Filing a BOLI Complaint in Oregon
- How to file a complaint with BOLI Oregon
- What is BOLI?
- What kind of complaints does BOLI investigate?
- How long do I have to file a BOLI complaint?
- Should I file with BOLI or the EEOC
- How to file a BOLI complaint in Oregon
- What happens during BOLI’s investigation of my complaint?
- How long does a BOLI investigation take?
- Will BOLI try to settle my case during the investigation?
- What happens after BOLI’s investigation of my complaint?
- Can I still file a lawsuit if I filed a BOLI complaint?
- Can my employer punish me for filing a BOLI complaint?
- Do I need an attorney to file an Oregon BOLI complaint?
How to File a Complaint with BOLI Oregon
Most people have heard of the Equal Employment Opportunity Commission (EEOC) before. The EEOC was established in 1965 shortly after the passage of the Civil Rights Act of 1964. The EEOC is the federal agency that investigates and enforces unlawful employment practices that violate federal laws, such as Title VII of the Civil Rights Act of 1964, the Americans With Disabilities Act, and the Age Discrimination in Employment Act, to name a few.
Most states also passed laws at the state level to protect employees from unfair employment practices. Oregon is one of those states, and, in fact, Oregon’s state laws provide much broader protections to employees in many areas. Oregon has a state-agency counterpart to the EEOC, called the Bureau of Labor and Industries (BOLI), to assist with enforcement of Oregon’s employee-protection laws.
What is BOLI?
BOLI is an Oregon state agency charged with promoting workforce development programs, investigating violations of Oregon’s wage and hour laws, and enforcing the state statutes protecting workers and citizens from discriminatory and retaliatory treatment. BOLI is led by a Commissioner, who is elected for a term of four years.
BOLI is organized into four separate divisions:
- Civil Rights Division – This division is charged with investigating and enforcing laws prohibiting discriminatory employment practices, retaliation against those who report illegal activities (“whistleblower” retaliation), and for violations of Oregon’s employee leave laws.
- Wage & Hour Division – This division investigates complaints made by workers who believe that their employers have violated the laws involving unfair wages and working conditions, including minimum wage and overtime laws.
- Apprenticeship & Training Division – This division works with businesses, labor unions, and government agencies to promote apprenticeship in a variety of occupations and industries. The overarching purpose of this division is to promote the development of highly-skilled workers for quality career opportunities through paid on-the-job training and education. This division focuses most of its efforts on the construction and manufacturing industries.
- Commissioner’s Office/Program Services Department – This division is responsible for providing internal support and oversight services to the other divisions, including policy direction, fiscal controls, and employee services. This division basically manages the other three divisions.
To learn more about the history of BOLI, click here.
What kind of complaints does BOLI investigate?
BOLI is authorized by statute to take “all steps necessary” to eliminate and prevent unlawful practices. ORS 659A.800. “Unlawful practice” is defined as any employment practice that violates Chapter 659A of Oregon’s statutes, or any other practice that violates any statute that can be enforced under the provisions of Ch. 659A. ORS 659A.800; 659A.001(11)-(12).
There are dozens of “unlawful practices” prohibited by Chapter 659A and other statutes. To efficiently investigate these unlawful practices, BOLI divides the cases it investigates between the Civil Rights Division and Wage & Hour Division. However, because complaints can allege multiple violations, sometimes both divisions will be involved with investigating a single complaint if the complaint contains “unlawful practices” falling within the purview of both divisions.
Importantly, BOLI does not have the authority to investigate every type of unlawful employment practice. BOLI’s authority to investigate statutory violations depends on whether those statutes allow for enforcement through BOLI’s complaint process. Not all employment law violations are statutory, and not all statutory violations allow for BOLI enforcement. For example, BOLI does not address (1) worker’s compensation injury claims (but it does address worker’s compensation retaliation claims), (2) common law wrongful discharge claims, (3) breach of employment contracts, and (4) violations of federal statutes.
Below are descriptions of the types of cases investigated by both the Civil Rights and Wage & Hour Divisions. While these lists cover most bases, please know that they are not comprehensive. If you have any questions about whether your workplace complaint can be investigated by BOLI, feel free to give us a call. We would be happy to talk to you about your BOLI enforcement options.
