Hum 100-300

CHAPTER Hum 200 PROCEEDINGS PRIOR TO PUBLIC ADJUDICATIVE HEARING - EXPIRED

REVISION NOTE:

Document #8814, effective 2-3-07, adopted Hum 200 entitled “Proceedings Prior to Public Adjudicative Hearing.” Document #8815-A, effective 2-3-07, adopted Parts Hum 301 through Hum 320 in Chapter Hum 300 entitled “Public Adjudicative Hearings and Other Practices and Procedures.” Document #8815-B, effective 2-3-07, adopted Part Hum 321 entitled “Explanation of Adopted Rules” in Chapter Hum 300.

Documents #8814 and #8815-A made extensive changes to the wording, format, and numbering in the former Hum 200 entitled “Rules of Practice and Procedure”, which had expired 9-14-06 as an interim rule under Document #8589. See Revision Note for Hum 300. Hum 321 under Document #8815-B had not been in effect before. Documents #8814 and #8815-A therefore replace all prior filings affecting the former Hum 200 Document #8814. The rules in Hum 200 under document #8814 will expire on 2-3-15 unless readopted, amended, or repealed before that. Hum 301 through Hum 320 in Document # 8815-A will not expire except pursuant to RSA 541-A:17, II.

The filings of the Human Rights Commission affecting the former Hum 200 include the following documents:

#1995, eff 4-5-82

#2196, eff 11-30-82

#2906, eff 11-15-84

#3157, eff 12-12-85

#3158, eff 12-12-85

#4224, eff 2-10-87, EXPIRED 2-10-93

#6686, eff 2-5-98, EXPIRED 2-5-06

#8589, INTERIM, eff 3-18-06, EXPIRED 9-14-06

PART Hum 201 DEFINITIONS

Hum 201.01 Definitions. Terms in this chapter shall have the following meanings:

(a) “Appearance" means a written notification to the commission that counsel for a party or other person intends to participate in pre-hearing proceedings governed by this chapter;

(b) "Complaint" means a written verified statement charging illegal discrimination under RSA 354-A;

(d) "Determination of probable cause" means a determination made after investigation that there is sufficient evidence upon which a fact finder could form a reasonable belief that the respondent(s) committed one or more unlawful practices;

(e) Director" means the executive director of the New Hampshire commission for human rights;

(f) "Equal Employment Opportunity Commission (EEOC)" means the federal agency which was created by 42 U.S.C. § 2000e-4 to enforce Title VII of the Civil Rights Act of 1964, as amended;

(g) "Filed" means received by the commission at its offices;

(h) "Investigating commissioner" means the commissioner designated by the chair of the commission to supervise the commission's investigation of a complaint, make a determination of probable cause or no probable cause, and, upon a determination of probable cause, conduct efforts at conciliation;

(i) "Investigator" means a professional staff member of the commission assigned by the director to investigate a complaint;

(j) "Notice of right to sue" means a notice issued by the US Equal Employment Opportunity Commission pursuant to 29 C.F.R. §1601.28(a)(1) or (2);

(k) "Parties" means the complainant and one or more respondents;

(l) "Pre-determination conference" means a meeting that is not a hearing, held for purposes of investigation or negotiation or both;

(m) "Pro hac vice representation" means representation at the commission in a particular case only by an attorney not licensed to practice in New Hampshire;

(n) "Respondent" means one or more of the following against which a complaint of discrimination has been filed:

(1) A natural person;

(2) A corporation;

(3) An unincorporated association;

(4) An organization;

(5) A partnership;

(6) A limited liability company;

(7) A professional corporation;

(8) A business; and

(9) A unit of state or local government; and

(o) "Verified" means signed, and sworn or affirmed, before a notary public or justice of the peace.

Source. #6686, eff 2-5-98, EXPIRED: 2-5-06

New. #8589, INTERIM, eff 3-18-06, EXPIRED: 9-14-06

New. (See Revision Note at chapter heading for Hum 200) #8814, eff 2-3-07, EXPIRED: 2-3-15

PART Hum 202 COMPLAINTS

Hum 202.01 Filing a Complaint.

