BOLI Complaint Process – Civil Rights Cases

by Joel Christiansen

The Bureau of Labor and Industries Civil Rights Division (BOLI) is the Oregon administrative agency that enforces several important Oregon employment laws. Employees who wish to report unlawful employment practices may file complaints of unlawful employment practices with BOLI. BOLI civil rights complaints may be filed personally or through an attorney.

This article provides fundamental information regarding the BOLI Civil Rights Division complaint process. It does not address wage and hour complaints filed through BOLI’s Wage and Hour Division.

 

About BOLI’s Civil Rights Division

BOLI enforces Chapter 659A of the Oregon Revised Statutes (ORS). ORS Chapter 659A protects employees from unlawful discrimination, retaliation, and harassment in the workplace. ORS Chapter 659A also sets forth other employee rights related to: (1) opposing and reporting unlawful activities (e.g., whistleblowing); (2) participating in administrative, civil, and criminal proceedings; (3) on-the-job injuries; (4) disabilities; (5) family and medical leave; and (6) crime victims. BOLI also enforces claims of discrimination or retaliation for making certain safety-related reports or complaints. ORS 654.062.

Violations of ORS Chapter 659A are typically called unlawful employment practices. See e.g., ORS 659A.030(1)( unlawful discrimination and retaliation are unlawful employment practices), ORS 659A.040 (failure to reinstate injured workers in accordance with the law is an unlawful employment practice), ORS 659A.183 (denying protected leave to an eligible employee is an unlawful employment practice).

ORS 659A.800(1) authorizes BOLI to:

take all steps necessary to eliminate and prevent unlawful practices. To eliminate the effects of unlawful discrimination, [BOLI] may promote voluntarily affirmative action by employers, labor organizations, governmental agencies, private organizations and individuals and may accept financial assistance and grants or funds for this purpose.

BOLI has “general jurisdiction and power for the purpose of eliminating and preventing unlawful practices.” ORS 659A.800(2). BOLI’s powers specifically include the right to “conduct investigations, issue subpoenas and subpoenas duces tecum, administer oaths, obtain evidence and take testimony in all matters relating to the duties required under [ORS Chapter 659A].” ORS 659A.800(4).

Despite its broad power, it is important for parties to understand that BOLI is a busy state administrative agency. Like many government administrative agencies, BOLI assists a large number of individuals and businesses. For both legal and practical reasons, BOLI’s capabilities are limited.

BOLI does not have jurisdiction to enforce many important laws. For instance, BOLI does not address: (1) tort claims; (2) many contract-based claims; (3) federal statutory claims outside of BOLI/EEOC jurisdiction; or (4) Oregon statutory claims outside of BOLI’s jurisdiction.

I typically recommend that parties involving in potential or pending BOLI complaints consult with a qualified employment attorney. In many cases, it can be helpful to have qualified counsel help guide you through the BOLI process.

Attorney Representation in BOLI Civil Rights Complaints

Individuals are allowed to file BOLI complaints personally through BOLI’s intake procedure or through counsel (e.g., an attorney-drafted BOLI complaint). OAR 839-003-0025(1) (“A person or the person’s attorney may file a complaint, in person or by mail, with the division at any bureau office in the state of Oregon.”).

I believe that most businesses facing BOLI civil rights complaints should retain counsel. However, it may be difficult for employees to obtain counsel where: (a) a case involves a small amount of damages (e.g., wage loss, loss of benefits, emotional distress, etc.);  (b) there is not sufficient evidence of unlawful conduct (e.g., no witnesses, documents, or other records); (c) an employer has a legitimate lawful justification for its actions; (d) there is proof that the complainant/plaintiff engaged in wrongdoing; (e) an employer does not have any assets or insurance to satisfy a judgment; or (f) the law provides limited remedies.

To file a BOLI Civil Rights Complaint without counsel, an employee typically fills out and submits BOLI’s intake questionnaire. Anything written on a submitted intake questionnaire may become a public record. After completing a screening process, an intake officer at BOLI may draft a brief written document called a “Complaint” on the employee’s behalf. The employee revises, executes, and files that complaint with BOLI to commence administrative proceedings.

An employee who is represented by counsel will often bypass BOLI’s intake questionnaire and screening process because an attorney may draft and file a BOLI complaint on an employee’s behalf. Attorneys may be also able to assist BOLI investigators with identifying and obtaining evidence, resolving legal issues, and settling claims.