Civil Rights Division
Complaints alleging a violation of a statute contained in Chapter 659A will generally be assigned to BOLI’s Civil Rights Division. These violations include (but are not limited to):
- Discrimination or harassment on the basis of race, color, religion, sex (including pregnancy), sexual orientation, national origin, marital status, or age (ORS 659A.030(1)(a)-(e))
- Retaliation for opposing or reporting discriminatory employment practices (ORS 659A.030(f))
- Discrimination against injured workers/worker’s compensation retaliation (ORS 659A.040)
- Discrimination or harassment on the basis of disability (ORS 659A.112)
- Retaliation against whistleblowers who report suspected illegal activities (ORS 659A.199)
- Retaliation against whistleblowers who report misconduct by government or nonprofit organizations (ORS 659A.203)
- Discrimination against military personnel and veterans (ORS 659A.082)
- Failure to reasonably accommodate pregnant workers (ORS 659A.147)
- Denial of, or retaliation for taking, family leave (ORS 659A.183)
- Discrimination or retaliation against victims of domestic violence, harassment, sexual assault, or stalking (ORS 659A.290)
- Discrimination based on family relationships (ORS 659A.309)
- Discrimination based against tobacco users (ORS 659A.315)
- Discrimination based on credit history (ORS 659A.320)
- Requiring employees to disclose personal social media activity or use a personal social media platform (ORS 659A.330)
- Requiring applicants to disclose compensation history (ORS 659A.357)
Additionally, the Civil Rights Division investigates violations of the following statutes:
- Denial of, or retaliation for taking, accrued sick leave (ORS 653.601 et seq)
- Retaliation for reporting unsafe or unhealthy working conditions (ORS 654.062)
- Equal Pay Act violations (wage discrimination) (ORS 652.220)
- Failure to provide employee records (ORS 652.750)
This is not a comprehensive list of cases investigated by the Civil Rights Division. To view more discriminatory employment practices investigated by BOLI, please visit BOLI’s workplace discrimination page here.
Wage & Hour Division
As the name implies, the Wage & Hour Division investigates violations of Oregon’s laws concerning wages earned and hours worked by employees. Some of these laws include:
- Worker misclassification
- Minimum wage laws (ORS 653.025)
- Overtime compensation laws (ORS 653.261)
- Unpaid wages/final paycheck laws (ORS 652.140)
- Meal and rest break laws (ORS 653.040)
- Maximum working hours laws (ORS 652.010 et seq.)
- Predictive work schedule laws (ORS 653.415 et seq.)
- Child labor laws (ORS 653.305 et seq.)
- Paystub information requirements (ORS 652.610)
- Retaliation against employees for discussing wages (ORS 659A.355)
How long do I have to file a BOLI complaint?
All legal claims are subject to one or more “statutes of limitations.” A statute of limitation is simply a statute that prescribes the maximum time period for you to bring a legal claim after the legal violation has occurred. The deadlines differ depending on the type of legal violation. The same is true with BOLI complaints. There are different statutes of limitations for different types of employment law violations.
Below is a list of statutory employment law violations and the applicable deadline for bringing a claim.
|BOLI Deadline||Case Type||Statutes|
|90 days||Retaliation for reporting unsafe or unhealthy working conditions (but one year for a lawsuit)|
|1 year||Retaliation for reporting illegal activities|
|1 year||Retaliation against public and nonprofit employees for reporting misconduct, wage, mismanagement, etc.|
|1 year||Injured worker discrimination/worker’s compensation retaliation|
|1 year||Failure to provide pregnancy accommodations|
|1 year||Denial of, or retaliation for taking, family or medical leave|
|1 year||Denial of, or retaliation for taking, accrued sick time|
|1 year||Discrimination against domestic violence and sexual assault victims|
|1 year||Discrimination based on family relationships|
|1 year||Discrimination based on tobacco use|
|1 year||Discrimination based on credit history|
|1 year||Retaliation for discussing or disclosing wages|
|1 year||Wage discrimination|
|1 year||Failure to pay overtime (but two years for a lawsuit – ORS 12.110(3))|
|1 year||Minimum wage violations (but six years for a lawsuit – ORS 12.080(1)-(2))|
|1 year||Unpaid wages (but six years for a lawsuit – ORS 12.080(1)-(2))|
|5 years||Discrimination or harassment on the basis of race, color, religion, sex (including pregnancy), sexual orientation, national origin, marital status, or age|
|5 years||Retaliation for opposing or reporting discriminatory employment practices in violation of ORS 659A.030(1)(f)|
|5 years||Aiding and abetting unlawful employment practices|
|5 years||Discrimination or retaliation against a military personnel and veterans|
|5 years||Disability discrimination in violation|
|5 years||Entering into nondisclosure or nondisparagement agreements|
While we hope this list is helpful to give you a general idea of how long you have to file a claim, you should also be aware that there are exceptions to these general statutes of limitations that may shorten or lengthen the time period you have to file a claim.
For example, you may have a contractual agreement with your employer that requires you to bring your claims in a shorter amount of time.
Or, if you worked for a “public body,” you may need to give your employer notice of your claim within 180 days of your injury or loss before you can bring legal action.