(a) The following people and entities shall be entitled to file a complaint:

(1) Any person claiming to be aggrieved by an unlawful discriminatory practice;

(2) Pursuant to RSA 354-A:21, I(a), any member of the commission;

(3) Pursuant to RSA 354-A:21, I(a), the attorney general; and

(4) Pursuant to RSA 354-A:21, I(b), any employer some or all of whose employees refuse, or threaten to refuse, to cooperate with the provisions of RSA 354-A.

(b) A complaint shall be:

(1) In writing;

(2) Signed and dated by the complainant; and

(3) Verified.

(d) A complaint filed by a parent or guardian on behalf of a minor child shall be signed, dated and verified by the parent or guardian on behalf of such child.

Source. #6686, eff 2-5-98, EXPIRED: 2-5-06

New. #8589, INTERIM, eff 3-18-06, EXPIRED: 9-14-06

New. (See Revision Note at chapter heading for Hum 200) #8814, eff 2-3-07, EXPIRED: 2-3-15

Hum 202.02 Employment Discrimination Complaints.

(a) All complaints of employment discrimination or employment discrimination combined with other types of discrimination, including those filed pursuant to RSA 354-A only and those filed pursuant to both RSA 354-A and federal law, shall be made:

(1) On an EEOC form charging discrimination, provided by the commission and further described in (b) below; or

(2) In a letter including the information called for by (b) below.

(b) On the EEOC charge form the complainant shall provide the following:

(1) The complainant's name, including whether the complainant uses the title "Mr., Ms. or Mrs.;

(2) The complainant's home telephone number;

(3) The complainant's full address;

(4) The complainant's date of birth;

(5) Using a pre-printed list of choices, the designation of the respondent(s) as the complainant's:

a. Employer;

b. Labor organization;

c. Employment agency;

d. Apprenticeship committee; or

e. State or local government agency;

(6) The name of the respondent(s);

(7) The number of employees or members of the respondent(s);

(8) The telephone number, including area code, of the respondent(s);

(9) The full address, including county, of the respondent(s);

(10) Using check boxes, designation of the alleged discrimination as based on one or more of the following:

a. Race;

b. Color;

c. Sex;

d. Religion;

e. National origin;

f. Retaliation;

g. Age;

h. Disability; and

i. Other;

(11) The earliest and latest dates the discrimination took place;

(12) Whether the discrimination continues;

(13) A written statement of the particulars;

(14) The date; and

(15) The verified signature of the complainant.

(c) If the commission receives a complaint which appears to allege employment discrimination but does not include all of the information called for by (b) above, commission staff will contact the complainant and assist the complainant in providing the required information.

Source. #6686, eff 2-5-98, EXPIRED: 2-5-06

New. #8589, INTERIM, eff 3-18-06, EXPIRED: 9-14-06

New. (See Revision Note at chapter heading for Hum 200) #8814, eff 2-3-07, EXPIRED: 2-3-15

Hum 202.03 Complaints of Discrimination Other than Employment Discrimination.

(a) A complaint of discrimination not including employment discrimination shall be made on a form provided by the commission or in a letter containing the following:

(1) The complainant's:

a. Name;

b. Full mailing address;

c. Home telephone number; and

d. Work telephone number;

(2) If the complaint is filed by the attorney general, the name of the attorney general;

(3) The name, full mailing address and telephone number of each respondent;

(4) Whether the alleged unlawful discriminatory practice was in housing, public accommodations or commercial property;

(5) Each of the following bases on which the practice complained of are alleged to have discriminated:

a. Race;

b. Marital status;

c. National origin;

d. Religion;

e. Color;

f. Age;

g. Mental disability;

h. Physical disability;

i. Sex;

j. Familial status;

k. Sexual orientation; and

l. Retaliation for making a complaint of unlawful discrimination;

(6) The date of the alleged most recent act of discrimination or of continuing discrimination;

(7) A statement of the alleged discriminatory practice complained of;

(8) A statement of the facts alleged to constitute the discriminatory practice;

(9) Whether the complainant has filed any other action based on the same allegation;

(10) The date; and

(11) The verified signature of the complainant.

