion of their privacy. So I don’t drug test.
[0:33:15.0] DF: Do you have worker’s comp coverage?
[0:33:16.6] KM: I do.
[0:33:17.1] DF: Do they require you to drug test if there’s a worker’s comp injury?
[0:33:20.7] KM: Only if there is an injury but I don’t do it on a daily basis.
[0:33:23.2] DF: Yeah, a lot of employers do drug testing and drug testing is okay as long as you’re drug testing everybody consistently or for a cause. If you suspect someone has reported to work inebriated or under the ADA gets tricky. This specifically excluded drug testing because of the Drug-free Workplace Act, okay?
[0:33:47.1] KM: What does that mean, the Drug-free Workplace Act?
[0:33:49.2] DF: There’s the Drug-free Workplace Act where employers are allowed to drug-test individuals. So when the ADA was drafted they specifically excluded drug testing but that doesn’t mean that there can’t be a charge file because we have seen charges where they have selectively tested individuals and it may indicate based upon a person’s race that they were tested when other people were not, okay? That could be a race discrimination issue.
[0:34:16.5] KM: But my issue is I don’t know – is I know they are doing drugs but I’ve not drug tested them, you don’t have to talk about this actually but I am not drug testing them. So it’s hearsay on my part to say well the person is not here because they’re not drunk at work but they’re obviously –
[0:34:33.2] DF: Under the influence of something.
[0:34:35.2] KM: Of something and I don’t drug test unless – and so can you speak to that at all?
[0:34:41.5] DF: Well that’s on you Kerry.
[0:34:43.1] KM: I need to be drug testing?
[0:34:44.5] DF: Well, no. I mean just because you don’t drug test if someone reports to work under the influence, you can drug test for cause.
[0:34:53.2] KM: So I can drug test for cause on that one thing.
[0:34:55.7] DF: Yeah, you could drug test anytime you want.
[0:34:57.5] KM: But then they would say, “She didn’t drug test anybody else” then that would be discrimination right?
[0:35:02.6] DF: But do anybody else do exhibit signs of being under the influence at work?
[0:35:06.1] KM: Oh so there’s the loop hole.
[0:35:06.1] DF: Yeah, you need to look at that and did you drug test based on race, sex, religion, national origin, age, color? If you didn’t then you know? But one of the things that people don’t realize and a lot of people contract to have someone do their drug testing and there is a procedure by which you do drug testing so that you don’t violate the ADA, okay? So while you can do a drug test there is a proper procedure that the drug test has to be done.
So the procedure is that if you send someone for a drug test and they go, a lot of times whoever is doing the drug test gives the person a paper to fill out and they say, “List all medicines you are taking” okay? They are not supposed to do that. The only thing they are supposed to do is if something shows up on the drug test is to come back and say, “Do you have a lawfully prescribed prescription for this that showed up on your drug test?” If they do, then it’s not a positive screen.
If they don’t then it’s a positive drug screen and the reason being is they don’t have the right to know what medicines you are taking that won’t show up on a drug test.
[0:36:12.7] KM: So THC will show up on a drug test right?
[0:36:15.5] DF: But you could legally be taking it. You could have it, there is a pill that they prescribe for individuals with a certain eye condition. We had a case on this, individual backed into something on a forklift. It didn’t really do damage but because it was an accident, work was drug tested and some THC showed up. I think it’s called Marinol. It’s a prescription pill that the individual is taking because of a degenerative eye condition. So the employer fired them because of a positive test but it was a lawfully prescribed prescription.
[0:36:49.6] KM: If I decided I didn’t care if they have THC in their system?
[0:36:52.7] DF: That’s okay.
[0:36:53.9] KM: Is that okay?
[0:36:54.4] DF: If that’s what you want.
[0:36:55.0] KM: Or would Workman’s Comp quit?
[0:36:56.3] DF: Now I can’t tell you what Worker’s Comp would do.
[0:36:59.8] KM: See I think that they will. I think if a drug test did and found that some of my great employees had some THC in there and then I would have to fire them, it would be counterproductive to Arkansas Flag and Banner.
[0:37:10.2] DF: I understand what you are saying. So we don’t have a requirement.
[0:37:14.2] KM: You don’t have a requirement?
[0:37:15.4] DF: But we frequently still see individuals doing drug testing wrong and even if you contract with someone to do your drug testing and they do it, you are going to be liable because you have contracted.
[0:37:25.8] KM: And I can still say to the EEOC I believe and suspect they were on drugs and that’s why I let them go even though I don’t drug test and that would be a valid thing to say.
[0:37:38.2] DF: Yeah and if you documented specifically the behavior, right?
[0:37:44.8] KM: Document, document, document if I learned one thing today, it’s take the time to write it down even if it’s not written well just write it down.
[0:37:52.9] DF: Write it down and be consistent.
[0:37:55.5] KM: Because if you write it down for one and don’t write it down for another then that’s discrimination.
