When the Department of Justice comes knocking

If the U.S. Department of Justice (DOJ) investigates your public entity, do you know how to respond? The DOJ may investigate regarding discrimination in employment practices such as sex discrimination, USERRA violations, and National Origin Discrimination, among others. Every public entity should prepare for the prospect of such an investigation and handle sensitive matters as if one could arise.

The first sign of DOJ’s interest is a request for information.  A proper document retention system should be in place to ensure requested information is easily accessible and, hopefully, contributes to a quick and favorable resolution. Staff should be trained on policy and procedures and be mindful of city/county documentation requirements, properly disposing of records once the timeframe for storage has passed.  The following documents should be retained and stored:

Law enforcement documentation including jail reports, videos and body camera footage, medical records from medical providers, use of force reports and police reports, reports from investigating agencies, grievances filed by inmates, and demand letters

Employment documentation including employment files, demand letters, EEOC charges and employment testing data.

Litigation is expensive, so working with an experienced attorney who can negotiate a resolution agreement and pre-emptively address issues is an essential first step to protect the entity.  If there is no attorney on retainer, hire a reputable firm that has previously dealt with the DOJ or other government agencies, even if this means searching outside the immediate community. Your insurance broker or carrier may also be able to provide legal recommendations.

Sometimes special counsel may need to be appointed to find a solution or negotiate a settlement or consent decree (an agreement that resolves DOJ’s allegations). A consent decree will often require monetary payment as well as other compliance mechanisms such as continuous monitoring, changes in hiring procedures, and reports on hiring practice.

Ultimately, the goal is to stay off the DOJ’s radar, and a little research can go a long way toward lowering the likelihood of an investigation.  Monitor its website for recent cases or statements made on its blog or in speeches. For example, some recent DOJ investigations have focused on:

• Police, fire departments, jails, and correctional institutions. Investigations into the physical and written examinations for applicants, complaints of sex discrimination and USERRA complaints. Find examples of suits and settlement
• Law enforcement pre-applicant testing, both physical and written. If your entity uses examinations to screen applicants, ensure the tests have been validated for use by your specific entity, not just validated generally for police officer selection.
• Police interactions and use of force. Utilizing body camera technology and providing training on de-escalation techniques may be beneficial. Review high-profile situations to confirm the appropriate action and to remedy any issues that may arise.
• USSERA violations. The Uniformed Services Employment and Reemployment Act of 1994 entitle service members to return to their civilian employment upon completion of military service. It also prohibits discrimination based on past, present or future military service. Utilize the USSERA Employers Compliance Guide to ensure you’re following all procedures and laws. Consider posting signs in breakrooms or your employee handbook, so all employees are made aware of the rules and procedures.

Lastly, stay active and connected to local and regional groups to keep abreast of activity in nearby cities and counties. While the DOJ may never come knocking, a prudent public entity will develop the policies, practices, and community of experts it needs to protect its organization and resolve any investigation as quickly and as favorably as possible.

Sarah Schmitz is a claims manager at OneBeacon Government Risks, overseeing a wide range of claims brought against municipal entities, public officials and law enforcement. She is a past panelist and presenter at Claims Litigation Management National Conference (CLM), Professional Liability Research Bureau (PLRB) Regional Conferences, and the American Conference Institute National EPL Seminar. Schmitz has also co-authored portions of the Minnesota Insurance Law Deskbook and authored articles in Claims Magazine and the Hennepin County Lawyer.