(b) If the commission receives a complaint which appears to allege discrimination but does not include all of the information called for by (a) above, commission staff will contact the complainant and assist the complainant in providing the required information.

Source. (See Revision Note at chapter heading for Hum 200) #8814, eff 2-3-07, EXPIRED: 2-3-15

Hum 202.04 Method and Time of Filing A Complaint.

(a) A complaint shall be filed by:

(1) Delivery of the original complaint by hand, delivery service or delivery company;

(2) United States mail; or

(3) Facsimile transmission of a copy of the original complaint together with other delivery of the original complaint.

(b) If filed by one of the methods described in (a)(1) and (a)(2) above, the complaint shall be received by the commission at its offices:

(1) Within 180 days after the date of occurrence of the alleged unlawful discriminatory practice; or

(2) If the alleged discriminatory practice is of a continuing nature, any date after the start of the alleged discriminatory practice, but no later than 180 days from the date of the last incident of discriminatory conduct.

(1) The faxed copy shall be received by the commission at its offices by the date called for by (b) above; and

(2) The original complaint shall be received by the commission at its offices no more than 14 days later.

Source. (See Revision Note at chapter heading for Hum 200) #8814, eff 2-3-07, EXPIRED: 2-3-15

Hum 202.05 Amendment of Complaints and Responses.

(a) The complainant or commissioner filing a complaint may amend the complaint at any time prior to the date scheduled for the pre-hearing conference if the amendment is for any of the following purposes:

(1) To cure technical defects or omissions, including failure to verify;

(2) To clarify and amplify allegations made in the original complaint; or

(3) To allege additional acts constituting unlawful discriminatory practices which relate to the subject manner of the original complaint.

(b) The date of filing of any amendment shall be deemed, for the purpose of the time limit on the filing of complaints, to be the same as the date of filing of the original complaint.

(d) When a complaint has been amended, the respondent shall have the opportunity to amend the response.

Source. (See Revision Note at chapter heading for Hum 200) #8814, eff 2-3-07, EXPIRED: 2-3-15

PART Hum 203 CHOICE OF SUPERIOR COURT AS FORUM

Hum 203.01 Removal of Case to Superior Court by the Complainant.

(a) Pursuant to RSA 354-A:21-a, I any person alleging to be aggrieved by any practice made unlawful by RSA 354-A shall have the option to remove his or her complaint by filing a civil action in superior court within the limitations set forth in Hum 203.03 and in accordance with (b) below.

(b) The civil action shall be brought:

(1) Not later than 3 years after the alleged unlawful practice; and

(2) Within the following time limits:

a. No earlier than 180 days following a timely filing with the commission; or

b. If the commission assents in writing, earlier than 180 days following a timely filing with the commission.

(c) A complainant wishing to file a civil action earlier than 180 days following a timely filing with the commission shall request the assent of the commission by:

(1) Filing a signed written motion stating:

a. The request and the reasons for it; and

b. Compliance with (2) and (3) below;

(2) Forwarding a copy of the motion to all other parties; and

(3) Seeking concurrence from all other parties.

(d) All other parties shall have the right to object to the motion described in (c) above within 10 days of receipt of the motion.

(e) The investigating commissioner shall make a decision on the motion described in (c) above within 20 days of receipt of any objection to the motion or 30 days from the filing of the motion, whichever comes later.

(f) The investigating commissioner shall grant the motion if:

(1) The complainant seeks to remove in order to consolidate the complaint of discrimination with other causes of action in court; or

(2) The commission can not complete its investigation within 180 days.

(g) A complainant who has filed a civil action in superior court:

(1) Shall notify the commission of having done so; and

(2) Shall not file a subsequent complaint with the commission based upon the same alleged unlawful practice.

Source. #6686, eff 2-5-98, EXPIRED: 2-5-06

New. #8589, INTERIM, eff 3-18-06, EXPIRED: 9-14-06

New. (See Revision Note at chapter heading for Hum 200) #8814, eff 2-3-07, EXPIRED: 2-3-15

Hum 203.02 Removal of Case to Superior Court by the Respondent After Determination of Probable Cause.