In some cases, your deadline may not begin to run until you have reasonable cause to believe a legal violation occurred. So if your employer took steps to conceal its unlawful conduct, your statute of limitations may be “tolled” or delayed until you have enough information to believe that your rights were violated.
Determining your deadline for filing your case can be tricky, and you don’t want to mess it up or you could lose your rights. Statutes of limitations can also change when new laws are passed, so please do not take anything in this article as legal advice as to when you must file your claims. There may also be different deadlines for filing a lawsuit or your legal claims under federal law.
If you have questions about when you must file your BOLI complaint, we suggest that you consult with an experienced employment lawyer who can review the facts of your case and determine the appropriate filing deadline.
Should I file with BOLI or the EEOC?
Sometimes an employer’s conduct can violate both state laws enforced by BOLI and federal laws enforced by the EEOC. When this happens, the affected employee may wonder if he or she needs to file complaints with both agencies.
This is an important question because the federal laws enforced by the EEOC generally require employees to first file an EEOC complaint (called a “Charge of Discrimination”) before bringing a lawsuit. This is called “exhaustion of administrative remedies.” If an employee doesn’t “exhaust” his or her remedies through the EEOC, he or she cannot later bring a lawsuit against the employer. There is no such requirement for employees bringing claims under Oregon state law.
The good news for employees is that BOLI and EEOC have a “work-sharing agreement” under which each agency agrees to accept complaints on behalf of the other agency, assuming the complaint alleges facts that would violate the statutes enforced by both agencies. OAR 839-003-0015.
This means that you can file a complaint with one agency and it will be considered “dual-filed” or “co-filed” with both agencies. However, for one agency to accept a complaint on behalf of the other, the complaint must meet the filing requirements of the other agency, including filing deadlines.
When given the option, we usually choose to utilize the BOLI complaint process. We generally find it is a faster process and the investigators are easier to work with.
A word of caution: Federal claims investigated by the EEOC are not subject to the same statute of limitations for state law claims set forth in the preceding section of this article. Generally, you have either a 180-day or 300-day filing deadline for your federal claims, depending on whether you decide to file with BOLI or the EEOC.
If you intend to “co-file” your state and federal claims together with BOLI, you must file your complaint within 180 days of the last act of discrimination to ensure you “exhaust” your federal claims. If you decide to file with the EEOC, or you are beyond the 180-day co-filing deadline for BOLI, you have 300 days to file a Charge of Discrimination with the EEOC for purposes of exhausting your federal claims.
Also, before you can bring your federal claims in court, you must obtain a “right to sue” letter from the EEOC. If your complaint is filed with BOLI and then BOLI co-files it with the EEOC, you will need to make a written request for an EEOC “right to sue” letter at the end of BOLI’s investigation. You can direct your written request to either BOLI or the EEOC. OAR 839-003-0045.
How to file a BOLI complaint in Oregon
You can file a BOLI complaint with the assistance of an attorney, but you are not required to have one. While we certainly encourage you to consider retaining counsel to assist and advise you throughout the BOLI process (see “Do I Need an Attorney to File an Oregon BOLI Complaint?” section below), some folks have trouble getting a lawyer to take their case for various reasons. Sometimes lawyers can’t take on another case because their caseload is already too heavy. Sometimes the lawyer doesn’t see enough evidence to prove a legal violation. Sometimes there just isn’t enough at stake to warrant the expense of hiring a law firm.
If you are unable to obtain counsel to take your case, you still have the option to file a BOLI complaint on your own. While not ideal, this may be your best option for obtaining relief without having to file a lawsuit. A lawsuit will have significant costs, whereas filing a BOLI complaint is free. A lawsuit will also have many technical procedures and rules that you must follow, which can be very difficult to navigate on your own.
While BOLI dismisses the vast majority of employee complaints for lack of substantial evidence (see “What Will BOLI Do After Investigating My Complaint?” section below), you likely have a better chance of obtaining a favorable outcome on your own through the BOLI process than on your own in a lawsuit.
As noted above, BOLI divides its investigation and enforcement responsibilities between the Civil Rights Division and the Wage & Hour Division. Each division handles different types of cases, and the process for filing a complaint will depend on what type of case you have. The process for each division is summarized below:
Civil Rights Division
If your complaint involves discriminatory employment practices such as sexual harassment, race discrimination, wrongful termination, etc., you will need to file your complaint with the Civil Rights Division.
The filing process starts on BOLI’s website here. You will first fill out several pages of a questionnaire, which will then be forwarded to an Intake Officer. The Intake Officer will then review your information, determine whether BOLI has jurisdiction to investigate your complaint, and if so, you will be contacted to set up an interview.
