19 Del. Admin. Code § 1311-6.0

Current through Reigster Vol. 28, No. 6, December 1, 2024

Section 1311-6.0 - Investigation

6.1 Timing of investigations.

6.1.1 The administrator shall promptly initiate an investigation into stated allegations of discrimination when:

6.1.1.1 The administrator refers a charge for investigation in accordance with 19 Del.C. § 712 (c)(2)(c); or

6.1.1.2 The mediation director refers a case to the investigation unit after unsuccessful mediation.

6.1.2 The department shall complete its investigation as promptly as possible.

6.2 Investigatory procedures.

6.2.1 All investigatory powers granted by 19 Del.C. §§ 107- 108 shall be available to the department. In its discretion, the department may conduct investigations using, among other things, written requests for information, fact-finding conferences, subpoenas, on-site visits, interviews, and depositions as provided in these regulations.

6.2.2 In connection with an investigation, the department may require the submission of information relating to:

6.2.2.1 The race, marital status, genetic information, color, age, religion, sex, national origin or disability of employees;

6.2.2.2 The employment records of employees;

6.2.2.3 The procedures for advertising or notifying the public of the availability of jobs;

6.2.2.4 The procedures for hiring or selecting employees;

6.2.2.5 The testing, seniority, promotion and discharge procedures; and

6.2.2.6 Such other information as the department determines to be reasonably necessary to carry out the provisions of the Discrimination in Employment Act or Handicapped Persons Employment Protections Act.

6.3 Requests for Information.

6.3.1 The department may serve requests for information to assist the department in its investigation. Unless otherwise specified in a request for information, the response shall be due to the department within 14 days following service.

6.4 On-Site Visits.

6.4.1 The department may conduct on-site visits to assist the investigatory process for the purpose of gathering evidence, interviewing witnesses, observing a respondent's facilities, and reviewing documents.

6.4.2 The department shall provide the respondent with written notice of the on-site visit at least 14 days prior to the visit. The notice shall specify the date and time of the visit.

6.4.3 The respondent shall grant access to its premises, documents, and employees during a scheduled on site visit.

6.5 Subpoenas.

6.5.1 The administrator may issue a subpoena as he deems necessary to assist the investigatory process. The administrator shall issue a subpoena in the name of the department, and the subpoena shall direct the person designated to personally appear and bring any books, records, documents and any other evidence that relates to any charge under investigation, or, in lieu of personal appearance, to produce any books, records, documents and any other evidence which relates to any charge under investigation.

6.5.2 A subpoena shall state the time and place where the person designated is directed to appear.

6.5.3 A subpoena shall be served either by personal service by any person 18 or more years of age by delivery of a copy thereof to the person named therein, by overnight delivery by commercial courier, or by registered or certified mail, return receipt requested.

6.6 Depositions.

6.6.1 The department may take depositions of witnesses under oath as part of any investigation when, in the discretion of the administrator, such depositions will aid the investigatory process.

6.7 Enforcement of subpoenas.

6.7.1 If any person fails to comply with a subpoena issued by the department, he shall be subject to the appropriate enforcement provisions of 19 Del.C. § 108.

6.8 Fact-finding conferences.

6.8.1 Fact-finding conferences, as part of a discrimination investigation, are subject to the following:

6.8.1.1 As part of its investigation and at the discretion of the administrator, the department may convene a fact-finding conference for the purpose of obtaining evidence, identifying the issues in dispute, ascertaining the positions of the parties and exploring the possibility of settlement. The fact-finding conference is not an adjudication of the merits of the charge.

6.8.1.2 The department shall provide the parties with written notice of the fact-finding conference at least 30 days prior to the conference. The notice shall specify the date, time and location of the conference and shall identify the individuals requested to attend on behalf of each party, and any documents that a party is requested to provide at the conference.

6.8.2 The conference shall be conducted as follows:

6.8.2.1 The department employee acting as fact-finder shall conduct and control the proceedings.

6.8.2.2 With prior notice to the department, the parties may request to bring witnesses to the conference in addition to those whose attendance may be specifically requested by the department. The fact-finder has discretion over which witnesses shall be heard and the order in which they are heard. The fact-finder may exclude any witness or other person from the conference, except that one representative of each party and counsel shall be permitted to remain throughout.

6.8.2.3 The department may request the parties to provide affidavits from witnesses who intend to appear at the fact-finding conference.

6.8.2.4 A party may be accompanied at a fact-finding conference by his or her attorney, and by a translator, if necessary.

6.8.2.5 An attorney for a party who has not previously entered his appearance shall do so at the outset of the conference.

6.8.2.6 Because the fact-finding conference is a means of investigation and not a hearing on the merits of a case, the parties shall not be entitled to cross-examine witnesses. All questioning shall be conducted by the fact-finder, unless in his discretion the fact-finder permits questions to be asked by other persons present at the conference.

6.8.2.7 During the conference, the fact-finder may allow a recess to permit the parties to discuss settlement.

6.8.3 Postponements of a fact-finding conference shall be subject to the following:

6.8.3.1 Except in extraordinary circumstances, requests for postponements must be made by notice to all parties at least 14 days prior to the conference.

6.8.3.2 Any opposition to a request for postponement must specifically state the basis for the opposition and must be received by the department at least seven days prior to the conference.

6.8.3.3 If a party or witness fails to appear at a scheduled fact-finding conference, the department may proceed with the conference without the party or witness.

6.8.4 If the respondent or the charging party refuses or fails to attend a scheduled fact-finding conference, the department may in its discretion schedule an alternate conference date. The department may subpoena any party or witness who failed to attend the initially scheduled fact-finding conference. The department may also subpoena any documents that either party was asked to bring, but failed to bring, to the fact-finding conference.

19 Del. Admin. Code § 1311-6.0