The Michigan Department of Civil Rights (MDCR) recently implemented a new system for handling employment discrimination complaints. This new system is called the "Problem Resolution Process." It emphasizes early resolution techniques which often involve an MDCR investigator's direct contact by telephone to an employer in which the investigator asks the employer for very specific information. One of the MDCR's goals is to reduce its backlog of complaints by making an early assessment of the validity of employee complaints.
Prior to this new procedure, the MDCR would interview individuals who wished to make a complaint and would file a formal complaint if it appeared there was a viable complaint based only on the information provided by the individual. This formal complaint was then mailed to the employer, often with interrogatories to be answered in writing. The MDCR's new Problem Resolution Process seeks information from the employer before deciding whether a complaint should be filed.
Now when a prospective complainant contacts the MDCR to file a complaint, the MDCR may immediately contact the employer about whom the individual is complaining. MDCR investigators typically telephone the employer and either ask that information be provided over the telephone or ask that written information be submitted. According to George Wirth, an MDCR staff attorney, an investigator's pre-complaint inquiries to an employer makes the MDCR process more efficient because an analysis of the claim can be made after talking to both sides. "We recognize that not every concern brought to us is a civil rights complaint and we would like to try to resolve it by picking up the phone and hearing the other person's side of the story," Wirth said.
While employers must respond to formal written complaints, employers are not required to respond to an MDCR investigator's request for information either by telephone or by letter prior to the issuance of a formal complaint. Employers should be cautious in providing information to MDCR investigators because any information provided at this pre-complaint stage can become part of the MDCR's file and treated as an admission by the employer.
The information an employer provides to the MDCR prior to the issuance of a formal complaint can persuade the MDCR either that no valid claim exists or that there may be a valid claim upon which a formal complaint should be issued. Because of this, information provided at this pre-complaint stage can be critical. Despite the apparent informality of this new MDCR process, employers should first decide whether to provide any information on a particular matter. Also, if information is to be provided, the employer should use the telephone contact from the MDCR to clarify the information the investigator seeks and should provide the information in writing in order to avoid misunderstandings. Additionally, only employers who are very familiar with the MDCR and its investigations should provide information without first obtaining legal counsel.
An employer's refusal to provide information at the pre-complaint stage does not automatically result in a formal complaint. The new process requires that a team, consisting of a coordinator, several MDCR representatives and a staff attorney, determine whether a complaint should be issued.
The MDCR has adopted strict new time limits for its investigations. Formerly, it took an average of twelve months to conclude an investigation. Under the new process, investigations are to be completed within 84 days and investigators have only a few weeks to attempt an informal resolution, with the remaining time for the completion of a formal investigation if the informal efforts fail. The MDCR has taken the position that it will not give extensions of time for answers to formal complaints or answers to interrogatories because of these new tighter time limits. Answers to MDCR complaints and interrogatories are required within 28 days. If answers to complaints and interrogatories are not provided in 28 days, the MDCR now seeks court orders to compel answers.
The new process has produced both good and bad results for employers. Informal investigations have resulted in MDCR findings that there is no valid claim, with the result that it closes files at the informal resolution stage. Bad results have occurred when employers have provided information to MDCR investigators without carefully composing their answers, so that incomplete or inaccurate information is provided which can form the basis for a formal complaint. We will provide updates on this process as further information becomes available.