***IMPORTANT*** Filling out the online questionnaire is not the same as filing a complaint for purposes of making sure your complaint is filed on time. If you don’t file a complaint before the statute of limitations applicable to your case expires, you will lose your rights to pursue legal action even if you filled out a questionnaire before the deadline.
If you are close to the deadline for filing your complaint, you should consider skipping the questionnaire and filing a complaint directly with BOLI. Unfortunately, there is no online option for this. If you are up against a deadline and want to make sure your complaint gets timely filed, you can write or type up your complaint and email it directly to email@example.com. At the very least, you will want to include the following information in your complaint for it to be accepted by BOLI:
- Your name and address
- The name and address of everyone you are naming as a “Respondent”
- Identify what kind of discrimination, harassment, retaliation you experienced (e.g. sex discrimination, racial harassment, age discrimination, etc.)
- A narrative description of what happened and why you believe you were discriminated against
- Your signature
Your document must contain all of these pieces of information to constitute a proper “complaint.” OAR 839-003-0005(5). You must also sign your complaint “under oath or affirmation.” OAR 839-003-0005(17). You can satisfy this requirement by having your complaint notarized, or including the following language above your signature:
“I hereby declare under penalty of perjury, that the above statement is true and correct to the best of my knowledge and belief, and that I understand it is made for the use as evidence in an official proceeding. I understand that the above statement is a public record and that the information herein may be disclosed to any person, at any time.”
After the Intake Officer determines your complaint is one that BOLI can investigate, the Intake Officer will contact you to discuss your situation in more detail. Once the Intake Officer has the information he or she needs, the Intake Officer will then prepare a formal complaint for you to review and will mail it to you.
You should review the complaint carefully. The complaint is a sworn statement, and any inaccuracies or inconsistencies could be used to undermine your credibility or cast doubt on your claims. Therefore, it is important to make sure the complaint accurately reflects the facts. Keep it concise and to avoid any exaggerations. If you have any documents to substantiate your claims, make sure the description of events in your complaint lines up with what the documents and other evidence show.
Feel free to handwrite your changes onto the complaint form. Crossout any inaccurate language. Insert any additional language needed for clarification. Make sure your address and contact information are current.
Once the complaint is finalized to your satisfaction, you will need to verify and sign the complaint. The complaint will be considered verified if it is notarized. If you do not have access to a notary, you can alternatively sign “under penalty of perjury” as mentioned above.
Once your complaint is signed and verified, you need to mail or fax it to the Civil Rights Division’s Intake Office in Portland:
Bureau of Labor and Industries
800 NE Oregon Street
Portland, OR 97232-2180
The date that BOLI receives your complaint will be the date that it is considered filed.
Filing your complaint by mail can be risky if you have a filing deadline that is fast approaching. A delay in the mail could cause you to miss your deadline. If you are close to the deadline, you should consider submitting your complaint in person at the Portland Office, faxing your complaint to BOLI, or emailing your complaint to firstname.lastname@example.org. That way, there will be no question about the date your complaint was filed.
After receiving your complaint, BOLI will send you a letter confirming that your complaint has been filed, along with a file-stamped copy of your complaint.
Wage & Hour Division
If your complaint involves unpaid wages, unlawful wage deductions, unpaid overtime, meal and break periods, or final paycheck issues, your complaint should be directed to the Wage & Hour Division.
The process is similar, but not the same, for filing complaints with the Wage & Hour Division. Submitting a complaint to the Wage & Hour Division is more streamlined. Unlike the Civil Rights Division, which only allows you to submit a “questionnaire” online, you can submit your complaint directly to the Wage & Hour Division using its online form. This allows you to skip several steps – filling out a questionnaire, answering questions from an Intake Officer, waiting for the Intake Officer to send you a draft complaint, reviewing and editing the complaint, getting the complaint notarized, and transmitting the complaint by mail, fax, or in-person.
While there are less steps to the process, you should still take care to make sure the information you submit is accurate and complete. You must also make sure your complaint is submitted within the time period required, or you could lose your rights to any unpaid wages you are owed.
You should also be prepared to provide any evidence you have to substantiate your claim. Common evidence used to prove wage claims includes timecards, paycheck stubs, work schedules, emails or text messages showing the dates and times you worked, employment contracts, or anything else you think might support your case.
What happens during BOLI’s investigation of my complaint?
After your complaint is filed, BOLI will mail you a packet of several documents. One of those documents will be a notice confirming that your complaint has been filed. Enclosed with that notice will be a copy of your “perfected” complaint.
