N.J. Admin. Code § 13:4-5.2

Current through Register Vol. 56, No. 21, November 4, 2024

Section 13:4-5.2 - Default procedure

(a) When the Director determines to initiate the default procedure due to failure of a respondent to file an answer, position statement, or response to a Document and Information request, the Division shall do so by serving the following notice and order:

"NOTICE is hereby given that a verified complaint has been served upon you charging you with a violation of the Law Against Discrimination (and/or Family Leave Act as is applicable). Pursuant to this Division's authority under N.J.S.A. 10:5-8(i), a verified complaint and/or request for information or documents (as is applicable) has/have been served upon you. The verified complaint and/or request for information or documents has/have not been answered and filed within the time as therein prescribed. Should you fail to fully answer and file the answer to verified complaint, position statement, and request for information or documents within 10 calendar days, a default shall be entered in this case. Said default shall constitute:

(a) an admission that the verified complaint and/or request for information or documents, if answered, would have established facts consistent with the allegations set forth in the Complaint;

(b) a waiver of your right to have the Division conduct further investigations, engage in conciliation efforts or hold a public hearing;

(c) a suppression of any and all defenses to the allegations raised in or arising out of the complaint and/or the investigation; and

(d) an entry of a finding against you.

THEREFORE it is on this ______ day of ___ , ____, ORDERED:

1. Respondent(s) shall file an Answer to the verified complaint, a Position Statement, and to requests for information or documents previously served.

2. Respondent(s) shall file said Answer, Position Statement, and/or responsive information or documents where required on or within the tenth business day following the date of this order."

(b) If, after the expiration of the time period set forth by the Director in any Notice and Order served pursuant to (a) above, the respondent has failed to file an answer to the verified complaint, position statement, and/or to fully answer and file the request for information or documents with the Director, the Director shall order the entry of a default on the docket of the Division. The entry of such default shall:

1. Constitute a waiver of the respondent's right to an investigation, conciliation efforts, or public hearing on the merits;

2. Result in the suppression of any and all defenses of the respondent; and

3. With respect to any request for information or documents, deem that the requested evidence establishes facts in accordance with the allegations set forth in the complaint or arising out of the investigation.

(c) Any order for entry of default must be supported by an affidavit of a field investigator or other Division employee authorized by the Director. The affidavit shall recite:

1. That a verified complaint was filed by the complainant alleging a timely violation of the Law Against Discrimination or Family Leave Act;

2. The date of service of the verified complaint and/or request for information or documents on respondent and the date of the service of any order requiring answers to the verified complaint and/or request for information or documents and extending the time in which to answer them;

3. That the respondent failed to file an answer to the verified complaint, position statement, and/or to respond to the request for information or documents within the time required by the Director's order as it may have been extended, or the respondent has made a motion to strike the request for information or documents and following denial thereafter by the Director has failed to answer within the time required by the Director's order; and

4. That the respondent has been given notice of the consequences of failure to answer the verified complaint, submit a position statement, and/or to respond to request for information or documents.

(d) Within 10 calendar days after entry of default, the Director shall serve notice of the entry of default and supporting affidavit upon the respondent. The notice shall inform the respondent that the case will be transmitted to the OAL for hearing on a default basis and that transmittal will occur 20 calendar days after service on the respondent of the notice of entry of default. The notice shall also inform the respondent of the opportunity provided by N.J.A.C. 13:4-5.3for petitioning the Director to vacate the entry of default.

(e) Twenty calendar days after the respondent is served with notice of the entry of default, the Director shall transmit the case to the OAL for the purpose of a hearing on the complainant's proofs of the allegation of discrimination on a default basis in accordance with N. J.A.C. 13:4-5.4. In lieu of transmittal to the OAL, the Director may elect to pursue an action in Superior Court pursuant to N.J.S.A. 10:5-13.

N.J. Admin. Code § 13:4-5.2

Amended by R.2011 d.073, effective 2/22/2011.
See: 42 N.J.R. 2571(a), 43 N.J.R. 436(a).
Section was "Default Procedure". In the introductory paragraph of (a), substituted "default procedure" for "Default Procedure"; in the introductory paragraph of the notice and order in (a), substituted "The" for "Said the"; rewrote (b); added new (c)1; deleted former (c)4; recodified former (c)1 through (c)3 as (c)2 through (c)4; in (c)3, deleted a comma following "extended" and inserted "and" at the end; and in (c)4, substituted a period for "; and" at the end.

Amended by 52 N.J.R. 2109(a), effective 12/7/2020