Early Resolution of EEO Complaints (EREC) Program

U.S. Department of Labor
Directorate of Civil Rights DCR Policy Memorandum 6 (Revision 1)

SUBJECT: Early Resolution of EEO Complaints (EREC) Program

EFFECTIVE DATE: October 1, 1995

SIGNED: Annabelle T. Lockhart
Director, Directorate of Civil Rights

(Click here to e-mail Ms. Lockhart with questions about this program.)

DISTRIBUTION: DOL Agency Heads, OASAM Executive Staff, OASAM Regional Administrators, Civil Rights Officers, Agency EEO Coordinators, EEO Counselors

1. Purpose. This memorandum describes the Early Resolution of Equal Employment Opportunity Complaints (EREC) Program established as part of the informal complaint process within the Directorate of Civil Rights, U.S. Department of Labor (DCR). It prescribes policies and procedures and defines responsibilities of those involved with the program. Revision 1 incorporates changes suggested by the pilot program, reflects changes in titles and organization names that have recently become effective, and inserts a section describing procedures for implementing the program in the regions.

2. Applicability. This policy memorandum applies to all DOL agencies and programs located in the national office and the regional offices and to all employees or applicants for employment with those entities.

3. References
a. 29 CFR 1614
b. Administrative Dispute Resolution Act, P.L.101–552

4. Policy. It is the policy of the U.S. Department of Labor to provide all employees or applicants for employment with DOL the opportunity to use the alternative dispute resolution (ADR) process described in this policy memorandum to resolve allegations of discrimination at the informal stage of the complaint process.

5. Objectives. The use of alternative dispute resolution:
a. Allows parties to resolve disputes themselves,
b. Encourages open communication in a nonthreatening environment,
c. Allows an impartial third party to assist in identifying the underlying causes and issues which form the bases of the dispute and remedies for resolution,
d. Avoids protracted litigation, and
e. Improves working relationships.

6.Alternative Dispute Resolution.

a. DCR has established a system—the Early Resolution of EEO Complaints Program, or EREC—to resolve discrimination-based disputes prior to the filing of a formal EEO complaint. Employee participation in EREC will be voluntary. If an aggrieved individual elects EREC, management participation is mandatory.

b. The alternative dispute resolution method which will be used in the EREC will be mediation as described in this memorandum. The mediator will be fully trained and may be from within DOL or from a federal agency in the same geographic area. A non-DOL mediator will be used to resolve disputes involving the Office of the Inspector General. In unusual situations, a mediator from the private sector may be utilized.

c. An EREC team, consisting of the Chief of DCR's Office of Mediation, Counseling, and Evaluation (OMCE), the Coordinator of Mediation and Counseling (COMC), the assigned EEO counselor or civil rights officer, an EO assistant, and the appropriate agency EEO coordinator will be formed to work together in EREC. The EEO coordinator will be the EEO coordinator for the agency in which the dispute arose.

7. Organization, Responsibilities, and Functions. Participants and their roles are described herein.

a. Directorate of Civil Rights

I. Chief, Office of Mediation, Counseling, and Evaluation
A. Administers the EREC,
B. Serves as chair of the EREC team,
C. Selects mediator on a rotating basis,
D. Acts as liaison with mediator, and
E. Monitors, evalutes, and continues to improve the EREC program, generating periodic reports and evaluations as appropriate.

II. Coordinator of Mediation and Counseling (formerly Coordinator of Counselors)
A. Ensures that EREC training is provided,
B. Assigns EEO counselors for inquiry,
C. Provides oversight and technical supervision of EEO counselors, and
D. Reports monthly to the Director, DCR, on the status of all informal cases, including EREC elections.

III. EO assistant
A. Schedules EREC team meetings and arranges for national office mediation sessions, notifying all interested parties of date and time for mediation,
B. Coordinates preparation of any national office settlement agreement with mediator,
C. Coordinates participant evaluations and compiles cost and time data, and
D. Completes and maintains each EREC case file, including a full set of forms needed to support process evaluation.

