March 25, 2004                                

Congressman Bill Young

Chairman

U.S. House of Representatives

Appropriations Committee

2407 Rayburn Building

Washington, DC 20515

Re:     EEOC FY 2005 Budget Request

Dear Chairman Young:

I am writing on behalf of the National Employment Lawyers Association (NELA) to express our concerns regarding the Equal Employment Opportunity Commission’s proposals to establish a National Call Center for charge filing, and to realign its resources to consolidate its District Offices.

NELA is the only professional membership organization in the country comprised of lawyers who represent employees in labor, employment and civil rights disputes.  NELA and its 67 state and local affiliates have a membership of over 3,000 attorneys who are committed to working on behalf of those who have been unlawfully treated in the workplace.  NELA strives to protect the rights of its members' clients, and regularly supports precedent-setting litigation affecting the workplace rights of individuals. As a group, NELA attorneys have represented thousands of individuals seeking equal employment opportunities.  NELA is one of a limited number of organizations dedicated to protecting the rights of those who rely on the Equal Employment Opportunity Commission and the courts for protection against illegal workplace discrimination.

NELA has always been supportive of the EEOC, and we understand the difficulties the agency faces with level budgets while the workload increases.  It is our intention to provide constructive ideas and approaches to assist the agency in achieving its goal of making the “agency more customer-centered, performance-driven, and results oriented,” which it is required to do under the President’s Management Agenda.

We testified before Congress in the 1990s on several occasions to support the agency’s budget requests and to make recommendations to improve the agency’s enforcement procedures.  Several members of NELA’s Executive Board, as well as our general members, were selected by the EEOC to participate in the negotiated rule making process of the Older Workers Benefit Protection Act in 1994 and 1995.  In 1995, we were invited to provide recommendations to the EEOC’s Task Force On Charge Processing, headed by then Vice Chairman Paul Igasaki.  NELA also worked with the Commission on drafting its 1998 guidelines on sexual harassment.  Most recently, we have had ongoing discussions with the Commission on due process procedures for mandatory arbitration agreements.  In addition, many of our members have worked closely with the General Counsel’s Office, the Office of the Chief Legal Counsel, and with EEOC field offices around the country.

National Call Center

The establishment of a National Call Center where individuals would obtain assistance on charge filing was proposed by the National Academy of Public Administration for restructuring the EEOC.  It now appears that the EEOC is intent on implementing that proposal.  Based on the NAPA Report, NELA believes that a National Call Center will result in the following:

·                  Under the Report’s recommendations, up to 50 field offices could have their staffs reduced by as muchas 80% with some staff assigned to limited function“satellite” offices and mobile vans.

·                  85% of investigators and attorneys assigned to the field offices would telecommute at least two daysa week and would share office space when theywere at the office.

·                  Many employees would not work in any office butwould perform their jobs entirely out of their homes.

·                  A significant number of charges would be filed bye-mail or by placing a telephone call to an 800 number or national call center.

It is not unreasonable to think that the above model will have a severe, negative impact on the EEOC’s law enforcement program because of the following:

·                  The close coordination between investigators, attorneys and supervisors will suffer since it will be difficult for staff to meet face-to-face with access to the voluminous document files investigations normally generate especially in complex cases. This will likely set in motion a vicious cycle.

·                  Serious delays in investigations will result, which will cause an increase in inventory and processing time, which will in turn cause an increase in complaints, which will cause more time being devoted to responding to the complaints, which will reduce the amount of time that can be devoted to the development of significant cases.

·                  In cities where the EEOC closes offices, a number that could be as high as 40 (and there is nothing in the NAPA Report that cautions against closing that many), the level of service will decline because investigators will have to travel from offices hundreds of miles away. It is very likely that the expense and inconvenience of travel will will result in fewer in-person interviews with charging parties and fewer if any on-site investigations, and this will impede the development of significant cases.

·                  Significant re-work of charges will be likely when an investigator is assigned to a charge taken by a National Call Center or submitted by e-mail. This will occur when investigators realize that a claim or cause of action is missing, or that an improper claim has been included, and it will take more investigator time to figure out how to prioritize these claims as A, B, or C charges. It may also diminish the opportunity for the EEOC to seek  a preliminary injunction.

There are also many who fear that if some of the suggestions of the NAPA Report are adopted, that the progress made over the last eight or so years could be lost. NAPA’s proposed changes to the law enforcement program need to be given thorough and deliberate consideration and all stakeholders need to be consulted, not just the external stakeholders. The EEOC’s staff is probably in the best position to know from experience which changes are likely to be successful and they need to be fully consulted as well.