(a) Pursuant to RSA 354-A:21-a, a respondent shall have the option to remove a case to superior court for trial within the limitations of Hum 203.03 and by following the procedures in (b) below whenever the investigating commissioner has:

(1) Made a determination of probable cause;

(2) Notified the parties to that effect; and

(3) Issued an order scheduling a public adjudicative hearing.

(b) The respondent shall:

(1) File with the commission:

a. Written notice of intent to remove the case to superior court, including a statement that a copy of the notice has been forwarded to the complainant or to the complainant’s attorney; and

b. Proof of having filed the case in superior court consisting of a copy of the filed writ or complaint stamped by the superior court to show date of filing; and

(2) Forward to the complainant or to the complainant’s attorney a copy of the notice described in (1)a. above.

Source. #6686, eff 2-5-98, EXPIRED: 2-5-06

New. #8589, INTERIM, eff 3-18-06, EXPIRED: 9-14-06

New. (See Revision Note at chapter heading for Hum 200) #8814, eff 2-3-07, EXPIRED: 2-3-15

Hum 203.03 Limitation on Removal of Cases. Pursuant to RSA 354-A:21-a, I, a superior court trial shall not be available:

(a) To any party if a public adjudicative hearing before the commission has begun

or has been concluded; or

(b) To a complainant whose complaint has been dismissed as lacking in probable cause and who has not prevailed on an appeal to superior court.

Source. #6686, eff 2-5-98, EXPIRED: 2-5-06

New. #8589, INTERIM, eff 3-18-06, EXPIRED: 9-14-06

New. (See Revision Note at chapter heading for Hum 200) #8814, eff 2-3-07, EXPIRED: 2-3-15

PART Hum 204 REPRESENTATION BY ATTORNEY

Hum 204.01 Representing Clients in Proceedings Pursuant to Hum 200.

(a) An attorney who is an active member in good standing of the Bar of New Hampshire shall be eligible to represent a client in proceedings pursuant to this chapter by:

(1) Participating in all conferences and meetings;

(2) Signing documents on behalf of his or her client, except as otherwise provided in these rules; and

(3) Filing documents.

(b) An attorney who is not a member of the Bar of New Hampshire shall be similarly eligible to represent a client if:

(1) Approved by the commission pursuant to Hum 204.04 to represent his or her client pro hac vice; and

(2) Accompanied at all conferences and meetings by the New Hampshire attorney who has filed the appearance called for by Hum 204.02(a)(2)a. or Hum 204.02(b)(2).

Source. #6686, eff 2-5-98, EXPIRED: 2-5-06

New. #8589, INTERIM, eff 3-18-06, EXPIRED: 9-14-06

New. (See Revision Note at chapter heading for Hum 200) #8814, eff 2-3-07, EXPIRED: 2-3-15

Hum 204.02 Eligibility to Provide Pro Hac Vice Representation. An attorney shall be eligible to represent a client pro hac vice if the attorney is:

(a) Employed at a law firm which has a partner or associate who:

(1) Is an active member in good standing of the New Hampshire Bar; and

(2) Will:

a. File an appearance; and

b. Assist the attorney in representing his or her client before the commission; or

(b) Temporarily affiliated with a New Hampshire law firm and assisted in representing his or her client by a member of that firm who:

(1) Is an active member in good standing of the New Hampshire Bar; and

(2) Will file an appearance.

Source. (See Revision Note at chapter heading for Hum 200) #8814, eff 2-3-07, EXPIRED: 2-3-15

Hum 204.03 Application to Provide Pro Hac Vice Representation.