IV. Collateral-duty EEO counselor
A. Provides complainant rights under applicable regulation or statute, including information on EREC,
B. Notifies COMC if complainant elects EREC, and
C. Conducts counseling and provides Notice of Final Interview letter if complainant does not elect EREC.

V. Mediator/counselor (national office)
A.Conducts precomplaint counseling inquiry and prepares Counselor's Summary Report and submits it to COMC,
B. Participates in EREC team, and
C. Completes/compiles counseling cost data on DCR Form 4E for use by the Chief, OMCE, in periodic EREC evaluations.

VI. Civil rights officer (regional offices)
A. Forwards DCR Form 2E (DCR 2E) to COMC to provide advance notice of an EREC election,
B. Determines whether factfinding will be conducted by collateral-duty counselor, may conduct factfinding and prepare Counselor's Summary Report, and forwards CSR to COMC,
C. Participates in EREC team via teleconference,
D. Makes all arrangements for mediation,
E. Mediates or comediates EREC cases outside his or her region.

b. Agency

I. Agency head
A. Champions the EREC process,
B. Appoints settlement official with clear authority to resolve EEO disputes, and
C. Provides necessary resources to support EREC.

II. Designated agency settlement official (SO)
A. Participates in good faith in mediation and
B. Authorizes and signs settlement agreement.

III. Agency EEO coordinator
A. Provides pertinent information to EREC team, settlement official, and mediator,
B. Serves as a member of EREC team and participates in team meetings,
C. Provides name of settlement official to COMC for mediation,
D. Reviews settlement proposals on behalf of the agency,
E. Notifies settlement official and any other agency participants of dates and times of mediation and ensures their presence at mediation,
F. Provides an estimate of the dollar value of any settlement for process evaluation, and
G. Monitors settlement agreements to ensure agency commitments are met.

c. Office of the Solicitor
A. Provides legal advice to EREC team and mediator and
B. Reviews settlement proposals for legal sufficiency.

d. Mediator
A. Reviews background materials including informal complaint,
B. Determines participants to the mediation and notifies the Chief, OMCE,
C. Describes mediation process to participants,
D. Conducts mediation sessions, and
E. If resolution is achieved, briefs Chief, OMCE, on proposed resolution, prepares settlement agreement, coordinates signing of agreement with participating parties, and distributes courtesy copies of signed agreement to participants and to C,OMCE, or
F. If no resolution is achieved, notifies Chief, OMCE, and terminates mediation process by completing Counselor's Summary Report (items 9 and 10) and issuing the Notice of Final Interview letter.
G. Completes the mediator evaluation, distributes evaluation forms to other mediation participants, and collects and forwards all evaluations to COMC.

e. Complainant
A. Participates in good faith in mediation and
B. Cooperates in settlement efforts, signs settlement agreement, and upholds his or her part of the agreement.

8. National Office Procedures for Early Resolution of EEO Complaints (EREC)

(See Table 1.)

a. Complainant first meets with COMC and describes the allegation. The COMC provides information on the EEO complaint process and the EREC Program. The COMC will have 3 calendar days to assign an EEO counselor.

b. When the complainant presents the allegation to the EEO counselor, the informal complaint counseling inquiry begins. c. The EEO counselor will initiate the informal complaint inquiry in accordance with 29 CFR 1614 , providing the following information to the complainant:
I. letter covering rights of complainant
II. waiver of anonymity
III.right to representation
IV. EREC information pamphlet
V. offer of EREC in lieu of counseling
VI. Informal Complaint of Discrimination form (DCR 1), with DCR 3E attached

d. If at the initial counseling session, the complainant elects mediation, the counselor will obtain from the complainant written approval to extend the counseling period for 60 calendar days (DCR 2E) and forward it to the COMC along with the completed Informal Complaint of Discrimination (DCR 1). The COMC will, by obtaining the EEO Coordinator signature on the DCR 2E , notify the complainant's agency that the complainant has elected mediation.

A counselor from DCR will be assigned and will immediately commence a limited factfinding inquiry. The counselor will prepare a preliminary Counselor's Summary Report (items 1–8) and counseling and factfinding cost data (DCR Form 4E, back, part A) to be submitted to the COMC within 7 working days.

