Bar News - April 16, 2014
Labor & Employment Law: Best Practices for the NH Commission for Human Rights
By: Joni Esperian
Most complaints filed at the NH Commission for Human Rights concern employment discrimination. Focusing on that category of cases, this article is meant to encourage the practices discussed here, as they benefit the citizen parties and aid the commission in efficiently investigating and resolving cases while it copes with a current shortage of resources.
The following tips represent practices employed by attorneys who are successful in their advocacy before the commission.
The best arrive with a notice of representation, a charge providing first and last date of discrimination by month/date/year format, with care taken to name the respondent(s) by their proper legal name. Those attorneys who have undertaken a search of the NH Secretary of State’s office have saved themselves and the Commission from the time-consuming process of an amendment to re-name the Respondent. In these filed charges, the allegations are written in brief and succinct style and include the prima facie elements of the alleged discriminatory basis.
Because New Hampshire still requires charges to be verified, a signature before a Notary or Justice of the Peace, who dates when the signature was witnessed and when his or her commission expires, sails the charge through to final docketing and service on the respondent.
In termination-of-employment cases, the best-practice lawyers know to put the date their client was first notified of termination as the last date of discrimination, not the date termination was effective. Of course, a terminated employee cannot have a “continuing action” as the employer/employee relationship is severed.
Many attorneys who practice before the commission and who represent respondents take care to present their response and answer thoroughly. They too file a notice of representation and, if the decision has been made that out-of-state counsel will be taking the lead, a pro hac vice motion together with an affidavit of counsel is filed according to the commission’s exact rule requirements. While the motion is pending, local counsel will provide a verified response from a representative of the respondent who has knowledge or access to knowledge of the allegations made by the complainant. The “verifier” will submit confidential witness statements or identify the confidential source of the information used to admit or deny the charge allegations, and to provide the defense.
In addition, respondent counsel will provide EEO policies, a redacted personnel file, and any additional exhibits that demonstrate respondent can prove its defense. While confidentiality may be claimed over witnesses so that the complainant does not get a copy, some attorneys want the complainant to see all documents filed with the commission from the start of the case.
Successful attorneys recognize the process at the commission involves an investigator who is neutral, and whose statutory duty is to request and review all the evidence available to determine whether there is sufficient evidence to credit the legal elements of discrimination set forth in the charge. Experienced attorneys provide the investigator with everything he or she needs to complete the investigation, rather than withholding evidence.
Attorneys who are in negotiations to settle a dispute, who let the investigator know they intend to remove to court, allow the investigator to re-prioritize his or her case list. This goes to the greater good of all citizens with matters before the commission, as staff is able to move the next case up in the queue.
Staff also appreciates those conscientious attorneys who attend to the documents necessary for closing cases, so that valuable staff time is not spent “chasing after” such documents. This is true for responses to requests for information. Requesting an extension with the agreement of the opposing party or their counsel also saves valuable time.
Experienced attorneys take advantage of our free mediation program, or involve the investigator in facilitating a resolution. If the facts are pretty awful, or if the damages are minimal, mediation facilitated with opposing counsel, the investigator, our amazing bullpen of seasoned mediators (who are available free of charge), or a private mediator makes sense. It doesn’t fit every case, but a sharp attorney will know which of his or her cases should try alternative dispute resolution.
Joni N. Esperian has been the executive director of the NH Commission for Human Rights since 2008.