(a) An attorney who is not a member of the Bar of New Hampshire and wishes to represent a client pro hac vice in proceedings pursuant to this chapter shall:

(1) Be eligible under Hum 204.02 to provide pro hac vice representation; and

(2) File a signed and verified motion providing the following information:

a. The applicant’s residence and business address;

b. The name, address and phone number of each client sought to be represented;

c. The state bar association(s) to which the applicant has been admitted to practice and the respective period(s) of admission;

d. Whether the applicant has:

1. Been denied admission pro hac vice in any New Hampshire court;

2. Had admission pro hac vice revoked in New Hampshire court or agency; or

3. Otherwise been formally disciplined or sanctioned by any New Hampshire court;

e. If the applicant has been denied pro hac vice admission, had pro hac vice admission revoked or otherwise been formally disciplined or sanctioned by a New Hampshire court as set forth in d. above:

1. The nature of the allegations;

2. The name of the authority taking the action;

3. The caption of the proceedings;

4. The date the proceedings were filed; and

5. The findings made and action taken in connection with such proceedings;

f. Whether, within the last 5 years, any formal disciplinary proceedings have been brought against the applicant by any disciplinary authority in a jurisdiction other than New Hampshire;

g. If formal disciplinary proceedings have been brought as set forth in f. above:

1. The nature of the allegations;

2. The name of the person or authority bringing such proceedings;

3. The date the proceedings were initiated and finally concluded;

4. The nature of the proceedings; and

5. The findings made and actions taken in connection with the proceedings;

h. Whether, during the last 5 years, the applicant has been formally held in contempt or otherwise sanctioned in a written order by any court for disobedience to its rules or orders;

i. If the applicant has been held in contempt or sanctioned by a court as set forth in h. above:

1. The nature of the allegations;

2. The name of the court before which the proceedings were conducted;

3. The date of the contempt order or sanction;

4. The case caption of the proceedings; and

5. The substance of the court’s rulings;

j. Whether, within the last 2 years, the applicant has filed an application to appear pro hac vice in New Hampshire;

k. If the applicant has, within the last 2 years, filed an application to appear pro hac vice in New Hampshire:

1. The name and address of each court or agency in which such an application was filed;

2. Full identification of each case in which such an application was filed;

3. The date of each such application; and

4. The outcome of each such application;

l. The name, address, telephone number and bar number of an active member of the New Hampshire Bar in good standing who will assist the applicant as described in Hum 204.02; and

m. A statement that a copy of the motion has been forwarded to the opposing party or his or her attorney of record.

(b) An applicant who has been held in contempt or sanctioned by a court as described in h. above shall attach to his or her application a copy of the court's order or a transcript of the oral rulings of the court.

Source. (See Revision Note at chapter heading for Hum 200) #8814, eff 2-3-07, EXPIRED: 2-3-15

Hum 204.04 Approval of Pro Hac Vice Representation. The commission shall approve motions for pro hac vice representation unless:

(a) The applicant is ineligible pursuant to Hum 204.02 to provide such representation; or

(b) The applicant has appeared so frequently or so periodically as to constitute the practice of law in New Hampshire.

Source. (See Revision Note at chapter heading for Hum 200) #8814, eff 2-3-07, EXPIRED: 2-3-15

PART Hum 205 APPEARANCES

Hum 205.01 Notice of Appearance. An attorney representing a party in proceedings pursuant to this chapter shall file a written notice of appearance.

Source. #6686, eff 2-5-98, EXPIRED: 2-5-06

New. #8589, INTERIM, eff 3-18-06, EXPIRED: 9-14-06

New. (See Revision Note at chapter heading for Hum 200) #8814, eff 2-3-07, EXPIRED: 2-3-15

Hum 205.02 Withdrawal of Appearance. An attorney who ceases a representation for which the attorney has filed a written notice of appearance shall immediately file a written notice of withdrawal of appearance.

Source. #6686, eff 2-5-98, EXPIRED: 2-5-06

New. #8589, INTERIM, eff 3-18-06, EXPIRED: 9-14-06

New. (See Revision Note at chapter heading for Hum 200) #8814, eff 2-3-07, EXPIRED: 2-3-15

Hum 205.03 Service Upon Attorney. When a party is represented by an attorney who has filed a written notice of appearance, service upon the attorney shall be deemed valid service upon the party, unless the attorney has timely filed a written notice of withdrawal of appearance.

Source. #6686, eff 2-5-98, EXPIRED: 2-5-06

New. #8589, INTERIM, eff 3-18-06, EXPIRED: 9-14-06

New. (See Revision Note at chapter heading for Hum 200) #8814, eff 2-3-07, EXPIRED: 2-3-15

PART Hum 206 INVESTIGATORS

Hum 206.01 Investigating Commissioner.

