Regardless of whether you are the employee or an employer involved in a Bureau of Labor and Industries (“BOLI”) complaint process, it can be unnerving. The best way to face your trepidation is to fully understand your rights, responsibilities, and the overall process. The following is a guide to the various parts of a BOLI complaint.
Step One: The Complaint
The employee usually contacts BOLI via the telephone and talks to an Intake Officer. If BOLI determines that the employee may have a factual basis for a complaint, and the complaint is timely (typically within one year of the action that forms the basis of the complaint), a questionnaire is sent to the employee. Once the questionnaire is returned, the Intake Officer drafts a discrimination complaint which is then signed by the complainant. BOLI then opens a case and assigns a case number and Civil Rights Senior Investigator. If the basis for filing is covered by both Oregon and federal law, and if the complaint meets the EEOC guidelines, the complaint is automatically “dually filed” with the EEOC.
Step Two: Employer is Notified
The employer will be notified that a charge has been filed with BOLI and/or the EEOC and is provided with the name and contact information for the investigator assigned to the case.
The letter will also outline when the employer’s response is due to the complaint, typically 14-21 days, but sometimes this deadline can be extended.
Step Three: Document Production
BOLI will request relevant documentation of the allegation and defenses from both the employer and the employee. This usually will include the personnel file, text messages, and/or email messages between the claimant and the employer or other staff, as well as anything the employee can use to prove their claim or anything the employer can use to deny the claims.
Step Four: Position Statement
Within 14-21 days the employer is required to submit a “Position Statement”. It’s “required” even though the employer has the option not to respond but, if the employer doesn’t, BOLI will make a factual finding based solely on the information provided by the employee. A position statement lays out the employer’s perspective regarding the incident and should address each of the claims by the employee and correct any factual errors in the employee’s complaint.
Step Five: Employee Telephone Interview
After the employer provides a Position Statement the employee will be contacted for a telephone interview. The interview covers each discriminatory act stated in the complaint and its date of occurrence. The employee must be able to tell the investigator how each discriminatory act is linked to his protected class(es). The investigator may ask the employee to provide the following information: identify witnesses able to corroborate relevant facts; identify comparators (other employees or individuals who, in a situation similar to his, were treated the same as, or differently from, him by the respondent); provide copies of any relevant documents in his possession or available to him (the investigator may ask him to make reasonable efforts to obtain certain information, such as medical records or unemployment hearing transcripts); and, describe the details of any relevant documents not available to him.
(Optional) Step Six: Fact Finding Conference
During an investigation the investigator may require attendance at a fact-finding conference. The purpose of a fact-finding conference is to identify points of agreement and disagreement and, if possible, resolve any disputes and settle the complaint.
Step Seven: Completion of Investigation
Once the investigator completes their investigation the information is passed on to BOLI Division Management. If the Division finds substantial evidence of a violation, a formal notice of Substantial Evidence Determination is issued and BOLI will likely attempt to mediate a settlement. If no violation is found, the Division dismisses the case and notifies the complainant and respondent of the dismissal.
Finally, once the case is closed, the complainant is provided information regarding the potential right to file a civil action in court.
© 8/31/2018 Phillip D. Jones of Hunt & Associates, P.C. All rights reserved.