138 Neb. Admin. Code, ch. 2, § 003

Current through September 17, 2024

Section 138-2-003 - Reasonable Cause Findings

2.003.01 Conciliation

Upon a finding of reasonable cause, the Commission shall transmit the letter of determination and a proposed conciliation agreement. The letter of determination shall advise the parties that the Act requires the Commission to complete its conciliation activities within thirty (30) days of the reasonable cause finding, unless waived by the parties. The letter of determination shall also state that if the parties fail to settle the case within thirty (30) days, the case may be forwarded to the Commissioners for the purpose of ordering a public hearing on the matter. The Respondent shall notify the Conciliator of its interest in pursuing conciliation within ten (10) days of receipt of the conciliation agreement.

Within ten (10) days of receipt of a reasonable cause determination and proposed conciliation agreement, the Respondent may file a motion requesting reconsideration of the reasonable cause determination in the event there are recent court decisions or case law which disposes of the relevant issue(s). Reconsideration will not be granted for requests based on differences in interpretation of the facts or the law or a general disagreement with the basis for the reasonable cause determination.

If, after a finding of reasonable cause, and as a result of conference, conciliation, mediation or arbitration, the Conciliator determines that the effects of the discriminatory practice complained of will be remedied and eliminated by appropriate remedial action to which the parties agree, the terms of such remedial action shall be reduced to a written agreement and shall be signed by the Respondent, the Complainant, the Conciliator, the Executive Director and submitted to the Commission for their approval. Such written agreement shall be considered binding on all parties.

If conciliation is unsuccessful, the Conciliator shall notify the Complainant in writing of the options to request a public hearing or pursue the matter in either state or federal district court. The Complainant shall notify the Conciliator in writing within ten (10) days of his/her interest.

The Commission may require any party to submit to the Commission such information as it deems necessary to show the manner of compliance with the terms of any conciliation or settlement agreement to which the parties and the Commission have agreed. In the event of a breach of the agreement, the Commission shall have the authority to seek enforcement through the district court.

If, after a finding of reasonable cause, the Conciliator is unable to eliminate the alleged unlawful discriminatory practice by conference, conciliation, persuasion, mediation or arbitration, the Conciliator shall file a finding of such facts, in writing, with the Executive Director of the Commission, who will report such facts to the Commission. Upon the filing by the Conciliator of a finding of failure to eliminate the alleged unlawful discriminatory practice, the Commission shall examine that recommendation for disposition and shall then determine what disposition shall be made of the complaint. If the Commission shall determine that such complaint should be set for public hearing, the Executive Director shall appoint a hearing officer and cause a notice of public hearing to be served upon the parties as hereinafter provided. If the Commission determines that such complaint should not be set for public hearings, it shall order the same dismissed, and the parties shall be notified by mail of such determination.

Either party may request a conciliation conference to be held by the Commission. Such request shall be made within ten (10) days after the party received the letter of determination from the Commission. The Respondent and Complainant shall appear at the conciliation conference either in person or by an attorney, or both. The place of the conference designated by the Commission shall be at a place reasonably convenient for the parties. In the event of failure or refusal of the Respondent to appear or participate in the conciliation conference, the Commission may issue a written complaint and order a public hearing. The conciliation conference can be accomplished by telephonic means.

2.003.02 Non-disclosure

The members of the Commission and its staff shall not make public what has occurred in any conciliation conference without the written consent of both parties. No stenographic report or recording shall be taken of the proceedings of any conciliation conference. Nothing said or done during and as a part of such endeavors shall be used as evidence in a subsequent proceeding.

2.003.03 Settlement and Order

2.003.03ASettlement Terms Approved by the Commission. If a settlement is effected in a conciliation conference, the terms of which are approved by the Executive Director, the Commission shall have the written terms of settlement and adjustment prepared and signed by the parties; and the Commission shall therefore enter upon all parties an Order in accord with the executed written terms of settlement and adjustment. Any such Order shall specify the right of the Commission and adjustment. Any such Order shall specify the right of the Commission to investigate and determine, at reasonable times, whether the terms of settlement and adjustment and the Order entered pursuant thereto have been or are being complied with. If the Executive Director determines that the Respondent has violated or is violating the terms of settlement and adjustment and the Order entered pursuant thereto, the Commission may issue a written complaint, based on the original charge of discrimination and order a public hearing thereon.

2.003.03BDismissal. The Commission may, without the consent of the Complainant, dismiss the charge, if, in its opinion, the matter brought forth in the conciliation conference establishes that the Respondent has eliminated the effects of the alleged unlawful employment practice or practices with respect to the Complainant or if the Respondent has offered in good faith to eliminate the effects of the charged employment practice with respect to the Complainant in such manner as to effectuate the purposes of the Act, and Complainant has refused to accept such offer.

2.003.03CSettlement Terms Not Approved by the Commission. If the terms of settlement and adjustment agreed to by the parties are not approved by the Executive Director, the Commission need not enter upon the parties any Order in accord with said terms of settlement and adjustment, and may close the case as having been settled on terms not approved by the Commission; and in such event, the Commission need not issue a complaint and order a public hearing in the event of an alleged violation of the terms of settlement and adjustment.

138 Neb. Admin. Code, ch. 2, § 003