(a) After the filing of a complaint, the chair of the commission shall designate one of the commissioners to act as the investigating commissioner for that complaint.

(b) A commissioner who has filed a complaint under Hum 202.01(a)(2) shall not be designated to act as the investigating commissioner for that complaint.

(c) The investigating commissioner shall issue any subpoenas required for a full and fair investigation of a case which is before him or her for investigation.

Source. #6686, eff 2-5-98, EXPIRED: 2-5-06

New. #8589, INTERIM, eff 3-18-06, EXPIRED: 9-14-06

New. (See Revision Note at chapter heading for Hum 200) #8814, eff 2-3-07, EXPIRED: 2-3-15

Hum 206.02 Assignment of Investigator. The director shall assign a staff investigator to investigate the complaint under the supervision of the director and the investigating commissioner.

Source. #6686, eff 2-5-98, EXPIRED: 2-5-06

New. #8589, INTERIM, eff 3-18-06, EXPIRED: 9-14-06

New. (See Revision Note at chapter heading for Hum 200) #8814, eff 2-3-07, EXPIRED: 2-3-15

Hum 206.03 Role of the Investigator.

(a) The staff investigator shall:

(1) Discover facts;

(2) Make reports and recommendations to the investigating commissioner; and

(3) Assist the parties in settlement negotiations.

(b) The investigator shall maintain a neutral position with regard to the parties at all times.

Source. #6686, eff 2-5-98, EXPIRED: 2-5-06

New. #8589, INTERIM, eff 3-18-06, EXPIRED: 9-14-06

Source. (See Revision Note at chapter heading for Hum 200) #8814, eff 2-3-07, EXPIRED: 2-3-15

PART Hum 207 INVESTIGATIONS

Hum 207.01 Additional Information from the Complainant. If the investigator considers the information relevant to the investigation, the investigator shall request the complainant to provide information including the following:

(a) A detailed written account of the events alleged in the complaint;

(b) A list of potential witnesses for the complainant together with:

(1) Their names, addresses, telephone numbers and any other available identifying information about them; and

(2) A brief description of the information each witness is expected to provide; and

Source. #6686, eff 2-5-98, EXPIRED: 2-5-06

New. #8589, INTERIM, eff 3-18-06, EXPIRED: 9-14-06

New. (See Revision Note at chapter heading for Hum 200) #8814, eff 2-3-07, EXPIRED: 2-3-15

Hum 207.02 Additional Information from the Respondent.

(a) If the investigator considers the information relevant to the investigation, the investigator shall request the respondent to provide information including the following:

(1) A written verified response to the complaint complying with (b) below;

(2) Records and documents, including but not limited to:

a. Records relating to the qualifications, performance and disciplinary history of the complainant;

b. The respondent's records relating to the qualifications, performance and disciplinary history of other individuals; and

c. The respondent's records relating to the person alleged to have committed the discriminatory act(s), including, but not limited to, personnel files, wage records, and the results of any investigations of internal complaints involving that person;

(3) Descriptions and copies of business policies and practices;

(4) A list of individuals who might be similarly situated to the complainant showing, but not limited to, the following information about them:

a. Full names;

b. Protected class status;

c. Compensation; and

d. Last known home addresses and telephone numbers;

(5) A list of individuals who might be similarly situated to the person accused by the complainant of discriminatory act(s), showing, but not limited to, the following information about them:

a. Full names;

b. Protected class status;

c. Compensation; and

d. Last known home addresses and telephone numbers;

(6) A list of potential witnesses for the respondent, including:

a. The names, addresses and telephone numbers of witnesses; and

b. A brief description of the information each witness is expected to provide; and

(7) Any other information relevant to the investigation of the complaint.

(b) A written verified response to the complaint shall include:

(1) The name and address of the respondent;

(2) The name and address of the respondent's attorney if the respondent is represented by counsel;

(3) For each allegation of the complaint contested by the respondent, an answer in the form of:

a. A general or specific denial made on information and belief; or

b. A statement that the respondent is without knowledge or information sufficient to form a belief; and

(4) Any affirmative defenses that the respondent wishes to raise.

