Receiving a charge from an administrative agency, such as the Equal Employment Opportunity Commission (EEOC) or the National Labor Relations Board (NLRB), can be a daunting experience for employers. Understanding how to respond effectively is crucial to navigating this process and mitigating potential risks. This guide outlines the steps employers should take when they receive a charge from an administrative agency.
Review the Charge Carefully
The first step is to methodically review the charge. The charge will typically include:
- The name of the complainant (the employee or former employee who filed the charge).
- A summary of the alleged discriminatory or unfair practice asserted.
- A description of the allegations that form the basis of the charge.
- Important dates such as upcoming deadlines to respond or hearing dates.
- A request for a response from the employer.
Involve Counsel Early in the Process
Carefully read the document to understand the specific allegations and the timeline of events. Consider getting knowledgeable labor and employment counsel involved early on to create a strategy moving forward. You may have potential resources and defenses that need to be identified and raised timely. A lawyer who practices in the area covered by the administrative charge will make sure you have all the protections available to you.
Notify Relevant Parties
Inform key personnel within the organization, such as human resources, legal counsel, and senior management. Those involved must understand the situation and be prepared to contribute to the response. This internal communication should emphasize confidentiality and the importance of not retaliating against the complainant.
Consider who the decision-maker was when it came to the employee that filed the charge, and whether that person is mentioned specifically in the charge. Likewise, determine the status of the person that filed the charge. Is the person currently employed at your company or is it a former employee? It is important to proceed carefully if the person remains employed at the company to avoid any potential retaliation claims.
Preserve Relevant Records and Evidence
Immediately preserve all records and documents relevant to the charge, including personnel files, emails and other communications, performance reviews, and any documentation related to the complainant’s employment and the allegations. It is important to protect relevant documents, whether in electronic or hard copy form, so that they are not subject to automatic deletion or cleanout policies.
Conduct an Internal Investigation
Initiate an internal investigation to gather facts and understand the context of the allegations. This may involve interviewing relevant employees and witnesses, reviewing documents and records, and consulting with legal counsel to ensure the investigation is thorough and compliant with legal standards. The goal is to gather an accurate picture of what transpired and to prepare a factual response.
Prepare a Position Statement
Most administrative agencies will request a written response, known as a position statement. This document should be clear, concise, and professional; address each allegation in detail; provide relevant facts and evidence; and highlight the employer’s policies and practices that support a non-discriminatory and fair workplace. Legal counsel can be invaluable in crafting a position statement that is both persuasive and compliant with agency guidelines.
Submit the Position Statement and Cooperate
Submit the position statement and any supporting evidence to the administrative agency by the specified deadline, organized and complete. After submitting, the agency may conduct further investigation, including requests for additional information, interviews with witnesses, or on-site visits. Cooperate fully, responding promptly and thoroughly to any requests.
Evaluate and Address Potential Issues
Use the charge and the investigation as an opportunity to evaluate your organization’s practices and policies. If any shortcomings are identified, take proactive steps to address them — updating or clarifying policies, providing additional training to employees and managers, and implementing new procedures to prevent similar issues in the future.
Consider Settlement Options
In some cases, it may be prudent to explore settlement options with the complainant. Settlement can be a way to resolve the matter quickly and avoid the costs and uncertainties of litigation. Discuss potential settlement options with legal counsel to determine the best course of action.
Conclusion
Receiving a charge from an administrative agency is a serious matter that requires careful attention and a structured response. An administrative charge is usually the first step in litigation; therefore, you should assume that any documents filed with the agency may potentially end up being used in court. Involving counsel early on can make a difference in defending a claim and making sure you have the protections available to you.
We represent employers and business owners faced with all types of third-party interference — no matter the stage of the claim, whether you received a demand letter, a charge from an administrative agency, or a lawsuit. Even when your company is not currently facing these legal pitfalls, a sound approach is to be proactive: we provide preventive counseling, management education and training, and can help you implement preventive workplace practices to avoid problems before they arise.
If you have any questions or would like more information on the issues discussed above, please contact us.
Please note: this is not legal advice and you should not act on it. At the time this article was written, the information was current based on the prevailing law at the time. Laws and precedents are subject to change, so this information may not be up to date. Always speak with a law firm regarding any legal situation to get the most current information available.