Regardless of whether you are the employee or an employer involved in a Bureau of Labor and Industries (“BOLI”) complaint process, it can be perplexing. The best way to deal with your concern is to fully understand your rights, responsibilities, and the overall process. The following is a guide to the different parts of a BOLI complaint.
Step one: the complaint
The employee usually contacts BOLI by phone and speaks with an intake officer. If BOLI determines that the employee may have a factual basis for a complaint, and the complaint is timely (generally 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 writes a discrimination complaint which is then signed by the complainant. BOLI then opens a case and assigns a case number and a lead civil rights investigator. If the basis for filing is covered by both Oregon and federal law, and if the complaint meets EEOC guidelines, the complaint is automatically “double-filed” with the EEOC.
Step two: the employer is notified
The employer will be notified that a charge has been filed with BOLI and / or the EEOC and will be provided with the name and contact information of the investigator assigned to the case.
The letter will also describe when the employer’s response to the complaint is due, usually 14-21 days, but sometimes this time frame can be extended.
Step three: document production
BOLI will request the relevant documentation of the allegation and defenses from both the employer and the employee. This will generally include the personnel file, text messages and / or emails 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 reject claims.
Step Four: Position Statement
Within 14-21 days, the employer must submit a “Position Statement.” It is “required” even though the employer has the option of not responding, but, if the employer does not respond, BOLI will make a factual finding based solely on the information provided by the employee. A position statement establishes the employer’s perspective on the incident and should address each of the employee’s claims and correct any factual errors in the employee’s complaint.
Step five: telephone interview with the employee
After the employer provides a Position Statement, the employee will be contacted for a telephone interview. The interview covers each discriminatory act indicated in the complaint and its date of occurrence. The employee must be able to tell the investigator how each discriminatory act is linked to its protected class (es). The investigator may ask the employee to provide the following information: identify witnesses who can corroborate relevant facts; identify comparators (other employees or people who, in a situation similar to his, were treated the same or differently from him by the respondent); provide copies of any relevant documents in his possession or available to him (the investigator may ask you to make reasonable efforts to obtain certain information, such as medical records or unemployment hearing transcripts); and describe the details of any relevant documents that are not available to him.
(Optional) Step Six: Research Conference
During an investigation, the investigator may require attendance at an investigative conference. The purpose of an investigative conference is to identify points of agreement and disagreement and, if possible, to resolve any disputes and resolve the complaint.
Step Seven: Completing the Investigation
Once the investigator completes his investigation, the information is transmitted to the BOLI Division Management. If the Division finds substantial evidence of a violation, a formal Notice of Determination of Substantial Evidence is issued and it is likely that BOLI will attempt to mediate a settlement. If no violation is found, the Division dismisses the case and notifies the complainant and the respondent of the dismissal.
Finally, once the case is closed, the complainant is provided with information about the possible right to file a civil action in court.
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