A successful West Virginia (WV) human rights complaint has the potential to damage a company’s reputation and cause financial distress. When an employee files an administrative complaint with the West Virginia Human Rights Commission (WVHRC or HRC), a chaotic time often follows for the respondent employer, beginning with the WV human rights complaint investigation. Small employers may not have any idea what to do, and larger employers know they must scramble to pull together an appropriate internal investigation, often in record time.
If your company receives an employee notice of a human rights complaint investigation in WV, contact an experienced employer defense attorney right away. At the Law Office of M. Andrew Brison, PLLC, we have the experience to advise you of the quick timeframes applicable to these claims, your obligations as an employer and best practices to mitigate potential liability, often including conducting your own, internal human rights complaint investigation.
Conducting a quick and thorough WV human rights complaint investigation is the key to a positive outcome in handling an employee’s complaint. While there can be many reasons for filing a WVHRC complaint, an experienced WV employer defense attorney can best position your business to defend the claim successfully.
The First WV Human Rights Complaint Investigation Deadline: Ten Days to File an Employer Reply to a WV Human Rights Complaint
Absent agreement otherwise, a West Virginia employer must file a written reply to a WVHRC complaint within ten days. That makes quick, decisive action critical.
WV Code § 5-11-9 prohibits employers from discriminating against employees or potential employees on the basis of race, sex, age, disability and other protected categories. Common employment actions that may lead to a charge of discrimination include:
- Failing to promote to a vacant position for which the employee is qualified
- Paying less than a peer of similar qualifications
- Failing to hire a qualified candidate
- Harassing employees
Under WV C.S.R. § 77-2-4.2, when an employer receives a WVHRC complaint and unless otherwise agreed, it has only ten days to prepare and file a written reply in response. A strong employer reply should raise any affirmative defenses in addition to describing the facts and circumstances relating to the employee’s complaint.
Is Your WV Business Subject to the WV Human Rights Act?
To be subject to an administrative human rights complaint in WV, a business must qualify as an “employer” under the WV C.S.R. § 77-7-2. By law, an employer subject to the Act is any person employing 12 or more persons in West Virginia for 20 or more weeks in the same year the discrimination allegedly took place.
The employees counted are all persons with whom the employer has an employment relationship. It does not matter if the individual works every day or on particular days. Contact an experienced WV employer defense attorney to determine whether you qualify as an employer as this is a threshold issue to include in your written reply to the Commission.
The WV Human Rights Complaint Investigation and Review Process
The procedures for a WV human rights complaint investigation and review are outlined in WV C.S.R. § 77-2-4. When a WVHRC complaint is filed, the employer is notified, and the Commission’s investigation must begin within 75 days, not to exceed 150 days. The investigation process involves interviewing or deposing persons and parties, inspecting documents and records and requesting that parties complete interrogatories or questionnaires.
If a party is non-compliant concerning a request for information or documentation, the Commission may apply an adverse inference against them and issue subpoenas to collect the information or records sought.
The complainant and respondent can agree to a settlement at any point in the WV human rights complaint investigation process. When this happens, the employee should submit a withdrawal of the claim accompanied by the written agreement, which must be signed by both parties.
If the investigation finds no probable cause to support that discrimination occurred in the specific case, the complaint will be dismissed, though the claimant may request, within ten days of receiving notice, a meeting with the Commission to discuss the proposed dismissal. If, after this meeting, probable cause is still not found, a dismissal letter, accompanied by a “right to sue” letter, is sent to the complainant, who may still pursue a civil case.
If probable cause is not found to support the specific complaint but evidence suggests a pattern of discriminatory practices, the Commission may dismiss the individual claim but proceed with prosecution of the employer in the name of the Commission.
If probable cause is found to exist, the Commission must set the matter for a public hearing and notify the respondent of the hearing and related requirements within 30 days. Both parties must also be notified in writing of their right to appear at the hearing in person and be represented by an attorney.
This hearing is conducted by an administrative law judge and must follow the rules outlined in WV C.S.R. § 77-2-5. The administrative law judge has one year from the filing of the complaint to issue a final decision according to WV C.S.R. § 77-2-9.1.
What Happens at the End of a WV Human Rights Investigation and Hearing?
If the administrative law judge finds that the employer engaged in unlawful discriminatory practices, an order is issued requiring the employer to stop engaging in the unlawful practice, submit compliance reports and reimburse the complainant for out-of-pocket losses.
When a WVHRC complaint is successful, the employer may have to pay monetary damages including:
- Backpay
- Up to $2,950 for incidental damages
- Other relief to make the complainant whole, including attorney’s fees and costs
The administrative law judge is required to dismiss the complaint when there is a finding of no wrongdoing.
Both parties have the right to appeal the decision of the administrative law judge to the Commission and request a judicial review of the Commission’s final order. An experienced WV employer defense attorney can help employers achieve a successful outcome in their WV human rights complaint investigation and legal proceedings.
Defense for a WV Human Rights Complaint Investigation and Beyond
While a human rights complaint investigation in WV has the potential to cause long-term damage to a business, moving quickly can help prevent or mitigate that damage. The Law Office of M. Andrew Brison, PLLC can help you best position your business when faced with a WV human rights complaint investigation and in the stages that follow. Call us at 304-397-8225 or complete our online contact form to schedule a consultation.