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Chapter 60Y-5 FAC (All-in-One)
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60Y-5.001 FAC | COMPLAINTS

(1) Who May File. A complaint may be filed by any person aggrieved by an unlawful employment practice. A complaint may also be filed by the Attorney General, a Commissioner, or the Commission. When a complaint is filed by a Commissioner, that Commissioner is the complainant, and shall not participate as a Commissioner in any subsequent proceeding upon that complaint.
(2) Time for Filing. A complaint may be filed at any time within 365 days of the occurrence of the alleged unlawful employment practice. If the alleged unlawful employment practice is of a continuing nature, the date of the occurrence may be any date subsequent to the commencement of the unlawful employment practice up to and including the date on which it shall have ceased.
(3) Place and Date of Filing. A complaint may be filed at the office of the Commission. The date of filing shall be the date of actual receipt of the complaint by the Clerk or other agent of the Commission. Any document received by the Clerk or other agent of the Commission after 5:00 p.m. (Eastern Time) shall be filed as of 8:00 a.m. on the next regular business day.
(4) Relation Back of Certain Complaints. A complaint which would not otherwise be timely may be filed if it:
(a) States that another complaint naming the same respondent is properly before the Commission and identifies that other complaint, and
(b) Alleges the same or additional facts which describe an unlawful employment practice related to or growing out of the subject matter of the other, identified complaint, and
(c) Would have been timely if filed at the time of, or other time subsequent to, the filing of the other, identified complaint. A complaint under this subsection may be filed by a new complainant and shall relate back to the date the other, identified complaint was first received.

(5) Form. The complaint must be in writing and shall be signed by the complainant. The complaint shall be verified.
(6) Contents.
(a) The complaint should contain the following information:
1. The name, address and telephone number of the person filing the complaint;
2. The name, address and telephone number of the respondent;
3. A clear and concise statement of the facts, including pertinent dates, constituting the unlawful employment practice;
4. If known, the approximate number of employees of a respondent employer;
5. If known, a statement disclosing whether proceedings involving the alleged unlawful employment practice have been commenced before a Federal, State or local agency charged with the enforcement of fair employment practice laws and, if so, the date of such commencement and the name of the agency.

(b) Notwithstanding the provision of paragraph (a) of this subsection, a complaint is sufficient if it is in writing, signed by the Complainant, verified, and is sufficiently precise to identify the parties and to describe generally the action or practice complained of.

(7) Amendments.
(a) A complaint may be reasonably and fairly amended within 60 days after filing and, thereafter, for good cause with the consent of the Executive Director.
(b) A complaint may be amended to cure technical defects, or omissions, including verification, or to clarify and amplify allegations made therein. Such amendments and amendments which describe an additional unlawful employment practice related to or growing out of the subject matter of the original complaint will relate back to the date the complaint was first received.
(c) An amendment adding or changing a respondent will relate back to the date the complaint was first received if, within the period provided by subsection (2), the new respondent (i) has received such notice of the filing of the complaint as is sufficient to avoid prejudice in a defense on the merits, and (ii) knew or should have known that, but for a mistake concerning identity of the proper respondent, the complaint would have been filed against the new respondent.

(8) Withdrawal. A complaint may be withdrawn by a complainant at any time; however, following the issuance of a Notice of Determination, withdrawal may be made only with the consent of the Executive Director.
(9) Notice to Respondent. When it is determined that a complaint is complete and has been timely filed. The Executive Director shall cause notice of the filing and a copy of the complaint to be served upon the respondent. Notice shall be served within 5 days of the date of filing. An amendment likewise shall be served upon the respondent.
(10) Maintenance of Records. Once a complaint has been served on a respondent, the respondent shall preserve all records and other evidence which may pertain to the complaint until the matter has been finally determined.
Specific Authority 760.06(12), 760.11(14) FS. Law Implemented 760.06, 760.10, 760.11(1) FS. History–New 11-2-78, Amended 10-4-82, Formerly 22T-9.01, 22T-9.001, Amended 1-28-99, 2-23-00, 2-5-04.

