If you’re one of the businesses that receive the 6,400 notifications that come from the NYS DHR annually, it’s important that you know that neither the notification of the start of a investigation, nor an investigative determination finding probable cause and recommending a hearing, mean that the employer has engaged in any wrongdoing. As discussed in another post, less than 10% of all complaints are referred to a hearing, and less than 2% of hearings result in any finding of liability. Your first thought is likely how you can both comply with the regulations and how to make sure your employees are safe.
If you receive a notification of an investigation, you will likely receive a document that identifies the Complainant, the case number, the investigator, the types of claims made (whether it is for harassment, discrimination, or retaliation, for example), and a brief statement of the facts. Keep and preserve these documents, as you will need them later.
The investigator will usually request a “position statement”. This is the opportunity for the employer, usually through its attorney, to offer its refutation of the allegations and justification for any action it took. Positions statements can state the facts, the legal arguments, and have supporting and exculpatory documents attached, including affidavits. You should not submit anything as, or with, a position statement until you fully understand the consequences of those statements.
After the position statement is submitted, you may be asked to participate in a “fact finding hearing”. These often take place in a conference room with all parties present, but on occasion they are done via teleconference. At the hearing, the investigator asks questions to all parties and witnesses present, within the investigator’s discretion. Typically, the parties are not permitted to ask their own questions or volunteer their own information. The parties may also be asked to participate in a mediation. As an employer, mediations can be a useful and cost effective way of reaching a disposition.
At some point, the investigation will come to a termination. The Complainant may, at any point, request an administrative convenience dismissal, which will result in a “right to sue” letter. The right to sue letter allows the complainant to take his or her claims directly to court. Although NY has no administrative exhaustion requirement, the Federal Governments regulations do, and Claimants often prefer to preserve their federal claims even though the state claims are nearly identical, especially if they wish to proceed in federal court. After the investigation is closed, the claimant may either proceed in a hearing, or may elect to pursue litigation in state or federal court.
What are some of the things you should expect your attorney to ask for?
First, an attorney will want to make sure that you immediately notified your insurance carrier, so that any coverage you might have is preserved.
An attorney will likely want to know this history of the claim, and what notice you had leading up to the investigation. You should review the complaint to determine whether or not you have been notified of the events in the complaint previously, and determine if the people identified (if any are in fact identified) in the Complaint are in fact your employees.
You should then compile documents and information relevant to your claim. What documents are relevant will depend largely on what the allegations are, and your attorney will assist you in identifying them. For example, if a complainant alleges that he or she was passed over for a position, not offered a job, suffered some adverse action or was fired, any documents or communications showing a job offer, or reasons for termination or other adverse action should be preserved. Sometimes even a document showing time and place of communications can be helpful. For example, if there are phone calls, text messages, or emails that can establish if/when communications occurred, they can rebut allegations of a lack of contact after an interview or after the lodging of a complaint.
An attorney will want to take witness statements; and, if you have an HR department, will want to review any investigation that you and/or your HR dept. have taken.
An attorney will also want the opportunity to interview your management and any employee who witnessed the events in the allegations, or against whom any allegations are made. Your lawyer will also want to review your employees' personnel files.
Your attorney may also want to know, in a broader sense, a brief history of your company or branch's interactions with the DHR, in order to determine if the ALJ and investigator have had similar cases in front of them previously.
It is also important not to retaliate against the employee making the report. You should not express any disappointment, or take any adverse employment action against them as a result of their report. You must keep treating the employee as you would had they not filed a complaint.
If this is the first instance of being informed of the allegations, it would be prudent to engage in an investigation. If the claim is one for harassing, threatening or violent behavior, take immediate steps to prevent similar conduct from occurring. This could mean moving workstations, changing tasks, or asking one or more employees to work from home or take a paid, non-disciplinary leave of absence while the investigation is conducted. If your workforce are union members, refer to your CBA and consult with your attorney to determine what courses of action you might have.
Engaging in these practices can have the effects of minimizing any risk of exposure and protecting the safety of your employees.