No Extensions
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 involve an MDCR investigator's direct contact by telephone or letter to an employer in which the investigator asks 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 these complaints brought to it by individuals. 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. The MDCR's new Problem Resolution Process seeks information from the employer before deciding whether a complaint should be filed.
The MDCR's brochure, "Complaint Resolution Option" describes this new informal process, and the second half summarizes the formal complaint and investigation processes if the informal resolution fails.
Now, when a prospective complainant contacts the MDCR to file a complaint, the MDCR can 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. Employers may also be contacted by letter. The MDCR's form letter is attached as Exhibit B. Whether the contact is made by telephone or letter, the MDCR asks that the employer send a reply with supporting documentation within 10 days.
According to an MDCR staff attorney, an investigator's pre-complaint inquiry 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," the attorney said.
While employers must respond to formal written complaints and interrogatories sent by the MDCR, employers are not required to respond to an MDCR investigator's request for information during the informal complaint resolution process which is made either by telephone or by letter. Employers should be cautious in providing information to MDCR investigators during the informal complaint resolution process 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.
If an employer does not provide information to an MDCR investigator during this informal complaint resolution process, this does not automatically result in a formal complaint. Previously, a complaint generally would be filed based on only the complainant's claims, provided the individual was credible and was in a protected category. Now, using the new informal process, the MDCR attempts to determine whether confirming information exists prior to filing a formal complaint. Another part of the new process is that a team determines whether a complaint should be issued. The team consists of a coordinator, several MDCR representatives and a staff attorney.
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 is critical. Despite the apparent informality of this new MDCR process, employers should first decide whether to provide any information during the informal process. Also, if information is to be provided, the employer should use the telephone contact from the MDCR either to clarify the information the investigator seeks or to ask that the MDCR investigator send the request in writing. Investigators typically will do that by providing a form letter with the accompanying "Statement of Concern". No matter when an employer provides information to the MDCR, it should only be provided in writing, in order to avoid misunderstandings. Lastly, only employers who are very familiar with the MDCR and its investigations should provide information without first consulting legal counsel.
With this new process, the MDCR has implemented strict new time limits for its investigations. Traditionally, 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. As noted above, during the informal process, MDCR investigators request that a reply and supporting documentation be sent within only ten days. If the informal complaint resolution process fails and if the MDCR issues a formal complaint, the new time limits leave only 70 days for the MDCR to complete its investigation and make a determination. Because of these new tighter time limits, the MDCR has taken the position that it will not give extensions of time for answers to formal complaints or answers to interrogatories. Answers to formal 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 employers to provide answers.
While it is critical for employers to be cautious when providing information to MDCR investigators, the new process has resulted in both good and bad results for employers. The good results are that the informal investigation has 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.
Conclusion
As an employer, you may be contacted by the MDCR if a complaint is ever filed against you. Therefore, we recommend you establish a policy for dealing with an MDCR investigator when he (or she) telephones your financial institution and requests information. If you are contacted by telephone by an MDCR investigator requesting information in response to a complaint, we recommend you request the investigator to send the request in writing. We also recommend that you respond to these requests only in writing, and that you consult legal counsel before responding. In responding to an informal request, it is important to respond within 10 days of the date of the letter in order to improve the chances that your response may result in an informal resolution of the complaint. Failure to timely respond may result in a formal complaint being filed.