60Y-5.0011 FAC | ANSWER

(1) Respondent may file an answer to the complaint within 25 days of the date the complaint was filed with the commission. The answer shall be verified. The person filing the answer shall mail a copy to the complaining party.
(2) The answer may be reasonably and fairly amended at any time prior to the issuance of a determination pursuant to Rule 60Y-5.004, F.A.C.
Rulemaking Authority 760.06(12) FS. Law Implemented 760.11(1) FS. History–New 2-5-04, Amended 1-31-18.

60Y-5.002 FAC | AGREEMENTS OF REFERRAL OF COMPLAINTS

(1) The Executive Director is authorized to negotiate agreements of referral with other public agencies having authority and resources to investigate allegations of unlawful employment practices.
(2) The Executive Director shall consider the following factors in negotiating agreements of referral:
(a) The agency’s legal authority to investigate;
(b) The agency’s staff resources;
(c) The agency’s performance record;
(d) The agency’s ability to conduct an independent investigation, considering the potential respondents;
(e) The agency’s willingness to adhere to Commission standards of investigation.

(3) An agreement of referral shall specify:
(a) The categories of complaints to be referred;
(b) The number of complaints to be referred, which may be all complaints within the referral agency’s jurisdiction;
(c) The standards and procedures governing referrals;
(d) The period of time covered by the agreement, which shall not be greater than one year.

(4) Upon fulfillment of the criteria set forth in subsections 60Y-5.002(2) and (3), F.A.C., the Commission shall approve the negotiated agreement of referral. When an agreement has been approved by the Commission, all complaints filed with the Commission which are subject to the agreement shall be referred to the referral agency. The referral agency shall report its action on the complaint to the Executive Director. Substantial weight shall be accorded to any final findings and orders of the referral agency.
(5) If the referral of the complaint does not result in settlement or withdrawal of the complaint, the Executive Director shall assign the complaint, with the report of the referral agency for investigation, determination of reasonable cause or conciliation, as may be appropriate.
Specific Authority 760.06(13), 760.11(14) FS. Law Implemented 760.03(7), 760.06, 760.10(11), 760.11(2), (12) FS. History–New 11-2-78, Amended 8-12-85, Formerly 22T-9.02, 22T-9.002.

60Y-5.003 FAC | INVESTIGATION OF COMPLAINTS

(1) By Whom. The investigation of the complaint shall be made by the Office of Employment Investigations or by any other person designated by the Executive Director. The Executive Director may utilize services of other public agencies, state, local or federal, which are charged with the administration of fair employment practice laws, and may utilize the information gathered by such.
(2) Statement of Complainant. During the course of an investigation, the complainant may be required to provide a statement which includes:
(a) A statement of each particular harm which the aggrieved person has suffered and the date on which each harm occurred;
(b) For each harm, a statement specifying the act, policy or practice which is alleged to be unlawful;
(c) For each act, policy, or practice alleged to have harmed the aggrieved person, a statement of the facts which lead the complainant to believe that the act, policy or practice is discriminatory.

(3) Requests for Information. During the course of an investigation, the Office of Employment Investigations may request of any person information concerning the facts and circumstances of the complaint. Requests for information may be made in the following manner:
(a) Oral interviews;
(b) Written interrogatories;
(c) Requests for production of documents;
(d) Requests for entry upon land for inspection and other purposes;
(e) Requests for a written statement or affidavit.

(4) Failure to Provide Information – Respondent. In the event a respondent fails to provide information within that person’s control, which is requested pursuant to subsection (3), and reasonable notice and opportunity to cure have been given, an inference may be drawn, in a determination of reasonable cause pursuant to Rule 60Y-5.004, F.A.C., that such information is adverse to the respondent’s interest.
(5) Failure to Cooperate – Complainant.
(a) Where the complainant fails to provide a necessary statement, fails or refuses to appear or be available for interview or meetings, fails or refuses to provide necessary information requested by the Office of Employment Investigations pursuant to this section or otherwise refuses to cooperate to the extent that the Office of Employment Investigations is unable to resolve the complaint, and after notice the complainant has failed to duly respond to the Office of Employment Investigations within 30 days, the Executive Director may dismiss the complaint, which shall constitute final Agency action.
(b) In the event a complainant fails to appear at or fails or refuses to participate in a fact-finding conference scheduled in the complainant’s area of residence or at the place most convenient to all parties as determined by the Office of Employment Investigations, and after being provided at least fourteen days notice of such conference, which notice shall advise complainant of the provisions of this rule, the Executive Director may dismiss the complaint; provided, however, that no complaint may be dismissed pursuant to this rule where within fourteen days of the scheduled conference the complainant has filed with the Commission information establishing good cause for complainant’s nonappearance or nonparticipation. Such information should include sworn statements of those individuals having direct knowledge of pertinent events causing the nonappearance or nonparticipation, as well as any other relevant evidence.

