By Deryn Sumner
We’ve talked a few times in this space about the changes the Commission made to Management Directive 110 in August 2015. One new addition we haven’t yet discussed is the addition of Appendix Q, a chart that provides examples of the types of evidence an agency should provide to establish proof of compliance with the different types of relief commonly ordered in Commission decisions. As someone who represents both employees and agencies in federal sector EEO complaints, I know firsthand how compliance issues can linger long after the Commission has ordered the agency to implement remedies. Both sides are more than ready to move on, but are stuck in a back-and-forth to ensure everything has been implemented and finalized. Even though the Commission orders the relief to be implemented, there is often room for disagreement on the details.
Take for example, back pay. A standard order from the Commission regarding back pay reads as follows:
The Agency shall calculate the amount of lost wages, including interest, for the time periods of February 13, 2006 to August 2006; and September 2007 to January 18, 2009. The Agency shall determine the appropriate amount of back pay, with interest, and other benefits due Complainant, pursuant to 29 C.F.R. § 1614.501, no later than sixty (60) calendar days after the date this decision is issued. The Complainant shall cooperate in the Agency’s efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. The Agency shall provide Complainant with its specific reasoning and calculations on how it reached this amount of back pay. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to the Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. The Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled “Implementation of the Commission’s Decision”.
This specific language comes from Michelle G. v. Department of Navy, Appeal No. 0120160822 (October 20, 2016), although it reads like many back pay orders. There are lots of potential areas of confusion in such an order: what if the employee worked in a position with overtime, shift differentials, or would have received a step increase during the time period in question? Often the agency issues a check for a lump sum to the complainant without an explanation as to how the agency arrived at that amount. If he or she cannot figure it out or cannot get a clear explanation from the agency, the only option is to file a petition for enforcement. And the most common remedy issued by the Commission in ruling on such petitions for enforcement is to order the agency to provide a detailed accounting of how it calculated the back pay.
Appendix Q attempts to reduce the number of compliance actions by providing a list of documents that an agency should provide for each type of compliance action. For back pay, there are four types of documents listed:
- Computer printouts or payroll documents delineating gross back pay before mitigation and interest, and
- Copies of any cancelled checks issued; or a copy of a print screen showing an electronic funds transfer.
- Narrative statement by an appropriate agency official of total monies paid. An appropriate agency official must be one to know with reasonable certainty that the payment was made. (Last resort)
- Documentation must include total monies paid, to whom, and when.
To look at another example where compliance issues crop up, in order to establish compliance with an order to provide training, Appendix Q states that the agency should provide:
- Attendance roster at training session(s) or a narrative statement by an appropriate agency official confirming training hours, course titles and content, if necessary.
- Course description providing some indication that the training was appropriate for the discrimination found or commensurate with the order.
Agencies should utilize this Appendix to put everyone on the same page regarding how an agency is implementing a Commission order. You can access Appendix Q here: https://www.eeoc.gov/federal/directives/md-110_appendix_q.cfm