Your company may find itself facing a charge of discrimination with the New Hampshire Human Rights Commission from a former employee and even if you think the company has done nothing wrong, you still need to take the time to fully and accurately respond to the claims.
You should first check with your insurance company to see whether or not you have what is called Employment Practice Liability Insurance (EPLI). EPLI can help pay for your attorneys’ fees and any damages just like other liability insurance. Most general commercial liability insurance policies exclude from coverage employment practice type claims yet some policies have a certain limited amount of EPLI as a separate portion of the overall insurance package. Your company may want to consider paying for EPLI coverage as an additional endorsement on your commercial liability policy before an employment claim arises. When a claim does arise, promptly notifying the insurance company to see if there is such coverage, and providing notice of the claim is crucial.
The New Hampshire Commission for Human Rights in addition to providing your company a copy of the complaint filed by the former employee called a Charge of Discrimination will also send a detailed letter stating what is expected by the Commission’s investigator from the employer. It is critical to take that letter seriously and provide all the information the investigator requests. As the employer, it is very cost effective to make the investigator’s job easier by providing the information requested in an organized manner because it decreases the need for the investigator to follow up to get the information it had previously requested which takes more time for you and the investigator. The investigator is unbiased and is trying to fact find to determine what really happened.
When you know of a potential claim being made, you should talk to your company attorney about preserving evidence, which includes not only hard copy documents but electronic files. For example, if there are emails that are between the former employee and the supervisor she claims sexually harassed her, merely printing out copies of those emails before deleting is not appropriate. Saving the electronic version with its own electronic history allows an IT expert to confirm that the emails were not tampered with and that could be a critical piece of evidence in litigation. Further, texts on people’s phones can sometimes have critical evidence and those texts should likewise be preserved as soon as you know that there is a possibility of a claim being made. Speaking with your company attorney as to the full breadth of what you should be doing to preserve this evidence is critical. Presenting evidence that is accurate throughout the process in both the agency, and if it need be, the court, will enhance the likelihood of a favorable outcome for the company in any litigation. If you are less attentive to details in the being of the process and therefore have to change your factual representations later in order to correct a mistake, your credibility can become tarnished.
J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].