The filing of an administrative complaint alleging discrimination, under state or federal law, initiates the claims process. The receipt of a notification letter provides important information about the claim(s), instructions on how/when to respond and administrative next steps.
During the pendency of an administrative investigation the employer and the charging party (the former or current employee) are each provided an opportunity to provide relevant information. The information submitted during the investigation will be evaluated by the agency’s assigned investigator who will ultimately provide a recommendation as to whether the agency feels there is reasonable cause to believe that unlawful discrimination (harassment or retaliation) has occurred.
Important to the employer’s defense is the submission of its Statement of Position (SOP). Information provided in the SOP allows the employer to provide factual details and to tell its side of the story. Drafting the SOP is critical to the employer’s defense and should not be undertaken without first seeking legal counsel.
Agency investigators have the authority to request the employer provide specific documents and information or allow it to interview various individuals with knowledge of the organization and/or the specific allegations.[i] The investigators request for information may include submission of the organization’s handbook (or specific policies), personnel files for various individuals, or other relevant information (e.g., investigation notes, witness contact information). Employers should keep in mind that the agency may gather information through the subpoena process or by visiting the worksite.
If additional time is needed to gather documents or facts it is best to timely communicate with the investigator to secure an extension in advance of any pending deadlines.
Note: This article discusses administrative complaints filed with (and prosecuted by) a state or federal agency. It does not include information about responding to civil complaints alleging violations of anti-discrimination, harassment and retaliation laws.
Next week: Completing the investigation.
If your organization receives – or has received – an administrative complaint alleging discrimination, harassment or retaliation in violation of state or federal law(s) you should immediately seek legal counsel. Western Growers Members can take advantage of WG’s network of member law firms offering a WG member discount off their regular legal fees. For a list of participating law firms, call 877-942-4529.
[i] It is important to note that interviews with management personnel may include a company representative, however interviews with non-management level personnel may proceed without the company’s presence or permission.