[If at the initial counseling session, the complainant does not elect mediation, the complaint process will continue. While conducting the factfinding inquiry and preparing the summary report, the EEO counselor may elect to work on site in DCR, with approval of his or her supervisor. The COMC will (I) notify the counselor's supervisor that the counselor has been assigned, (II) let the supervisor know whether the counselor wishes to work in DCR and obtain approval, and (III) notify the counselor whether or not approval has been granted. Since the onsite option is intended to expedite the counseling process, the counselor will be on site no longer than 7 working days.]

e. The EO assistant, on behalf of the COMC, will provide copies of the Counselor's Summary Report (CSR) and DCR 1 (with DCR 3E attached) to the EREC team.

(The COMC will also ensure that the complainant receives a copy of the Counselor's Summary Report at this time.) On behalf of the Chief, OCME, the EO assistant will arrange for the EREC team meeting within 1 week of receiving the Counselor's Summary Report.

f. The EREC team will meet to discuss any additional information that may be needed prior to mediation and possible resolution options. The EEO coordinator will provide the name of the designated settlement official at this time and begin to gather any agency information that may be useful to the mediator. This information will be submitted to the Chief, OMCE to be forwarded to the mediator.

g. The Chief, OMCE will select a mediator from the approved list of mediators for the pilot program. A mediation date will be arranged as expeditiously as possible but no later than 30 calendar days from the date of selection of the mediator. The Chief, OMCE, will provide the mediator copies of the informal complaint (DCR 1and 3E), the preliminary Counselor's Summary Report, and any other information necessary to facilitate the mediation process.

h. The Chief, OMCE will also ensure that the complainant promptly receives a copy of the Counselor's Summary Report as well any information which the EEO coordinator is to share with the settlement official as a result of the EREC team meeting.

i. Except in unusual circumstances, the mediation process will not exceed 2 days. The mediation will be concluded when one of the following occurs:
I. The complainant withdraws the complaint in writing.
II. A settlement agreement is signed by the agency and the complainant.
III.The parties are unable to resolve the dispute.

j. If the complainant has previously filed a grievance on the matter, the settlement agreement must also be agreed to by an authorized union official. The Chief, OMCE, will coordinate this signing if the union official is not party to the mediation.

k. If resolution is not achieved, the mediator will, at the conclusion of the mediation process: (I) complete item 9 of the Counselor's Summary Report with any additional facts or circumstances relevant to the informal complaint and attempts at resolution; (II) issue the Notice of Final Interview letter and a copy of the Formal Complaint of Discrimination (DCR 4), complete item 10 of the Counselor's Summary Report, and sign and date it; and (III) complete the face of DCR 4E, Outcome of Mediation. The mediator will forward both the Counselor's Summary Report and DCR 4E to the COMC for further processing.

Note: To ensure the integrity of the mediation process, information which has been given in confidence by any participant in the mediation will not be included in the mediator's section (items 9 and 10) of the Counselor's Summary Report.

l. The Chief, OMCE, will ensure that:
I. All necessary settlement documents are appropriately coordinated and signed.
II. Notification is prepared which advises the agency head of the terms of the agreement for purpose of implementation and of the complainant's right to seek enforcement.
III.The complainant is advised of his/her right to seek enforcement of the settlement agreement.
VI. Any breach of a settlement agreement is addressed based on 29 CFR 1614.504.

V. If there is no resolution of the complaint, complaint processing continues in accordance with 29 CFR 1614 .

m. The EEO coordinator will follow up on any settlement agreement to ensure that actions are compleed in a timely manner and that any ongoing requirements of the agreement are monitored.

