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FILING ADMINISTRATIVE CHARGES IN A “WRONGFUL DISCHARGE” CASE.

Continuing my series explaining the steps involved with filing a wrongful discharge case, today’s post presents a broad overview of the process of filing administrative charges.

STEP 3: 

FILING CHARGES WITH THE GOVERNMENT AGENCIES THAT ENFORCE EMPLOYMENT LAWS.

So called wrongful discharge cases arise under State law, Federal law or both.  Depending upon the nature of the claim, employees who wish to pursue a case in court may be required to begin that process by filing an administrative charge.  Administrative charges are filed with government agencies that have been given authority to enforce the law. 

For example, in order to pursue a federal claim of race discrimination, employees are required to file a charge with the Equal Employment Opportunity Commission (EEOC) within 180 days of the discriminatory act (or 300 days in dual filing states).   The same claim, under State law, does not include an administrative prerequisite.  Filing with the Ohio Civil Rights Commission (OCRC) is voluntary – not mandatory.

The following is a list of some of government agencies and some of the laws they are charged with enforcing:

  • EEOC:  Enforces Title VII of the Federal Civil Rights Act which prohibits discrimination based upon race/color, national origin, religion, sex, gender and retaliation.  The Americans with Disabilities Act (ADA) and Rehabilitation Act forbid discrimination based upon disability.  The Age Discrimination Act (ADEA) prohibits age discrimination.  Also enforces the Pregnancy Discrimination Act and Equal Pay Act.

 Administrative Charges are mandatory before filing a law suit.

  • Department of Labor (DOL):  Enforces the Federal Family Medical Leave Act (FMLA) which entitles certain employees to 12 weeks of job-protected leave.  Also enforces the Fair Labor Standards Act (FLSA) that contains the provisions for the federal minimum wage and overtime requirements.

 Administrative Charges are not mandatory.

  • National Labor Relations Board (NLRB): Enforces the National Labor Relations Act (NLRA).   The NLRA establishes the right to engage in concerted activity, and to join, form and organize a labor union.  Prohibits employers from engaging in unfair labor practices.  Charges must be filed within 6 months.

 Administrative Charges are mandatory.

  • Ohio Civil Rights Commission (OCRC):  Enforces State law prohibiting discrimination based upon race/color, sex, gender, religion, national origin, disability, age and military service.

 For MOST claims, charges are not mandatory – Age claims are an exception.

You do not have to retain an attorney in order to file charges.  The employees who work at these agencies are usually very helpful to the public.  However, a few words of caution are in order:  It is very important to file a timely charge.  If you believe you have a claim, don’t delay.  Make contact with the appropriate agency as soon as possible.  You will be required to put your charge in writing and swear to the truth of your statement.  Be consistent and thorough when you relate your story, give dates and names.  Provide the agency with a complete list of witnesses with telephone numbers.  With the NLRB, you will be asked to meet with an investigator to prepare a lengthy affidavit.  When I am assisting a client with filing a charge, I prepare the charge for them, serve as a point of contact for the agency and accompany them to meetings with the agency.    

Once the charge document is filed, a charge number will be assigned and the agency will serve the employer.  In the case of the EEOC and the OCRC, you will be asked whether you wish to participate in mediation before the charge is assigned to an investigator.  I always advise my clients to say yes. 

If the charge doesn’t settle early, the investigator will begin gathering facts.  The employer will be given an opportunity to respond to the charge and will be required to provide a number of relevant documents.  The investigator may request additional information from the charging party.  This can be a very long and frustrating process.  Months may go by with little or no activity.

Once the investigation is concluded the agency will determine whether there is sufficient evidence to go forward.  The Ohio Civil Rights Commission has an administrative hearing process, so, if the OCRC investigator concludes that there is probable cause that the employer engaged in an unlawful act, the investigator can refer the case for a hearing before an administrative law judge (ALJ).  The NLRB also has an administrative hearing process.  If the EEOC finds probable cause, they will confer with the U.S. Attorney to decide whether to prosecute the case.  At or before the agency issues a determination, they may make a final attempt to settle the case through conciliation.

For those of you who are contemplating a charge against an employer, call our offices for a more detailed analysis of the specific process used by each agency, or visit the agency website:

 EEOC:        https://www.eeoc.gov/employees/charge.cfm

 OCRC:        https://crc.ohio.gov/FilingaCharge.aspx

 NLRB:        https://www.nlrb.gov/what-we-do/investigate-charges

 DOL:          https://www.dol.gov/whd/workers.htm

 

             

 

                                   

 

 

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