The notice will also tell you the name of the investigator assigned to your complaint. Oregon’s regulations authorize BOLI to “investigate the allegations contained in the complaint to determine objectively whether there is substantial evidence of unlawful discrimination.” OAR 839-003-0065(2). The regulations leave the method of investigating your complaint largely up to BOLI’s discretion, but the BOLI investigator is specifically authorized to interview the complainant, the employer’s representatives, and any other witnesses BOLI believes may have relevant information.
The investigator may also conduct “fact-finding conferences” with you and your employer, where the BOLI investigator asks each side about the allegations in the complaint. OAR 839-003-0060. The purposes of this meeting is to narrow the disputed issues for investigation, and, if possible, attempt to resolve the complaint informally. BOLI does not conduct these fact-finding conferences very often. Investigators most often just proceed with their investigations.
You can expect the BOLI investigator to seek documentary evidence during the investigation. In fact, the packet you receive from BOLI after filing your complaint will likely also include a “Request for Information” seeking any supporting documents you may have. You must respond to this request within 23 days, unless the investigator grants you an extension. To respond to the Request for Information, you should be prepared to provide the following:
- Copies of any documentary evidence in your possession relevant to the allegations in your complaint. This may include, but is not limited to, medical records, personnel records, handwritten notes, e-mails, text messages, and voicemails.
- A list of witnesses who are able to offer relevant first-hand information in support of your allegations. You should include the last known contact information of the witnesses to assist BOLI with contacting your witnesses. You should also provide a short description of what information you believe each witness can provide and why you believe that information is important to your complaint.
- A list of other people who experienced similar mistreatment. BOLI wants this information to determine whether your employer has engaged in a pattern or practice of discriminatory conduct that might support your case.
- A list of other people who were treated differently than you. If your complaint involves allegations of “disparate treatment” – being treated differently than others – you will want to provide BOLI with examples of other employees who received different treatment under similar circumstances. BOLI will look to see if there are any discriminatory patterns in your employer’s different treatment of different employees. For example, if you are a black employee who was fired under your employer’s attendance policy for not calling in before you missed a shift, but other white employees missed shifts without calling in and were not fired, you will want to identify those white employees to show racially discriminatory treatment.
- A list of other documents or other evidence that might be in the possession of your employer or third-parties, and a description of why you believe it is relevant to your case. In most employment cases, employer’s hold most of the documentary evidence that can be used to support your case. BOLI can request these records from your employer, and can even subpoena your employer for its records, but BOLI needs to know what to request. You are the best source of information about your employer’s records. Give serious thought to what records might be out there that could help your case and provide as much detail about those records as you can. This will assist BOLI in requesting them from your employer or other third-parties.
Another document to be on the lookout for when you receive the initial BOLI packet is a “Notice of Scheduled Interview.” This notice will tell you the date and time that your interview with the investigator is scheduled, typically about 30 days after your complaint is filed. These interviews are usually conducted over the phone. If you need to reschedule your interview, you should contact the investigator as soon as possible. The letter will give you the investigator’s contact information. If you miss your interview without communicating with the investigator, BOLI might close its investigation and dismiss your complaint. OAR 839-003-0050 (“If the aggrieved person . . . fails to cooperate with the division, the division may dismiss the complaint.”).
Around the same time that BOLI sent you a packet of documents, it will also sent a similar packet to your employer. Your employer’s packet included a copy of your complaint and a request for your employer to respond to each of your allegations and provide any documents supporting the employer’s position. The employer’s response to your complaint is commonly referred to as the “Position Statement.” Your employer is typically required to provide its Position Statement within 14-21 days, unless the investigator grants an extension (which they frequently do).
The investigator will usually have your employer’s Position Statement by the time of your interview, so you will likely be asked questions about some of the things your employer said in its Position Statement. This can sometimes be difficult, because your employer might make accusations against you for the first time in their Position Statements that you haven’t heard of before. It is common to encounter “new allegations” from employers during the BOLI proceedings, particularly when the reasons the employer initially gave you turn out to be flimsy. Your employer may realize that the reasons it gave you won’t hold up to BOLI’s scrutiny, so it might try to “pile on” anything else it can come up with to justify its actions.
Although hearing your employer make negative accusations towards you for the first time during the BOLI interview can be unpleasant and frustrating, it can also be a gift if you play it right. When an employer shifts, changes, or expands its reasons for taking action against an employee, the BOLI investigator can infer that the employer is being “shifty” to try to cover up an illegal employment practice.
If you hear a new allegation, take a moment to gather your thoughts before you try to respond. Before attempting to address the allegation, tell the investigator that this is the first time you are hearing about your employer’s allegation, and that your employer never mentioned anything about the issue to you before. Tell the investigator as precisely as you can what your employer previously told you about the reasons for your termination, demotion, etc.. Point out that the new allegation was never brought up in those discussions. This will make the point that your employer is just “piling on,” while also giving you some extra time to decide how to respond to the new allegation.