Table 1. Early Resolution of EEO Complaints Program Timetable

9. Regional Procedures for Early Resolution of EEO Complaints (EREC)

(See Table 1.)

a. An informal EEO complaint may be filed with either the civil rights officer or any collateral-duty EEO counselor in the region.

b. The civil rights officer or collateral-duty EEO counselor will initiate the informal complaint inquiry in accordance with 29 CFR 1614 , providing the following information to the complainant:
I. letter covering rights of complainant
II. waiver of anonymity
III.right to representation
IV. EREC information pamphlet
V. offer of EREC in lieu of counseling
VI. Informal Complaint of Discrimination form (DCR 1, with attachment DCR 3E)
The complainant will complete the DCR 1 and DCR 3E, Allegation Data, which clarifies the allegations for evaluation purposes.

c. The civil rights officer, or collateral-duty EEO counselor, will discuss both the counseling and the mediation procedures with the complainant. If the complainant elects mediation, the civil rights officer, or the collateral-duty EEO counselor, will
I. Have the complainant sign the Agreement to Extend Counseling (DCR 2E),
II. Inform the complainant that a limited factfinding inquiry will be conducted and that he or she will be notified when the mediation session is scheduled, and
III.Fax the DCR 1, DCR 2E, and DCR 3E immediately to the Coordinator of Mediation and Counseling (COMC), followed by hard copies.

Based upon the nature of the complaint, the civil rights officer will determine whether to conduct the limited factfinding or to have the collateral-duty EEO counselor conduct it. The civil rights officer will also consider the counselor's ability to commit to meeting the required time frames. The inquiry will include, but is not limited to, interviewing responding officials and witnesses and obtaining relevant documents (e.g., agency records, memoranda, and other correspondence). The inquiry will be completed within 7 working days. This time limit may be extended in an emergency situation for no more than 3 additional working days.

d. If the complainant does not elect mediation, the civil rights officer, or the collateral- duty EEO counselor, will
I. Inform the complainant that the complaint will be processed in accordance with 29 CFR 1614 complaint procedures and
II. Fax the DCR 1 (with attachment DCR 3E) immediately to the COMC.

Within 2 working days of completing the inquiry, the factfinder will complete and submit the Counselor's Summary Report (CSR), noting in item 8 ("Attempts at In- formal Resolution") that the complainant has elected to mediate his or her complaint. The factfinder will also estimate counseling costs, recording them on the back of DCR 4E, part A. He or she will not issue a Notice of Final Interview letter at this time.

If the collateral-duty EEO counselor conducts the inquiry and prepares the CSR, he or she will fax it (within 2 working days of completing the factfinding) to the civil rights officer, who will in turn fax it immediately to the COMC. The collateral-duty EEO counselor will follow the fax with a hard copy to both the civil rights officer and the COMC. If the civil rights officer conducts the factfinding, he or she will prepare the CSR and fax it directly to COMC within 2 working days of completing the factfinding, following the fax with a hard copy.

e. The Chief, Office of Mediation, Counseling, and Evaluation (OMCE) will (I) select the mediator who will mediate the complaint and (II) convene a teleconference of the EREC team, which includes the civil rights officer, the DCR Coordinator of Mediation and Counseling, the EO assistant (EOA), and the agency EEO coordinator. The mediator will be selected from a roster of qualified mediators maintained by OMCE, including the civil rights officers. In the case of an informal complaint brought by an employee of the Office of the Inspector General, the mediator selected will be a non- DOL employee.

f. The EOA, on behalf of the COMC, will be responsible for providing a copy of the informal complaint, Counselor's Summary Report, and other pertinent information:
I. to each EREC team member prior to the teleconference and
II. to the selected mediator(s) immediately following the teleconference.

The EOA will also be responsible for providing a copy of the Counselor's Summary Report to the complainant as soon as it is available.

g. The Chief, OMCE will be responsible for assuring that any information shared with the agency EEO coordinator (on behalf of the settlement official) and the mediator is also shared with the complainant immediately following the EREC team meeting/ teleconference.

h. The agency EEO coordinator will designate an agency settlement official (SO) from the list of agency SOs who have been authorized to make binding decisions on behalf of the agency. The EEO coordinator will provide the SO with copies of the informal complaint, the CSR, and any other pertinent information prior to the mediation.

i. The mediator will schedule the mediation to begin no later than 30 calendar days after he or she is assigned to the case. In most cases the mediation session will be held in the city of the complainant's employment. The EREC team will determine the mediation site, taking into consideration such factors as: avoiding a "chilling" effect on the complainant, travel costs to the agency, conditions ensuring privacy to the parties, and the recommendation of the civil rights officer.