Realignment/Closure Of District Offices

The NAPA Report seems to suggest that the EEOC downsize or significantly reduce staff in as many as 40 offices nation-wide, leaving 10 “lead” offices supplemented by “satellite” limited service offices and mobile units. It suggests that professional staff work from home offices or telecommute at least 40% of their time. Reducing staff levels significantly will reduce the effectiveness of the people who remain.

Reducing the number of offices will certainly decrease the level of service provided in some cases to areas that have always traditionally been well served by the EEOC. We urge you to consider the kind of message it sends and the implications of withdrawing coverage or significantly reducing the level of coverage in areas that have always traditionally been served.

Revising the field legal staff structure to eliminate attorneys in some of the 23 offices to create a small number of larger regional legal units could severely harm the agency’s National Enforcement Plan (NEP). One of the factors that has contributed most to the EEOC’s  most dramatic successes under the Priority Charge Handling Procedures (PCHP) was the decision to place trial attorneys in 26 out of 50 Commission offices that had previously been without lawyers on staff. We have seen this first hand in several Area Offices. Aggressive EEOC lawyers seem to empower staff and help give focus to cases that might otherwise go unnoticed or undeveloped. We believe that attorneys must remain in all offices, but we recognize that it may not be possible to have a full complement of attorneys in all 23 District Offices.

It is worth considering whether it would make sense to move legal personnel around so that instead of serving in a regional legal center, they spend part of their time in a District Office and part of their time in an Area Office.  Also, if a particular attorney shows ability in a specific substantive law area, the Commission might consider bringing that person in from out of town to help try a specific  case. The EEOC might also think about sending some of its best Regional Attorneys on temporary assignment to offices that have not done well in the past to help bring about positive change.  This would allow the EEOC to improve the functioning of less effective offices without harming morale. Quite the contrary, the agency might find that this boosts morale.

Telework or working out of home offices can adversely impact the NEP which depends on frequent interaction between attorneys, paralegals, investigators and supervisors, all of whom need access to voluminous paper files maintained in the office.  If most of the investigators and attorneys are only in the office during half the work week, interaction will be infrequent and that will likely cause the NEP to suffer.

We understand that the EEOC’s Regional Attorneys unanimously sent a letter to

Chairwoman Dominguez indicating that they did not believe telework was appropriate for attorneys in legal units. This causes us great concern.  The effective implementation of the PCHP and NEP is dependent on offices where investigators and attorneys work together. If downsizing means reducing the amount of staff and attorney interactions, we believe these programs will suffer.

Certainly it has been true for many years that the EEOC has not been properly funded. We have seen the agency go from fiscal crisis to fiscal crisis for many years now. Obviously spending has to be controlled. However, the restructuring (if there is to be restructuring) has to be based on something concrete. Annual rent increases are cited as a primary basis for the need to reorganize the agency’s field offices, but the numbers do not appear to add up. If the decreases that are cited are accomplished by paring the rents, that will not save a significant amount of money.  Rent currently accounts for only $1.8 million (NAPA Report, page 31) which amounts to only ˝ % of the agency’s annual budget. If it is true that 85% of the agency’s budget involves personnel while 11% involves rental costs, how can anyone argue that reducing rental expenses even by as much as half would save the agency any significant money?

The NAPA Report also cautions that closing offices could result in additional travel costs for investigators and mediators, and that this could offset the savings. Also there would be additional costs if the agency relies heavily on telecommuting and home offices to reduce office space (e.g., computers, extra phone lines, fax/copy machines, cars, etc.).  A budget analysis needs to be done to determine whether the downsizing would, in fact, result in significant savings.

Before taking the radical step of downsizing, consideration should be given to other means of achieving cost savings.  For example, “contract” mediators should be eliminated.  Reducing the amount of office space rented is a good idea as is the idea of moving to cheaper office space.  However, we do not support the merging of the four pairs of EEOC offices that are within commuting distance of each other because in almost every instance both parts of the pairs are offices that have excellent track records. This is also true for other offices that are not considered pairs per se, but that are geographically close to each other.

For example, some offices that are close to each other geographically are located in entirely different legal jurisdictions.  The Baltimore Office is close to the Washington, D.C. Office but the Baltimore Office is in the Fourth Circuit, and the Washington, D.C. Office is in the D.C. Circuit. There is a world of difference between the U.S. Court of Appeals for the D.C. Circuit and the Fourth Circuit. The agency needs an effective and