[0:38:00.0] DF: And be consistent in your –
[0:38:00.9] KM: So I am my own human resources. I am the owner, I load the dishwasher at night, I take the trash out, although employees probably disagree with that but I do and so I have to do the human resources also and you do have a tendency to just push it off because it’s not in your face right then.
[0:38:23.7] DF: Right.
[0:38:24.2] KM: But it is worth taking the time to do it even if you just scribble it on a piece of paper, put the date on it, don’t even make it a formal official thing and throw it in there. Do you have to have the employees sign it?
[0:38:34.7] DF: No, if you are just keeping notes for yourself.
[0:38:37.9] KM: Is that worth valid? Is that useable?
[0:38:39.7] DF: Sure.
[0:38:40.4] KM: Okay, last but we probably have time for one more question. What do you think is the biggest hurdle facing American workers and employers is today? That’s a big one ain’t it?
[0:38:49.4] DF: Yeah, you should have shot me that one in an email so I can could think about that.
[0:38:53.6] KM: Sure, so you’ve got six topics you are going to talk about in August you said in Hot Springs.
[0:38:57.2] DF: We’ll have six workshops and then two planery sessions.
[0:39:00.3] KM: And one of them you said is going to be retaliation?
[0:39:02.9] DF: We always do retaliation, we always do work place harassment. That’s two of the things that people really want to know about but I really want small businesses to know that each district has a small business liaison. In our district that’s me. So if you go to EEOC’s website and go to that small business resource center we’re calling it, you can contact whatever small business liaison is in your district, it tells you.
[0:39:28.5] KM: And they want to help you. You’re not ratting yourself out. I think some people are scared of that but they really need to know you’re there to help them be successful.
[0:39:37.8] DF: And I don’t take the information and run down the hall to investigations and say, “Hey this employer called about this” that’s not the purpose.
[0:39:44.9] KM: Does education even talk to investigators?
[0:39:47.4] DF: Well yeah, we talk to investigators because they are there but no, we don’t share information if people need help that’s what I would do and one other thing that I would like to say and you hated putting together position description, you could have avoided that entirely if you have gone to mediation. EEOC has a very successful mediation program and nine out of 10 cases in Arkansas that go to mediation they are successfully mediated and the investigation is over. That’s an astounding number you know?
[0:40:17.4] KM: So if you get a call from the EEOC you should go to mediation.
[0:40:19.9] DF: Absolutely.
[0:40:21.1] KM: Alright, Tim’s got a question.
[0:40:22.6] TB: Yeah, someone just sent me a text message. They want to know, can you legally secretly record interactions with your boss?
[0:40:31.7] DF: Okay.
[0:40:32.9] KM: That’s a good one.
[0:40:33.6] DF: As I understand it and I am not an expert in that area, if they did we would still use that information in a proceeding okay? Whether it’s legal or not, I can’t comment on that because that’s not my area although I think what the law says in Arkansas is if one person to the conversation is aware of the recording, it’s legal. So if you’re the person recording and you are aware of the recording, I think it’s legal but that’s not our area to say whether it’s legal or not and we would use it.
[0:41:06.2] KM: So I’d say yes. So whenever you have a conversation with one of your employees about something, tell them to put their phone on the desk. I think I just learned that today. If I didn’t learned anything else today, you know how trusting I am Tim, he knows.
[0:41:21.1] DF: But people and particularly in harassment cases, they really do really stupid things and case and point, the one case I think about we had an individual, a female working in what would probably be a traditionally male environment, okay? Auto part sales, left her phone on her desk, went and did some things, came back and noticed it was moved. Looked, there was a picture on it. Someone had picked up her phone, dropped his pants, took a picture okay?
[0:41:48.2] KM: The red zone.
[0:41:49.3] DF: But not entirely smart but you could also see his shoes and so she knew who it was right? So when we went to court, yes we did, we blew that picture up and it was in court and we asked him, “Is this your picture and did you take it?” but –
[0:42:07.2] KM: I want to be in the EEOC for that stuff. That’s awesome.
[0:42:11.9] DF: Well employers need to be aware.
[0:42:14.7] KM: Don’t take pictures of your penis. That’s pretty simple.
[0:42:19.1] DF: But they also need to make sure their employees know that harassment is not tolerated in the work place because they are going to be liable for it depending on the situation and they need to educate their employees about that. They need to not let that happen and they need to set the standards for how work place behavior is.
[0:42:37.4] KM: I just want to know if that guy was drunk at work or something? I mean what’s up with that? That’s hilarious. I mean that’s not hilarious but it’s bizarre.
[0:42:45.9] DF: It’s common.
[0:42:46.4] KM: It is?
[0:42:47.3] DF: It’s common.
[0:42:48.2] KM: Yeah, I am changing occupations. I want to see these.
[0:42:51.4] DF: We can swap.
[0:42:53.1] KM: Well you’d bring me all those pictures with you.
[0:42:57.3] DF: No I can’t do that.