(6) Subpoena. In the event any person fails to provide requested information, the Executive Director may issue and sign a subpoena on behalf of the Commission. The subpoena shall state the name and address of the issuer, identify the person subpoenaed, the person to whom and the place, date, and time at which it is returnable. A subpoena may be returnable to a representative of the Commission.
(7) Enforcement of Subpoena. In the event the person to whom the subpoena is directed fails to obey the subpoena, the Executive Director may direct the General Counsel to apply to a circuit court for an order of compliance.
(8) Suspension of Investigation. Upon the request of the complainant or respondent, the Executive Director or his designee may suspend an investigation during the pendency of a grievance proceeding, on the same subject, to which the complainant and respondent are parties. This suspension shall normally be granted for not more than 45 days and only if there is reason to believe that the pending proceeding will fully resolve the matters raised by the complaint.
(9) Access to Files During Investigation. Information obtained during the investigation of a complaint shall be disclosed only to the complainant, respondent or their authorized representative, or to a witness, only when disclosure is deemed necessary for the investigation or for securing appropriate disposition of the complaint.
(10) Negotiated Settlement. During the mediation and/or investigation processes, the Commission shall endeavor to encourage the complainant and the respondent to settle the complaint on mutually agreeable terms. If the settlement is achieved by a Negotiated Settlement Agreement, its terms shall be reduced to writing and signed and dated by the complainant and respondent. If a settlement is achieved as a Withdrawal with Settlement, only the complainant need sign and date. A copy of the agreement shall be filed with the Clerk. A complaint which has been settled may be dismissed by the Executive Director upon such terms and at such time as may be provided in the written agreement subject to compliance.
Specific Authority 760.06(13), 760.11(14) FS. Law Implemented 760.03(7), 760.06, 760.10, 760.11(2), (12) FS. History–New 11-2-78, Amended 8-12-85, Formerly 22T-9.03, Amended 8-11-86, Formerly 22T-9.003, Amended 2-5-04.

60Y-5.004 FAC | EXECUTIVE DIRECTOR’S INVESTIGATORY DETERMINATION; NOTICE

(1) Upon completion of an investigation, if a complaint has not been settled or withdrawn, the Office of Employment Investigations shall report the investigation, with recommendation, to the Office of General Counsel. The Office of General Counsel shall review the report and shall make a recommendation to the Executive Director as to whether there is reasonable cause to believe that an unlawful employment practice has occurred.
(2) If the recommendation is based upon lack of jurisdiction over the respondent or subject matter of the complaint or upon untimely filing of the complaint, the Executive Director may dismiss the complaint pursuant to subsection 60Y-5.006(3) or (11), F.A.C., provided that the investigation does not reveal any disputed issues of material fact. The Executive Director shall issue a determination on the foregoing bases of lack of jurisdiction or untimeliness where disputed issues of material fact appear to exist.
(3) After a determination has been made by the Executive Director, the Clerk shall serve a Notice of Determination, with copies of the determination, upon the complainant and the respondent.
(4) A Notice of Determination of Reasonable Cause shall include an invitation to participate in conciliation and shall advise the complainant of the elective right to file either a Petition for Relief, pursuant to Rule 60Y-5.008, F.A.C., within 35 days of the date of determination or a civil action within one year of the date of determination. A Petition for Relief form, in blank, shall be provided to the complainant at the time of service of the notice.
(5) A Notice of Determination of No Reasonable Cause, No Jurisdiction or Untimeliness shall advise the complainant of the right to file a Petition for Relief, pursuant to Rule 60Y-5.008, F.A.C., within 35 days of the date of determination. A Petition for Relief form, in blank, shall be provided to the complainant at the time of service of the notice.
(6) After service of a Notice of Determination, the parties named in the determination may inspect the records and documents, in the custody of the Commission, which pertain to the determination. The Executive Director may direct that a particular record, document or portion thereof be withheld from inspection by a party only when necessary for the protection of a witness or third party, or for the preservation of a trade secret.
Specific Authority 760.06(13) FS. Law Implemented 760.03(7), 760.06, 760.10, 760.11 FS. History–New 11-2-78, Amended 6-16-83, 8-12-85, Formerly 22T-9.04, 22T-9.004, Amended 2-5-04.