If you can’t provide a response to the new allegation, do not attempt to. You might end up providing information that turns out to be false or speculative, neither of which will help your cause. We don’t always do our best thinking when we are on the “hot seat,” so it is okay to tell the investigator that you will need some time to reflect on the new allegation. Ask the investigator if you can respond after having some time to think about it. Most investigators will consider this a reasonable request.
After your interview with the BOLI investigator, you have the right to request a copy of the investigator’s report from your interview. You should strongly consider doing this. Investigators don’t always get every detail right, and in these cases, details are very important. Even slight mistakes can have a major impact on the outcome of your case. Therefore, you should let the investigator know that you would like a copy of the interview summary report once it is prepared. After you receive the report, you should review it carefully for accuracy. You are allowed to submit additional comments about the interview. OAR 839-003-0065(7). If you see any mistakes or inaccuracies in the investigator’s report, you should take the opportunity to submit additional comments to clarify or correct the investigator’s report.
After your interview, the BOLI investigator will determine whether to continue the investigation or administratively close your case. BOLI closes cases after the complainant’s interview more often than you might expect, especially when the complainant does not have an attorney. While BOLI’s purpose is to enforce Oregon’s employment laws, you should understand that BOLI does not have unlimited resources. Oregon has a lot of employment laws, and BOLI receives thousands of employee complaints each year. As such, investigators have heavy caseloads and must decide which cases to devote their time and energy to. They generally select the cases where they believe they have the best chance of proving a violation. If you do not provide enough supporting information or evidence to convince the investigator there is substantial likelihood of a violation, the investigator could very well conclude that further investigation would be a waste of resources and close your complaint immediately. OAR 839-003-0050(8) (“The division may elect to administratively dismiss a complaint without investigation.”).
If you do not want to continue with the BOLI investigation for any reason, you are allowed to voluntarily withdraw your complaint at any time. OAR 839-003-0045. All you need to do is submit a written request to the BOLI investigator.
How long does a BOLI investigation take?
If the BOLI investigator decides to close the investigation after your interview, your case will likely be over in 2-3 months.
If the investigator decides to continue investigating, the BOLI complaint process will generally last 6-12 months.
BOLI generally must conclude its investigation within 12 months because it is required to issue a “90-day notice” within one year of filing your complaint. ORS 659A.880(2); OAR 839-003-0020(4). The “90-day notice” is discussed further below.
Will BOLI try to settle my case during the investigation?
BOLI encourages the parties to resolve the complaints by mutual agreement, and BOLI will facilitate settlement discussions at any time during the investigation if the parties so desire. OAR 839-003-0055(1).
However, settlement is a voluntary process, and it takes two to tango. Neither party is required to settle the case or engage in settlement discussions. BOLI will not typically try to facilitate a settlement unless both parties have expressed interest in resolving the case by agreement.
Any settlement discussions usually begin by the employer indicating an interest in settlement. BOLI’s initial packet to the employer advises the employer that “[t]his matter may be resolved at any time through a pre-determination ‘no fault’ settlement agreement.” After receiving this letter, sometimes employers will reach out to the investigator for assistance in facilitating a settlement.
The investigator will then reach out to you to find out if you are willing to discuss settlement. If the employer made a settlement offer, the investigator will relay that offer to you and ask for a response. If no offer was made, the investigator may ask you to make a settlement offer.
Whether you are responding to your employer’s offer or making the first offer yourself, you should be aware that your employer is not likely to accept the first proposal you make. There will typically be a few rounds of negotiations before it becomes clear whether a settlement can be reached. Settlements are usually found somewhere in the middle of where the parties began their negotiations, so you should take that into consideration when formulating your initial settlement proposal.
If BOLI is able to facilitate a settlement, you will likely be asked to sign a formal settlement agreement and release. You should be aware that most settlement agreements will require you to release all of your legal claims against your employer, even claims that were not filed or investigated by BOLI. Settlement agreements may also impose contractual obligations upon you.
Some settlement provisions to be aware of are “confidentiality” and “non-disparagement” provisions. These provisions may require you to keep the terms of your settlement strictly confidential and refrain from saying anything negative about your employer. Sometimes settlement agreements can impose stiff penalties for any violations of these provisions. If your complaint involves allegations of discrimination, harassment, or retaliation, these provisions are not likely enforceable unless you specifically requested them. ORS 659A.370(1)-(2).
What happens after BOLI’s investigation of my complaint?
Once BOLI has concluded its investigation, it is required to either issue a “Substantial Evidence Determination” or dismiss the complaint. 839-003-0065(10). Either way, BOLI will send you a copy of its written decision by mail.