The civil rights officer will notify all parties—complainant, mediator, and SO —of the date, time, and location for the mediation. The civil rights officer will also make all necessary logistical arrangements for the mediation session, including, as appropriate, space, access to telephones and fax, a laptop computer or clerical support, use of a copier, and so on.

j. The complainant's agency will bear any costs for travel, lodging, and miscellaneous expenses associated with participation in the mediation by the SO and the complainant. (Travel costs associated with the complainant's representative, if any, are governed by 29 CFR 1614.605 .) DCR will be responsible for mediator expenses.

k. The mediation process will not ordinarily exceed 2 days.

l. If the parties resolve the complaint through mediation, the mediator will prepare a settlement agreement that outlines all of the terms agreed to. The agreement will be signed by the complainant, the complainant's representative, if he or she has one, and the SO.

If the complainant has previously filed a grievance on the matter, the settlement agreement must also be agreed to by an authorized union official. The civil rights officer will coordinate this signing if the union official is not party to the mediation.

The mediator will provide courtesy copies of the signed settlement agreement to each party (and to the union official, if applicable) and to the Chief, OMCE, who will forward a copy to the civil rights officer.

The Director, DCR, will officially transmit a copy of the settlement agreement to the complainant, advising him or her of the right to seek enforcment, and to the agency head for purposes of implementation. The agency EEO coordinator will follow up with appropriate agency officials to ensure that all items in the agreement are fulfilled in a timely manner and will continue to monitor any ongoing items.

m. If resolution is not achieved, the mediator will, at the conclusion of the mediation process: (I) complete item 9 of the Counselor's Summary Report with any additional facts or circumstances relevant to the informal complaint and attempts at resolution; (II) issue the Notice of Final Interview letter and a copy of the Formal Complaint of Discrimination (DCR 4), complete item 10 of the Counselor's Summary Report and sign and date it; and (III) complete the face of DCR 4E, Outcome of Mediation. The mediator will forward both the completed Counselor's Summary Report and the DCR 4E to the COMC for further processing. The COMC will provide copies to the civil rights officer for the permanent complaint file. (If a formal complaint is filed, the COMC will request that the informal complaint file be forwarded to DCR's Office of Enforcement for processing of the formal complaint.)

Note: To ensure the integrity of the mediation process, information which has been given in confidence by any participant in the mediation will not be included in the mediator's section (items 9 and 10) of the Counselor's Summary Report.

n. The mediator will provide a copy of the appropriate evaluation form (DCR Form 6E or 7E) to each participant in the mediation. The mediator will complete DCR Form 8E. The parties and the mediator are requested to complete their evaluations before leaving the mediation site. The mediator will collect the completed evaluation forms and transmit them to the COMC.

10. Mediation.

a. A mediator is a neutral third party who assists the parties in reaching a mutually sat- isfactory resolution of a dispute. No person may serve as a mediator when that per- son was previously involved in any way in issues surrounding the informal complaint.

b. To the extent possible, DCR will use a co-mediation model, that is, a pair of mediators will conduct the mediation. This model provides development opportunities for mediators in training, mentoring opportunities for the experienced, and support and broadened perspective for both. Responsibilities ascribed to the mediator in this policy will reside with the senior of the two mediators selected for the case.

c. The mediator will proceed expeditiously to conduct the mediation. He or she will decide on the participants for mediation (which may include the complainant, witnesses, managers, and the settlement official) and notify the Chief, OMCE, who will notify the EEO coordinator to arrange for the presence of the participants. In the mediation session, the mediator will inform participants about the mediation process, including procedures and schedules. The mediator should conduct the mediation in 1–2 calendar days and will keep no written record or transcript of the process.

d. All parties, including the EREC team, will provide assistance to the mediator to enable the mediation to proceed. The mediator will determine what documents and persons are necessary for the mediation. The mediator manages the mediation sessions and may meet with the parties together or separately during this process.