60Y-5.005 FAC | CONCILIATION

(1) After service of a Notice of Determination of Reasonable Cause pursuant to Rule 60Y-5.004, F.A.C., the Commission shall endeavor to eliminate any unlawful employment practice by informal methods of conference, conciliation and persuasion.
(2) The Commission shall attempt to achieve a just resolution of all violations found, and to obtain agreement that the respondent will eliminate the unlawful practice and provide appropriate affirmative relief. Where such conciliation attempts are successful, the terms of the conciliation agreement shall be reduced to writing and signed by the complainant, the respondent and the Executive Director or the person designated by the Executive Director. The original of the signed agreement shall be filed with the Clerk, and copies shall be served upon the respondent and the complainant.
(3) A duly executed conciliation agreement shall operate as a dismissal of the complaint; however, prior to the filing of the conciliation agreement, the parties may stipulate therein to bringing the agreement before a Panel of Commissioners. The Panel in its sole discretion may adopt the conciliation agreement as a consent order.
(4) If conciliation has not been signed and the complaint has not been withdrawn or dismissed within the time period established for filing a Petition for Relief, the Executive Director shall dismiss the complaint.
Specific Authority 760.06(13) FS. Law Implemented 760.06, 760.10 FS. History–New 11-2-78, Amended 6-16-83, 8-29-84, 8-12-85, Formerly 22T-9.05, 22T-9.005, Amended 2-5-04.

60Y-5.006 FAC | ADMINISTRATIVE DISMISSAL OF A COMPLAINT

The Executive Director, on behalf of the Commission, shall dismiss a complaint upon one or more of the following grounds:
(1) The complainant has failed or refused to cooperate or has failed to appear at or fails or refuses to participate in a duly noticed fact-finding conference and after notice pursuant to subsection 60Y-5.003(5), F.A.C., has failed to duly respond or show good cause for such nonappearance or nonparticipation;
(2) The complaint has been resolved by negotiated settlement pursuant to subsection 60Y-5.003(10), F.A.C.;
(3) The complaint has not been timely filed with the Commission;
(4) After service of Notice of Determination of Reasonable Cause, No Reasonable Cause, or No Jurisdiction, the complainant has failed to file a Petition for Relief pursuant to Rule 60Y-5.008, F.A.C.;
(5) Anytime after the expiration of 180 days from the date of filing the complaint when a Determination of Reasonable Cause or No Reasonable Cause has not been issued by the Commission and after the Complainant files notice of a planned, or files a, civil action in a court of competent jurisdiction;
(6) The complainant cannot be located after reasonable efforts to locate have been made and there is no response from the complainant within 30 days after notice was sent by certified mail to the complainant’s last known address;
(7) An agreement to submit to arbitration has been filed pursuant to Rule 60Y-5.009, F.A.C.;
(8) The complainant has voluntarily dismissed the petition for relief pursuant to subsection 60Y-5.008(7), F.A.C.;
(9) The complainant has voluntarily withdrawn the complaint; or
(10) There is no jurisdiction over the respondent or subject matter of the complaint.
Specific Authority 760.06(13) FS. Law Implemented 20.05, 760.06, 760.11 FS. History–New 11-2-78, Amended 6-16-83, 8-29-84, 8-12-85, Formerly 22T-9.06, Amended 8-11-86, Formerly 22T-9.006, Amended 2-5-04.