If BOLI dismisses your case, BOLI is required to send you a “90-day notice” in writing. OAR 839-003-0020(4). The 90-day notice is a letter informing you of your right to file a lawsuit within 90 days of the date the notice was mailed to you.
Once BOLI issues the 90-day notice, you must file your lawsuit within the 90 days or you will lose your right to do so. ORS 659A.880(3).
Substantial Evidence Determination
If BOLI’s investigation results in “[p]roof that a reasonable person would accept as sufficient to support the allegations in the complaint,” BOLI will issue a Substantial Evidence Determination. OAR 839-003-0005(15)(a). BOLI will mail a copy of the determination to both you and your employer. ORS 659A.835(4); OAR 839-003-0065(10).
You should be aware that even if BOLI makes a Substantial Evidence Determination, that does not mean you have won your case. It merely means you have won the right to continue with the BOLI process.
You should also be aware that BOLI does not make Substantial Evidence Determinations very often. In fact, a study of BOLI complaints from 2016-2019 reveals that BOLI only issued Substantial Evidence Determinations 2.8% of all cases filed.
As mentioned above, BOLI is a busy state agency with limited manpower and finite resources. These constraints force BOLI into performing a “triage” of sorts on the cases it handles. BOLI will focus its time and resources on the cases it believes are the most serious violations of law. This means not every case will get the attention it deserves.
If you are fortunate enough to have BOLI make a Substantial Evidence Determination in your case, BOLI will either try to settle your case or take your case to a “contested hearing.”
If BOLI elects to try to settle your case, your case will be assigned to a BOLI representative who will attempt to facilitate a settlement between you and your employer. OAR 839-003-0065(12). BOLI often assigns the same person who served as investigator to also serve as the settlement representative because the investigator is already familiar with your case. In any event, the settlement representative may hold a meeting with you and your employer to try to “mediate” the dispute. Most often, however, the representative will facilitate settlement negotiations over the phone.
If settlement efforts fail to resolve the dispute, BOLI can still elect to dismiss your case or move forward with a “contested hearing.” OAR 839-003-0070(3).
Depending on whether your complaint was investigated by the Civil Rights Division or the Wage & Hour Division, a contested case will begin when BOLI issues notice of an “Order of Determination” or “Formal Charges.” These notices are often referred to as the “charging document” in the contested case.
After BOLI issues the charging document, your employer will file a response to the charging document, called an “Answer,” and request a hearing.
A hearing will then be scheduled before an Administrative Law Judge (“ALJ”). The hearing is similar to a trial, where both parties are allowed to present testimony and other evidence to the ALJ and make arguments about who should win. But the hearing does not happen in a courtroom before a jury. The ALJ will be the decision-maker in your case, and the hearing will occur in a hearing room that will look much like a conference room or classroom.
Your employer will most likely have a lawyer at the contested hearing. BOLI will allow your attorney to be present as well, but you are not required to have one. At this point in the process, BOLI steps into a “prosecutor-like” role and will take the lead on presenting your case to the ALJ.
The hearing can last anywhere from a few hours to several days, depending on the complexity of the dispute. The ALJ will then issue a proposed decision for BOLI’s Commissioner to adopt. Your employer may file written objections to the ALJ’s decision for the Commissioner to consider. The Commissioner can adopt or reject the ALJ’s decision, but in most cases the ALJ’s decision is adopted.
If the Commissioner adopts the ALJ’s decision, the Commissioner will issue a “Final Order.” BOLI’s Final Order may award you a number of remedies, including the following
- Employment to the position that you were rejected
- Reinstatement to you were fired from
- Lost wages or other benefits
- Out-of-pocket expenses attributable to your employer’s unlawful conduct
- Compensation for emotional distress and impaired personal dignity
- Interest on the amounts your employer owes to you
OAR 839-003-0090(2). The Commissioner may also order your employer to take additional actions to ensure no further unlawful conduct occurs. For example, the Commissioner could require your employer to provide training to its employees on the issues raised by your complaint, prohibit your employer from further unlawful behavior towards you or others, or require your employer to provide periodic reports to show that it has complied with BOLI’s directives.
Your employer must either comply with the Commissioner’s Final Order or appeal the order to the Oregon Court of Appeals.
Can I still file a lawsuit if I filed a BOLI complaint?
If BOLI dismisses your complaint, unfortunately you do not have the right to appeal that decision to BOLI. OAR 839-003-0065(13). While a dismissal may be discouraging, it happens in over 95% of all cases filed with BOLI. You should not take BOLI’s dismissal of your complaint to mean that your case does not have merit. In fact, BOLI’s website warns employers 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.”