Time Limitations for BOLI Complaints

A one-year deadline applies to many Oregon state law unlawful employment practice claims. ORS 659A.875(1); OAR 839-003-0025. This period may be extended for claims filed in a BOLI complaint within a one-year period. ORS 659A.875(2).

Actual deadlines are often significantly shorter for a variety of reasons, including: contractual agreements, tort claim notice requirements, and other case-specific statutory deadlines (e.g., 180/300 day EEOC filing deadline). One Oregon statute requires contact to BOLI within a 90-day period:

A person alleging discrimination for reporting or opposing unsafe or unhealthy work conditions under [OR-OSHA] must contact [BOLI] within 90 days of having reasonable cause to believe that such violation has occurred.

OAR 839-003-0031(2).

Regardless of whether an employee is represented by counsel, the filing date of a BOLI complaint is calculated based on the date “[BOLI] receives a complaint” that meets BOLI’s requirements. OAR 839-003-0025(2). Employees should understand that BOLI’s intake questionnaire may not constitute a “complaint” for the purpose of a statutory limitation period.

After closing an investigation, BOLI and/or EEOC usually issues right to sue letters that provide complainants with a 90-day period to commence a lawsuit regarding the alleged unlawful employment practices. See, e.g., ORS 659A.880ORS 659A.875(2)OAR 839-003-0050(5) and (7).

Specific time limitations in employment law cases can be a complicated matter. Discussing this topic in sufficient detail is beyond the scope of this article. I urge employees to be cautious about deadlines that might apply to their cases and, when in doubt, consult with counsel.

The BOLI Civil Rights Division Case File

Employees should understand that all documents related to BOLI’s administrative investigation become part of a public file. This file includes: (1) the intake questionnaire; (2) the complaint and any amended complaints; (3) the employer’s position statement; (4) complaint-related correspondence; (5) interview reports; (6) investigator notes and research materials; and (7) documents submitted by the parties. Employees should bear this in mind when submitting written materials to BOLI or communicating with a BOLI investigator.

“After the complaint is closed, a copy of the closed file will be available for a fee. To obtain a copy of a closed file a person must make a written request to [BOLI].” OAR 839-003-0080(2).

According to BOLI’s website, “Oregon public records laws prohibit the Bureau from releasing any portion of the file, other than the original complaint, until the case is closed.  […] Certain information that is exempt from disclosure under public records law, such as social security numbers and medical information, will remain confidential even after closure, and will be removed prior to copying the file.” (Link)

Co-Filing BOLI Civil Rights Complaints With the U.S. Equal Employment Opportunity Commission (EEOC)

BOLI frequently works with the EEOC in cases involving violations of state and federal statutes. Specifically,

[i]f a complainant wants to file a complaint alleging facts that would also violate federal discrimination statutes administered by the [EEOC] and the complaint meets federal filing requirements, the division may accept it on behalf of EEOC and co-file the complaint with EEOC. Under a work-sharing agreement between the division and EEOC the division in most instances, will process the complaint for both agencies.

OAR 839-003-0015.

Co-filed BOLI/EEOC complaints are also subject to special withdrawal procedures. “If the complainant wants a federal ‘right to sue letter,’ the complainant must provide a written request to EEOC or to the division. If the complainant makes the request to the division, the division will forward the request to EEOC.” OAR 839-003-0045.

BOLI Civil Rights Division Investigations

Oregon administrative rules empower BOLI to “investigate the allegations contained in a complaint to determine objectively whether there is substantial evidence of unlawful discrimination.” OAR 839-003-0065(1). Investigations may include interviews with parties and witnesses and examination and analysis of written documents. OAR 839-003-0065(2).

During the interview process, a BOLI investigator may question witnesses and create interview reports. A BOLI investigator may request a party or witness to confirm by signature that the investigator’s interview report is an accurate representation of the interview. OAR 839-003-0065(6). The interviewed party or witness is allowed to submit additional comments regarding the interview. Id.

When BOLI requests documents from a party, those documents are typically due “within 21 days of the date of [BOLI’s] written request.” OAR 839-003-0065(7). BOLI may also issue subpoenas to access “premises, records and witnesses.” OAR 839-003-0065(8).

