Presentation on theme: "Defending Complaints at the Lancaster County/ Pennsylvania HRC Presented by: David R. Keller Barley Snyder LLC 126 East King Street Lancaster, PA 17602."— Presentation transcript:
Defending Complaints at the Lancaster County/ Pennsylvania HRC Presented by: David R. Keller Barley Snyder LLC 126 East King Street Lancaster, PA 17602 Direct: 717.399.1513 Fax: 717.291.4660 Email: email@example.com www.barley.com
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? 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?
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 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
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 sexual harassment
Complaint Process Lancaster County Human Relations Commission Complaint Filed Fact Finding Conference Investigation Finding No Probable CauseProbable Cause Possible Appeal Conciliation Attempt Public Hearing Finding Charge Not Established Discrimination Found Possible Court Review Remedy Issued Compliance Possible Court Review