e. The complainant may be represented during the mediation by a designated representative, selected by the complainant, at no cost to the Government (in accordance with 29 CFR 1614.605). However, persons should speak for themselves during the mediation sessions.

f. Mediation requires the voluntary participation of the complainant. The mediation may be terminated with no resolution at any time by the complainant.

g. Statements made during mediation are privileged and confidential. Further, no party will subpoena or request as a witness the mediator in any subsequent proceedings between the parties.

h. When resolution is achieved, the mediator will brief the Chief, OMCE, on the result of the mediation, including the terms of the proposed agreement, prepare the settlement agreement, and coordinate its signing. In regional cases, briefing of the Chief, OMCE, will be accomplished by telephone and/or telefax.

i. When resolution is not achieved, the mediator will immediately complete items 9 and 10 of the Counselor's Summary Report and submit it to the COMC. The mediator will also give the complainant the Notice of Final Interview letter and a formal complaint form, which must be filed within 15 calendar days with the Director, DCR or other appropriate official if the complainant elects to file a formal complaint.

11. Evaluation.

a. The complainant, at the time of filing the Informal Complaint of Discrimination (DCR 1), will complete the attachment form DCR 3E, Allegation Data (Appendix C).

b. At the conclusion of the factfinding, the counselor will complete Part A on the back of DCR 4E to capture counseling costs.

c. At the conclusion of mediation, the mediator will complete the front of DCR 4E, Outcome of Mediation (Appendix D), which captures resolutions and any allegations remaining unresolved during EREC mediation and which is signed by the parties.

Within 2 working days after mediation is completed, the EO assistant, working with the mediator, will compile cost data for the mediation from the participant evaluations and capture it in Part B on the back of DCR 4E. Also in that time, the EO assistant will obtain from the agency EEO coordinator a dollar estimate of the value of the settlement and record those costs in Part C on the back of DCR 4E.

d. DCR is responsible for evaluating EREC mediation. For this purpose, a summary following DCR Form 5E (Page 1 and Page 2), Summary of EREC Mediations (Appendix E), will be prepared quarterly by the EO assistant (from allegation and cost and time data recorded on DCR 3E and 4E) and submitted to the COMC.

e. DCR is also responsible for evaluating the effectiveness of EREC. At the conclusion of mediation, the EO assistant (or the mediator, in the case of a regional mediation) will provide a questionnaire to the agency settlement official (DCR 6E, Agency Experience with the Early Resolution Program, page 1 and page 2), one to the complainant (DCR 7E, Complainant Experience with the Early Resolution Program, page 1, page 2 and page 3), and one to the mediator (DCR 8E, Mediator Experience with the Early Resolution Program, page 1 and page 2). The question- naires will be completed immediately upon completion of the mediation process.

The EO assistant (or mediator) will transmit the completed evaluations to the Chief, OMCE, who will submit monthly reports to the Director, DCR (containing such information as the Director deems necessary), continually monitor the effectiveness of the EREC program, and prepare summary evaluation reports as appropriate.

In addition, when the settlement agreement has been implemented, the Chief, OMCE will send to the immediate supervisor of the complainant a copy of DCR Form 10E, Immediate Supervisor's Experience with the Early Resolution Program, which permits DCR to capture that person's viewpoint and feedback on the EREC process and its results.

Eight Appendices
Appendix A—DCR Form 1E, [reserved]
Appendix B—DCR Form 2E, Agreement to extend counseling/participate in mediation
Appendix C—DCR Form 3E, Allegation data
Appendix D—DCR Form 4E, Outcome of mediation, page 1 and page 2.
Appendix E—DCR Form 5E, Summary of EREC mediations, page 1 and page 2.
Appendix F—DCR Form 6E, Agency experience with the Early Resolution Program, page 1 and page 2.
Appendix G—DCR Form 7E, Complainant experience with the Early Resolution Program and Representative experience with the Early Resolution Program, page 1, page 2 and page 3.
Appendix H—DCR Form 8E, Mediator experience with the Early Resolution Program, page 1 and page 2

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