In certain cases, BOLI has the authority to conduct fact-finding conferences to gather information relevant to a complaint. OAR 839-003-0060.

BOLI’s “Substantial Evidence” Standard

The Civil Rights Division is required to “either issue a Substantial Evidence Determination or […] dismiss the complaint” in every case. OAR 839-003-0065(9).  Substantial evidence means “[p]roof that a reasonable person would accept as sufficient to support the allegations of the complaint[.]” OAR 839-003-0005(17)(a). BOLI’s substantial evidence standard is not the same as a preponderance of the evidence standard (e.g., more likely that not) or other standards used in court proceedings.

Employees who cannot provide substantial evidence to BOLI may nonetheless have additional legal rights through the courts or private dispute resolution avenues (e.g., arbitration and mediation). As BOLI explains on its website, “[p]lease be aware that a dismissal does not necessarily mean the Complainant’s claims have no merit, as there may be additional evidence the Investigator did not discover, and/or other legal claims over which the Bureau has no jurisdiction.“ (Link)

Settlement Procedures in BOLI Civil Rights Cases

Parties are always free to settle a BOLI complaint. “The division encourages complainants and respondents to resolve complaints by mutual agreement at any time. The division will facilitate settlement negotiations […] at any time during the investigation.” OAR 839-003-0055(1)(emphasis added).

Settlement is a voluntary process intended to resolve claims without protracted administrative proceedings or litigation in court. Settlement can be an effective method for resolving certain employment-related disputes. Best practices for settling a BOLI complaint will vary on a case-by-case basis. Settlements may be achieved informally (e.g., discussions between the parties’ counsel) or formally (e.g., by BOLI mediation, judicial settlement conference, etc.). Specific questions about the settlement process should be directed to a qualified employment attorney.

Employees should understand the implications of any settlement they have accepted or are considering. Most settlement agreements require employees to waive all of their legal rights in exchange for some kind of payment and/or other terms. Some settlement agreements may also impose contractual obligations on employees, including confidentiality provisions, non-disparagement agreements, agreements not to reapply for employment, arbitration clauses, choice of law and venue clauses, and attorney fee provisions.

BOLI Civil Rights Division File Closure Procedure

An employee may “voluntarily withdraw a complaint at any time by giving the division written notice of the complainant’s decision to withdraw.” OAR 839-003-0045. BOLI may also dismiss a complaint: (a) if “it determines that the bureau has no jurisdiction over the allegations of the complaint.” OAR 839-003-0050(1); (b) “unless substantial evidence of unlawful discrimination is found” OAR 839-003-0050(5); (c) “if the complainant files a proceeding, based on the same set of facts, with another agency having the authority to provide remedy to the complainant for the alleged discrimination.” OAR 839-003-0050(2); (d) “[i]f a complainant or the complainant’s attorney fails to cooperate with the division” OAR 839-003-0050(3); or (e) if BOLI elects to “administratively dismiss a complaint without investigation.” OAR 839-003-0050(7).

In most cases, regardless of the reason for closing a file, BOLI and/or EEOC will issue right to sue letters that provide the employee 90 days to commence a lawsuit to address the alleged unlawful employment practices. See, e.g., ORS 659A.880; ORS 659A.875(2); OAR 839-003-0050(5) and (7).

Filing a Lawsuit Before, During, or After a BOLI Civil Rights Complaint

Unlike federal anti-discrimination laws, BOLI-enforced statutes do not typically require aggrieved employees to file complaints with BOLI as a prerequisite to filing a lawsuit. “A person is not required to file a complaint of a violation of state law with the division before filing a civil action.” OAR 839-003-0020(1)(a). However, by filing a lawsuit before proceeding with BOLI, “[a] person waives the right to file a complaint with [BOLI] with respect to those matters alleged in the civil action.” OAR 839-003-0020(1)(b).

Additionally, filing a BOLI complaint does not prevent an employee from later filing a civil action against the employer. OAR 839-003-0020(2). However, when BOLI receives notice from a party that “a civil action has been filed, [BOLI] will dismiss the complaint.” Id.

Employees should also be aware of any 90-day right to sue deadlines as described in the previous section. Most federal anti-discrimination laws require filing with an administrative agency, most commonly the EEOC, prior to initiating a lawsuit. This is referred to as ‘exhaustion of administrative remedies.’