Have you received a "Notice of Charge of Discrimination"?
The State of Delaware Department of Labor’s Division of Industrial Affairs is seeing an increase of claims.
Two of HR Strategies’ clients, within one week, have received a Notice of Charge of Discrimination. One is from a current employee while the other is from a former employee. We can assure you that neither of these allegations are founded and each organization will have to invest a significant amount of resources defending these charges.
What does this mean?
When an organization receives a Notice of Charge of Discrimination it will arrive certified mail – return receipt requested so that the Office of Anti-Discrimination will know that the company has received the charge(s). The clock starts ticking immediately and the organization has only twenty days to file an answer or to choose mediation.
Should the organization choose mediation?
If an organization chooses mediation, they do not need to file an answer and will complete the Invitation To Engage in Mediation and return it to the agency within twenty days. The Delaware Department of Labor (DDOL) Mediation Program is a voluntary program offered by the DDOL. The mediators are trained and experienced in the use of interest based facilitative mediation to resolve employment related disputes. The information shared during the mediation will be kept confidential and none of the information will be shared with DDOL regardless of the outcome. Utilizing mediation, cases are resolved early in the process and may eliminate or reduce expenses associated with responding to an investigation and litigation expenses can be avoided.
If an organization decides not to use mediation, the case is referred for further investigation, you and the Charging Party will be asked to provide information. Your investigator will evaluate the information submitted to determine whether unlawful discrimination has taken place. You may be asked to:
- Submit a statement of position. This is your opportunity to tell your side of the story and you should take advantage of it.
- Respond to a Request for Information (RFI). The RFI may ask you to submit copies of personnel policies, Charging Party's personnel files, the personnel files of other individuals and other relevant information.
- Permit an on-site visit. While you may view such a visit as being disruptive to your operations, our experience has been that such visits greatly expedite the fact-finding process and may help achieve quicker resolutions. In some cases, an on-site visit may be an alternative to an RFI if requested documents are made available for viewing or photocopying.
- Provide contact information for or have employees available for witness interviews. You may be present during interviews with management personnel, but an investigator is allowed to conduct interviews of non-management level employees without your presence or permission.
- Attend a fact-finding conference. Such conferences often help to expedite the fact-finding process and may help achieve quicker resolutions.
Don't let this happen to your company.
The best defense an organization can have is making sure they have policies in place and that they are consistently followed. Documentation of employment decisions is critical and should include any investigations that were conducted, who, what when and why were the employment decisions made. The documentation should also provide proof that these decisions have been implemented similarly throughout the organization and that a this was not a discriminatory practice.