BOLI simply doesn’t have the resources to pursue every legitimate case, and plenty of employment law violations go unaddressed as a result. Every now and then, this unfortunate reality is confirmed in highly publicized cases where employees had their cases dismissed by BOLI, but went on to receive substantial relief through the litigation process. (E.g., West Linn police victim’s discrimination complaint dismissed).
Fortunately, the law allows you another avenue to pursue your legal claims if you do not have success with BOLI. You also have the right to file a lawsuit in court against your employer. Upon dismissal of your complaint, BOLI will send you a “90-day notice” letter informing you of your right to bring a lawsuit. ORS 659A.880(3). You must file your lawsuit within 90 days of the date the notice was mailed or you will lose your rights.
Importantly, you are not required to wait until BOLI dismisses your case to file suit. Unlike federal anti-discrimination laws, you are not required to file a complaint with BOLI and obtain a “right to sue” letter before filing suit. You can take your employer straight to court instead of filing with BOLI, in which case you will waive your right to file a BOLI complaint. OAR 839-003-0020(2)(b). Or you can file suit while your BOLI complaint is pending. However, if you file your lawsuit while BOLI’s investigation is pending, BOLI will dismiss your case once it receives notice that you filed a lawsuit. OAR 839-003-0020(3).
Can my employer punish me for filing a BOLI complaint?
Many employees facing unlawful discrimination, harassment, or retaliation in the workplace are still employed by the same employer they are currently having problems with. If you are one of these employees, you might be considering filing a complaint with BOLI because your employer won’t take your concerns seriously, or worse, has retaliated against you for raising your concerns.
All employees should know that the law protects them from retaliation for filing a complaint with BOLI. It is an unlawful practice “[f]or any person to discharge, expel or otherwise discrimination against any other person because that other person has opposed any unlawful practice, or because that other person has filed a complaint, testified or assisted in any proceeding under this chapter or attempted to do so.” ORS 659A.030(1)(f) (emphasis added). A BOLI complaint counts as “a proceeding under this chapter” for purposes of this statutory protection from retaliation.
Another statute requires you employer to preserve the “status quo” while your BOLI complaint is pending: “[a] respondent named in a complaint [filed with BOLI] may not . . . take any action that deprives the person filing the complaint of any services, real property, employment or employment opportunities sought in the complaint during the period of time [while the complaint is pending].” ORS 659A.865.
While employees are clearly protected from retaliation for filing a BOLI complaint, that doesn’t mean it won’t happen to you. If your employer punishes you for filing a BOLI complaint, you should file another BOLI complaint alleging illegal retaliation. BOLI will not let you amend your pending complaint to add claims based on new facts or events. OAR 839-003-0040(3).
Do I need an attorney to file an Oregon BOLI complaint?
You do not need an attorney to file a BOLI complaint. OAR 839-003-0010(2). As discussed above, BOLI has procedures to help you file a complaint on your own. However, if you are considering filing a BOLI complaint, you may want to at least consult with an attorney before doing so.
Having an experienced employment attorney to guide you through the BOLI process can take some of the stress and anxiety out of the situation. Your attorney will also help you draft the BOLI complaint and give you advice about what to include and how to word your complaint to give it the best chance of success.
You will also benefit from having an attorney in any settlement negotiations. An attorney can help you evaluate the fair value of your claim. Your employer is also more likely to take your case seriously if you have an attorney, which is often reflected in the employer’s settlement offers.
Your attorney will also help you prepare for your BOLI interview and will be present with you during the interview to make sure things go smoothly. An attorney knows what information investigators are looking for, so getting a preview of what you are likely to be asked can make a dramatic impact on your performance in the interview.
Attorneys can also facilitate BOLI’s investigation by conducting their own investigations. You should not rely on BOLI investigators to obtain all of the evidence you will need to win your case. Lawyers have resources to locate witnesses and documents that BOLI investigators do not necessarily have. Attorneys are also generally more effective at interviewing witnesses.
BOLI investigators are used to working with attorneys, and some investigators actually prefer to. Most employment attorneys who represent employees are willing to take legitimate cases on a “contingent fee” basis, meaning that you don’t have to pay attorneys’ fees unless your attorney obtains a monetary recovery for you. The fee is then typically calculated as a percentage of the recovery.
If you are thinking about filing a BOLI complaint, or need help with one that you already filed, please don’t hesitate to call me or book an appointment online. I regularly give free consultations to employees who need advice on how to proceed with the BOLI complaint process. Even if I can’t help with your case, I hope I can at least answer your questions and point you in the right direction.
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Kevin A. Jones offers a free, no-obligation consultation to any person facing a legal problem. During your call, Kevin will review your situation, answer your questions, and inform you of your legal rights.