Archive for May, 2013

Are you exhausted?

May 7th, 2013

Administrative Remedies

An important issue in many employment litigation situations – especially discrimination claims – is “exhaustion of administrative remedies.”  The basic principle coming into play here is that you can’t sue someone for not fixing a problem if you didn’t let them know it existed, and allow them an opportunity to correct it.

While it may be frustrating, when subjected to harassment or discrimination, to go through the motions of requesting that something be done about it, especially if you feel that it will do no good, because you know the responsible parties, etc., it is important, because not following these steps could result in your case being thrown out down the road.  In some cases, you can be “excused” from some reporting requirements, such as if the person you’re supposed to report it to is the one responsible for the harassment, and there is no alternative person designated.  However, you generally must make some effort to give the employer an opportunity to correct the problem before you “go outside.”

Generally speaking, employers are required to post policies and procedures on discrimination and harassment in a conspicuous, common place where employees gather or pass, such as a locker room, a lunch room, or the area around a time clock.  Often, this information is included in the large workplace posters that tell you where to report accidents or injuries, notify you of the minimum wage, etc.

If there is a published internal process or procedure for filing a complaint or reporting an incident, follow it.  If there is not a published procedure, and you don’t know to whom you should report – especially if the most obvious “next person in charge” is the one you’re complaining about – contact your HR department or representative and ask if there is a procedure you’re not aware of.  If not, ask them what you should do.  Sometimes, they’ll simply require that you make a written statement.  Sometimes, they will allow the statement to be anonymous, but their ability to investigate is limited in that case.  (Anonymous complaints are not very helpful in direct harassment or discrimination claims, because you probably can’t hide who you are, and if you do, it’ll be hard to prove later that you tried to make a complaint.)

In the case of hostile workplace claims, however, such as in the case of posting of lewd pictures, or offensive workplace conversation, you may be able to lodge a complaint with HR, and still keep it confidential from the offending employee(s).

Organized?

If you have a union, or some other organization that acts as your representative, you generally must follow their grievance procedure before you can file an outside complaint, such as with the U.S. Equal Employment Opportunity Commission (EEOC).  Contact your floor rep or shop steward for information.  If you have a copy of the shop contract, it’s probably in there.

Then What?

Once you have exhausted your internal remedies, you must then file with the appropriate agency before you can proceed to litigation.  The hope, of course, is that you’ll be able to resolve it there – through mediation or conciliation – or the agency will compel the offending party to change their policies, etc.  This serves the secondary purpose of putting the agency on notice of where problems are arising, since they’ll know, even if you don’t, who’s had other complaints lodged against them.  In North Carolina, the most common agencies for reporting at this stage are:

  • North Carolina Department of Labor – for Wage & Hour and OSHA retaliation complaints, as well as Workers Comp retaliation complaints.*
  • Office of Administrative Hearings (OAH) – for contested cases from many city, state, and county agencies, as well as many public colleges and universities.
  • OAH Civil Rights Division – for some agencies that don’t have an internal complaint process.
  • U.S. Equal Employment Opportunity Commission (EEOC) – for complaints of violation of federal discrimination and harassment claims (race, gender, religion, disability, etc.), such as

*The Department of Labor handles retaliation complaints for Workers Comp, but does not handle actual Workers Comp claims; those are handled through the Industrial Commission.

This list is not exhaustive, just the most common.  Some agencies have their own EEO agencies internally, such as the U.S. Post Office.  Most of these agencies have a prescribed time during which they will perform a preliminary investigation.  In some cases, they will pursue remedies on their own.  In most cases, when they have completed their investigation, they will issue a letter notifying you that you have a right to sue.  At that point, there is usually a “clock” that starts running, and you must file your lawsuit within that time window, or lose the right to sue on certain claims.

It is a good idea to seek out an attorney at the point where you make an external complaint, if you haven’t already done so.

Whether or not you hire an attorney at this stage, it is important that you keep good records of what you reported, to whom, and when.  Note what, if anything, was done, and keep any responses you receive via e-mail or written correspondence.  Keep any agency letters (including envelopes – see my other blog post The Envelope, Please), and keep a good journal.