(c) Any allegation in the complaint which is not denied in the answer shall be deemed admitted, unless the respondent states in the answer that the respondent is without knowledge or information sufficient to form a belief about the allegation.

Source. #6686, eff 2-5-98, EXPIRED: 2-5-06

New. #8589, INTERIM, eff 3-18-06, EXPIRED: 9-14-06

New. (See Revision Note at chapter heading for Hum 200) #8814, eff 2-3-07, EXPIRED: 2-3-15

Hum 207.03 Obligation to Provide Copies to Parties. The parties or their attorneys shall provide the opposing parties or their attorneys with copies of all materials submitted to the commission during the investigation unless the materials are confidential pursuant to Hum 219.01(b).

Source. #6686, eff 2-5-98, EXPIRED: 2-5-06

New. #8589, INTERIM, eff 3-18-06, EXPIRED: 9-14-06

New. (See Revision Note at chapter heading for Hum 200) #8814, eff 2-3-07, EXPIRED: 2-3-15

PART Hum 208 PRE-DETERMINATION CONFERENCES

Hum 208.01 Scheduling a Pre-Determination Conference.

(a) The director, in consultation with the investigator, shall consider the factors stated in (b) below when deciding whether a pre-determination conference shall be held.

(b) Factors to be considered when deciding whether to schedule a pre-determination conference shall include, but not be limited to:

(1) The following factors favoring the scheduling of such a conference:

a. Bringing the parties together would likely result in a negotiated settlement;

b. Bringing the parties together would enable the investigator to obtain factual information in a manner more efficient than conducting individual, separate interviews;

c. Bringing the parties together would enable the investigator to resolve apparent contradictions in allegations of fact; and

d. Viewing the parties in person would enhance the assessment of credibility; and

(2) The following factors disfavoring the scheduling of such a conference:

a. Settlement is not likely, or might be achieved through alternate methods;

b. The primary issue is the legal interpretation of the statute or rules;

c. There are few differences of fact in the allegations of the parties, and information can be obtained through separate interviews;

d. Holding the conference is likely to arouse hostility;

e. Holding the conference is likely to cause delay; and

f. Holding the conference will otherwise fail to aid the investigation.

Source. #6686, eff 2-5-98, EXPIRED: 2-5-06

New. #8589, INTERIM, eff 3-18-06, EXPIRED: 9-14-06

New. (See Revision Note at chapter heading for Hum 200) #8814, eff 2-3-07, EXPIRED: 2-3-15

Hum 208.02 Attendance at the Pre-Determination Conferences.

(a) The complainant and respondent and, if they are represented by counsel, their attorneys shall attend the pre-determination conference.

(b) The investigator shall request the attendance of such persons as the investigator determines are likely to:

(1) Provide relevant information;

(2) Have authority to settle on behalf of the respondent; or

(3) Otherwise assist in the investigation or settlement of the matter.

(c) The investigator shall, while keeping the number of additional conference participants as small as possible, identify through consultation with the parties any additional participants necessary for the investigatory or settlement purposes of the conference.

(d) The investigator shall exclude from the conference room anyone not requested to attend unless the complainant, respondent and investigator agree that the presence of particular additional individuals would benefit the investigation or settlement negotiations.

Source. #6686, eff 2-5-98, EXPIRED: 2-5-06

New. #8589, INTERIM, eff 3-18-06, EXPIRED: 9-14-06

New. (See Revision Note at chapter heading for Hum 200) #8814, eff 2-3-07, EXPIRED: 2-3-15

Hum 208.03 Procedures for the Investigation Portion of the Pre-Determination Conference.

(a) All relevant information shall be accepted without regard to rules of evidence.

(b) No oaths shall be administered.

(c) No taped or stenographic record shall be made of the conference, but notes shall be kept by the investigator or an assistant for inclusion in the investigation file.

(d) No determination on the merits of the case shall be made at the conference.