[0:42:59.1] KM: So you’re a connoisseur of barbecues?
[0:43:01.5] DF: Yes, I love barbeque. Blues.
[0:43:04.7] KM: You love blues.
[0:43:05.9] DF: I do.
[0:43:06.1] KM: You told me that you like to go on the blues cruise.
[0:43:09.3] DF: Yes, two weeks.
[0:43:11.1] KM: Tell everybody what the blues cruise is?
[0:43:12.4] DF: Man, we spend a week in the eastern Caribbean on Holland American line and it’s all blues cruisers so it’s a charter trip and we sleep very little, drink maybe a little too much and enjoy a lot of blues.
[0:43:26.6] KM: But you’re on a boat so nobody cares.
[0:43:27.9] DF: We’re on a boat so nobody cares.
[0:43:30.2] KM: Employers all need an arrow in their quiver to keep us out of trouble, what do you suggest every employer make sure that they do? I think it’s document, document, document.
[0:43:40.2] DF: I think familiarize themselves with the all the laws and all of our information is on our website, you should never not know the answer to a question because you can go to our website and find it.
[0:43:51.3] KM: I think we just don’t ever thing it’s going to be us and that was going to ever happen to us.
[0:43:56.0] DF: True.
[0:43:56.7] KM: I mean, I think people that know they’re being bad a lot of times have already read your website. But people that are you know, kind of naïve, you know, just never think it’s going to really happen to them.
[0:44:07.3] DF: My experience, there are some bad actors out there.
[0:44:10.8] KM: What does that mean?
[0:44:11.6] DF: There’s employers who do bad things and they do bad things maliciously and they know they’re doing bad things.
[0:44:16.4] KM: That’s right, there are. That’s what you’re there for.
[0:44:18.7] DF: But, by far, in my time doing investigations and even doing education, the bulk of the people that I’ve interacted with want to do the right thing, those employers want to do the right thing.
When you talk about EEOC and employers do, you know, hate the term EEOC and you know.
[0:44:40.3] KM: Scared of it.
[0:44:40.3] DF: Yeah, I like to and you know, assure employers, when I’m talking to them that I know that the bulk of them want to do the right thing. We want to help them do the right thing by education to prevent and if they have questions to call me, email me, that’s what I’m there for.
[0:44:55.1] KM: If every employer did the right thing, then we wouldn’t need the EEOC.
[0:44:59.7] DF: That would be our hope.
[0:45:01.0] KM: Wouldn’t that be a lovely world?
[0:45:01.6] DF: After I retire.
[0:45:02.7] KM: Wouldn’t that be a lovely world to live in? Alright, thank you to the EEOC district manager Debra Finney for sharing her words of wisdom with us today and making such a difficult subject and hard to talk about, easy to talk about.
[0:45:15.8] DF: Thanks.
[0:45:16.1] KM: I know you’re a cigar smoker.
[0:45:17.3] DF: Thank you.
[0:45:18.6] KM: That’s a good one.
[0:45:18.9] DF: Isn’t that awesome?
[0:45:19.9] KM: Yeah, or, would you rather have this one?
[0:45:22.5] DF: No, this is fine.
[0:45:23.3] KM: Your husband might would rather have one of these, okay sure.
[0:45:26.2] DF: He’s over there like –
[0:45:28.1] KM: He doesn’t smoke cigars? We know who wears the pants in this family. He doesn’t say anything. I wish everybody could see how nice your husband is, he’s just charming.
[0:45:39.3] DF: We call him Saint Chuck for a reason.
[0:45:42.3] KM: He is Saint Chuck.
[0:45:44.1] DF: Because he’s married to the devil.
[0:45:45.9] KM: No he’s not. That is not true. That is so not true. You are a good girl and you are doing the right thing by the all of us out there. That cigar came from the Humidor Room, colonial wine and spirits on Malcolm street in Little Rock Arkansas and we appreciate them, they’re good flag wavers.
To our listeners, if you have a great entrepreneurial story, you would like to share, I would love to hear from you, send a brief bio and your contact info to:
[0:46:12.2] TB: Questions@upyourbusiness.org.
[0:46:14.3] KM: That’s right. And someone will be in touch, I’d love to hear from you and finally, I want to thank all of you for spending time with me and my guest Debra Finney. If you think this program has been about you, you’re right.
But it’s also about me. Thank you for letting me fulfill my destiny, my hope today is that you’ve heard or learned something that’s been inspiring or enlightening and that whatever it is, it will help you up your business, your independence or your life. I’m Kerry McCoy. Until then, be brave and keep it up.
[END OF INTERVIEW]
[0:46:46.6] TB: You’ve been listening to Up in Your Business with Kerry McCoy. Want to hear today’s program again or want someone else to benefit from it? Jot this down. Next week this podcast will be available at flagandbanner.com. Click the tab labeled “Radio Show”, there you’ll find today’s segment with links to resources you heard discussed on this program. Kerry’s goal: to help you live the American Dream.