Defending Complaints at the Lancaster County/Pennsylvania HRC

Presented by:

David R. KellerBarley Snyder LLC

126 East King StreetLancaster, PA 17602

Direct: 717.399.1513Fax: 717.291.4660

Email: dkeller@barley.comwww.barley.com

Initial Review of Complaint

Initial Review of Complaint

Read thoroughly

Initial Review of Complaint

Check for timeliness

Check to see if the Complainant signed the Complaint (if not, raise it as an affirmative defense)

Initial Review of Complaint

Check for jurisdiction

Size

Geographic location

Allegation of a category protected by the statute

Initial Review of Complaint

If any defects discovered Complete the Answer, but deny

jurisdiction; or Complete the Answer, but include

affirmative defenses such as timeliness

Initial Review of Complaint

Be careful before asserting that the Employer is beneath the four employee threshold Independent contractors Part time/casual employees Under the table payments

TAKE IT SERIOUSLY

TAKE IT SERIOUSLY

A complaint is not “no big deal”

TAKE IT SERIOUSLY

The Complaint is very important to the Complainant, who will push hard for a positive resolution and will challenge most of your facts

TAKE IT SERIOUSLY

The HRC, while neutral, is charged with responsibility to remedy discrimination

Investigator will ask tough questions

It does not pay to be cavalier about the Complaint

DO A THOROUGH INVESTIGATION

DO A THOROUGH INVESTIGATION

Take the necessary time

Extension of time of 20 days at Lancaster HRC is nearly automatic

Same with a 30 day extension at Pennsylvania HRC

DO A THOROUGH INVESTIGATION

Make certain that your organization knows all of the facts One person in charge Talk to all witnesses Review all documents Compile and review relevant policies and procedures

DO A THOROUGH INVESTIGATION

It creates serious problems to respond to the HRC and later find it necessary to say that you were wrong Get it right the first time

What if individual Management Employees are named in the Complaint?

What if individual Management Employees are named in the Complaint?

Get the facts first

What if individual Management Employees are named in the Complaint?

What reassurances do you give to the Employee? If facts were correct and Employee was acting in good faith, Company can support and represent its Management Employee If, at any time, it appears that the Company and Management Employee have different interests, we will tell you

What if individual Management Employees are named in the Complaint?

Separate counsel? Who pays?

How to Respond to a Complaint?

A formal Answer to the Complaint is required Must be served on the Complainant and his/her attorney, if any Can, and ordinarily should be, a short statement of response to each allegation of the Complaint

How to Respond to a Complaint?

It can be more expansive, which should be considered in unusual circumstances

Include affirmative defenses (failure to use internal complaint procedures, failure to request reasonable accommodations, late filing, etc.)

How to Respond to a Complaint?

Include verification

How to Respond to a Complaint?

These matters may eventually go to court, and without a proper Answer the Employer could lose on a technicality.

How to Respond to a Complaint?

Position Letter or Position Statement Not served on the Complainant unless you choose to do so Your opportunity to tell the story Must be factually correct with relevant documents as exhibits Should be persuasive If your attorney writes it, have it carefully reviewed for even small inaccuracies

How to Respond to a Complaint?

Response to document requests

Lancaster HRC and Pennsylvania HRC have slightly different procedures

How to Respond to a Complaint?

A document request is the opening negotiation as to what you ultimately give to either HRC Until investigators understand the case, they really don’t know what they need Most investigators will narrow their requests for good reason – some will not

Fact Findings – To Attend or Not to Attend?

What is a Fact Finding? Internal meeting at which both sides attend The Investigator (Fact Finder) asks all of the questions Tape recorded in Lancaster, not at Pennsylvania HRC

Fact Findings – To Attend or Not to Attend?

You can listen to and respond to the Complainant

The Complainant can listen to and respond to you

Fact Findings – To Attend or Not to Attend?

Factors to consider in deciding whether to attend a Fact Finding – it is not mandatory Can it be accomplished in a reasonable period of time

Fact Findings – To Attend or Not to Attend?

Is a settlement offer being considered?

Are there witnesses who will be especially uncomfortable or will not be good witnesses?

Does Complainant have an attorney?

Fact Findings – To Attend or Not to Attend?

Are there disputed facts worth discussing? Is the Complaint so frivolous as to be a waste of time? Is the Fact Finder reasonable, well organized, and under control?

Fact Findings – To Attend or Not to Attend?

If you attend Tell it like it is Answer only the questions

• The Employer can send information to the Fact Finder at any later time before a decision is made

Fact Findings – To Attend or Not to Attend?

Have one person take good notes while the others pay attention to the questions and respond to them You can call a time out Be prepared to be asked to settle and have a response ready

What May Occur During the Remaining Investigation?

What May Occur During the Remaining Investigation?

Expect additional questions and document requests from the HRC

What May Occur During the Remaining Investigation?

Expect requests for witness interviews or sworn statements from the HRC

Management/supervisory employees may have Company attorney present

Non-Management/Supervisory may not

What May Occur During the Remaining Investigation?

Sworn statements are routinely requested by the Pennsylvania HRC and EEOC, sometimes by the Lancaster County HRC

• Again, the request is an open negotiation• Evaluate the request and normally agree –

sworn statements are better than witness interviews

The Human Relations Commission Decision

The Human Relations Commission Decision

The Complaint may be dismissed.

But the Complainant still has rights.

The Human Relations Commission Decision

You may receive a letter summarizing the results of the investigation and indicating that the HRC is concluding that you have violated the statute

The Human Relations Commission Decision

You will be given the opportunity to respond to a letter finding merit

Prepare a strong response attacking the factual assertions particularly; or Engage in settlement discussions

The Human Relations Commission Decision

If there is no settlement, and the HRC does not respond positively to a rebuttal

Hearing Court appeals The Complainant has the right to take the case to court

IMPORTANT

IMPORTANT

Do not lie or ask witnesses to lie Do not falsify documents Do not destroy documents Preserve electronic information

Discrimination in . . .

Lancaster County Human Relations Commission

Employment

Public Accommodation

Education

Housing

“Protected Classes”

Lancaster County Human Relations Commission

age (40+)

categories under which someone can file

sex

handicap / disability

race

color

family status

ancestry

religion

pregnancy

national origin

GED

sexualharassment

Complaint Process

Lancaster County Human Relations Commission

Complaint Filed

Fact Finding Conference

Investigation

Finding

No Probable Cause Probable Cause

Possible Appeal Conciliation Attempt

Public Hearing

Finding

Charge Not Established Discrimination Found

Possible Court Review Remedy Issued

Compliance Possible Court Review