60Y-5.008 FAC | PETITION FOR RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE

(1) Petition. A complainant may file a Petition for Relief from an Unlawful Employment Practice within 35 days of the Date of Determination of Reasonable Cause, No Reasonable Cause, No Jurisdiction or Untimeliness. A complainant who is not represented by an attorney may file a Petition for Relief without copies or proof of service, and the Clerk shall prepare copies and serve them upon all other parties.
(2) For good cause shown, the Chairperson may grant an extension of time to file the Petition for Relief from an Unlawful Employment Practice, provided the motion for extension of time is filed within the 35-day period prescribed by subsection 60Y-5.008(1), F.A.C.
(3) Procedures. Petitions for Relief, and proceedings thereupon, are governed by the provisions of Chapters 28-106 and 60Y-4, F.A.C., except as otherwise provided by this section.
(4) Class Allegations.
(a) The petition may include an allegation that the respondent has acted or refused to act on grounds generally applicable to a class, in which case the petition shall also include a description of the class of persons allegedly affected.
(b) If the petition contains class allegations, the administrative law judge, on motion of a party, may include in the recommended order a proposed certification of the class if:
1. The class is so numerous that joinder of all members is impractical,
2. There are questions of law or fact common to the class,
3. The claims of the petitioner are typical of the claims of the class, and
4. The petitioner will fairly and adequately protect the interests of the class.

If the administrative law judge proposes that a class be certified, the administrative law judge may also include in the recommended order proposed findings and conclusions concerning the respondent’s liability to the class. However, the administrative law judge shall not initially consider other class issues unless it is determined that such consideration will not cause undue delay to the completion of the hearing.

(5) Final Orders; Relief; Remand. Upon consideration of a recommended order, the Commission or Panel may order that the petition and complaint be dismissed or may determine that an unlawful employment practice has occurred. In the event the Commission or Panel determines that an unlawful employment practice has occurred, it shall issue an order prohibiting the practice and providing relief from the effects of the practice. If the Commission or Panel finds that the proceeding is properly maintained as a class proceeding, the order of the Commission or Panel may direct a remand to the administrative law judge of any class issue which the Commission or Panel has not determined. The order of the Commission or Panel shall constitute final agency action as to all matters except those which are remanded to the administrative law judge.
(6) Proceedings After Remand. An order of remand, pursuant to subsection (5), or a subsequent order of the administrative law judge, may direct that notice of pendency of the proceeding be served upon members of the class. Such an order shall specify the manner of service of the notice and the person responsible for service. Any member of the class who does not, within 15 days of service of the notice of pendency or within such other time as the order may provide, file with the Commission an election of non- participation in the class shall be bound by an order of the Commission or Panel made subsequent to the giving of such notice.
(7) Voluntary Dismissal. A Petition for Relief may be dismissed by the Petitioner without order of the administrative law judge, Panel of Commissioners or Commission (i) by serving, or during hearing by stating on the record, a notice of dismissal at any time before the issuance of a recommended order or (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action. The dismissal operates with prejudice with respect to Petitioner’s Chapter 760, F.S., administrative remedies and constitutes final agency action.
Specific Authority 760.06(13) FS. Law Implemented 760.06, 760.10 FS. History–New 11-2-78, Amended 2-4-82, 6-16-83, 8-29-84, 8-12-85, Formerly 22T-9.08, 22T-9.008, Amended 2-5-04.

60Y-5.009 FAC | ARBITRATION

(1) After the filing of a complaint, the complainant and respondent may agree to submit the issues raised by the complaint or by a determination of reasonable cause to binding arbitration. The agreement to submit to arbitration shall be in writing and shall specify the procedure and law which will govern the arbitration proceeding. An executed copy of the agreement shall be filed with the Clerk.
(2) Unless otherwise provided in the agreement to submit to arbitration, the Executive Director may dismiss the complaint which is the subject of the agreement upon the filing of the agreement as provided in subsection (1).
Rulemaking Authority 760.06(13) FS. Law Implemented 760.06, 760.10 FS. History–New 11-2-78, Formerly 22T-9.09, 22T-9.009.

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