The first notice you receive that a current or former employee has filed an administrative charge against your company may be a short, one-page letter from the investigating agency. Administrative charges should be taken seriously, regardless of whether you believe that the charge has merit.
Soon after a charge is filed with the Bureau of Labor and Industries (BOLI) and/or the Equal Employment Opportunities Commission (EEOC), the agency will provide you with a copy of the complaint, along with information about who will be conducting the investigation on behalf of the agency. You will be asked to send a position statement responding to the specific allegations made in the complaint within 14 days.
If you believe you will need more than 14 days to prepare your position statement, you should contact the investigator immediately to request an extension. Generally, investigators are willing to provide you with an extra week or two, but not much more time than that, depending on when they will be interviewing the complainant.
Your first step should involve notifying any potential insurers and considering whether you should hire an attorney to assist with the process. Once you have done that, it is time to perform an investigation into the allegations raised. You should interview key witnesses and gather any and all documentary evidence. Make sure that all witnesses are told that they will not be retaliated against for providing information in good faith during the investigation. Also, try to gather all of the facts related to the allegations, not just the ones that you believe will support your position.
Once you feel that you have gathered all of the information and documents related to the charge, you are ready to begin drafting your position statement. Although the correspondence from the administrative agency only asks you to respond to the specific allegations raised in the complaint, consider submitting a more complete position statement which includes not just an admission and denial of each specific allegation made in the complaint, but also some background about the company, the complainant’s history of employment with the company (along with any past performance problems) and, most importantly, the non-discriminatory reasons for any disciplinary action taken against the complainant. Although Oregon is an at-will employment state, the investigator will expect you to have valid reasons for any action you took against the complainant, and a failure to come forth with such justification may result in a finding in favor of the complainant. You are encouraged to attach any relevant documents to your position statement.
After you tell your side of the story, respond to the specific allegations made in the complaint one by one. Although this will at some point be redundant with the general response already provided, it is important that you specifically respond to all allegations raised in the complaint.
Finally, conclude with a brief legal analysis of the claim(s) raised by the complainant. It is extremely important to apply the facts you have outlined to the applicable law. If you do not do this, the investigator will do it without your assistance and may miss important legal arguments. Your position statement is therefore your opportunity to persuasively argue that, in light of all the applicable facts, you have not violated any laws. This is especially important when you find yourself having to admit some unfavorable facts, but there is nevertheless a legal reason why the complaint lacks merit and would not succeed in court.
After you send in your position statement, it may be months before you hear anything from the investigator. In some cases, the investigator will contact you to either request interviews with witnesses or gather additional information and documents. In other cases, the investigator will reach a determination without any further contact with you. However, be aware that the investigator may contact other current or former employees without your knowledge or permission.
At the end of the investigation, the investigator will issue a “right to sue letter,” which indicates whether the administrative agency has found substantial evidence of discrimination. If the investigator finds substantial evidence of discrimination, the investigator may make findings of fact, which are the investigator’s conclusions about what happened (and who was telling the truth) in light of all of the information the investigator has discovered. Importantly, whether or not the agency finds substantial evidence of discrimination, the complainant has 90 days from the date of the right to sue letter to file a lawsuit.
You can save money on attorney fees by gathering all relevant documents and information so that your lawyer does not have to spend time on that step. Regardless of whether you choose to hire an attorney to assist you with the preparation of the position statement, administrative charges should always be taken seriously. An investigator’s unfavorable findings of fact may be admissible in the subsequent lawsuit and a failure on your part to take the administrative charge seriously increases the likelihood that the investigator will find substantial evidence of discrimination, which may in turn embolden the complainant to file a lawsuit.
Andrew Schpak, an attorney with Barran Liebman LLP, represents management in employment litigation and provides advice in employment matters. Contact him at 503-276-2156 or aschpak@barran.com.