(e) Each party shall have a full opportunity during the information gathering part of the conference to give information and reply to statements made by the other party.

(f) The investigator shall determine the order in which participants are asked to speak and the length of time allotted so as to further the goals of fairness and efficiency in the gathering of information.

(g) There shall be no conversation between the parties or between their respective attorneys.

(h) All statements by the parties or their attorneys, and all questions asked by the parties or their attorneys, shall be addressed to the investigator.

(i) All questions to be asked of the parties shall be asked by the investigator.

(j) Parties and attorneys shall have the opportunity to suggest questions for the investigator to ask of the opposing party, and the investigator shall ask them if they are relevant.

(k) Attorneys shall not answer factual questions or make statements of fact on behalf of their clients.

(l) A party who wishes to add to the statements or information provided at the conference may do so in writing if:

(1) The party notifies the investigator of the intention to provide a written statement; and

(2) The written statement is filed within 5 days of the conference.

Source. #6686, eff 2-5-98, EXPIRED: 2-5-06

New. #8589, INTERIM, eff 3-18-06, EXPIRED: 9-14-06

New. (See Revision Note at chapter heading for Hum 200) #8814, eff 2-3-07, EXPIRED: 2-3-15

Hum 208.04 Pre-Determination Settlement Procedures.

(a) After the investigation portion of the conference, the investigator shall:

(1) Review the case separately with each party and discuss possible modes of settlement; and

(2) Encourage settlement.

(b) The investigator shall relay all settlement proposals to the opposing party for a reply.

(c) The investigator shall offer suggestions for settlement if, in the judgment of the investigator, such suggestions will encourage the parties to reach an agreement.

Source. #6686, eff 2-5-98, EXPIRED: 2-5-06

New. #8589, INTERIM, eff 3-18-06, EXPIRED: 9-14-06

New. (See Revision Note at chapter heading for Hum 200) #8814, eff 2-3-07, EXPIRED: 2-3-15

Hum 208.05 Pre-Determination Agreements.

(a) If the parties agree on a settlement at any time prior to a probable cause determination but the complainant does not withdraw the complaint as part of the settlement, the pre-determination agreement shall include the terms required by (b) below.

(b) The pre-determination agreement shall include the following:

(1) The negotiated terms of the agreement, including the dollar amounts of any payments to be made under it;

(2) A statement that:

a. The agreement is a full and complete settlement of the charges filed by the complainant;

b. The commission is a party to the agreement;

c. The agreement may be used as evidence in a subsequent proceeding in which any of the parties allege a breach of the agreement; and

d. The commission's participation does not reflect a judgment by the commission on the merits of the case; and

(3) Such other provisions as the parties negotiate.

(d) The director shall not sign pre-determination agreements containing provisions contrary to RSA 354-A or the commission's rules.

(e) The case shall be closed when:

(1) The pre-determination agreement has been signed by the parties and the director; and

(2) Any payments or attachments specified in the agreement have been received by the party entitled to them.

Source. (See Revision Note at chapter heading for Hum 200) #8814, eff 2-3-07, EXPIRED: 2-3-15

PART Hum 209 INVESTIGATION WHEN NO PRE-DETERMINATION AGREEMENT WAS SOUGHT OR REACHED

Hum 209.01 Further Investigation.

(a) In the event that a pre-determination conference is not held or the parties fail to reach a pre-determination settlement, the investigator shall conduct further investigation as follows:

(1) Interview all parties who are individuals; and

(2) Any of the following considered necessary by the investigator:

a. Interview a representative designated by a respondent entity in accordance with (e) below;

b. Request documents;

c. Request written statements by parties and witnesses;

d. Perform on-site investigations; and

e. Interview co-workers of the complainant and other potential witnesses.

(b) An investigator unable to comply with the obligation of (a)(1) above to interview a party who is an individual shall request that the investigating commissioner issue a written exemption from the obligation.

(1) The investigator cannot locate the party individual;

(2) The complainant fails to proceed with the complaint;

(3) The commission lacks jurisdiction over the matter under investigation; or

(4) The individual to be interviewed refuses to cooperate in the scheduling of the interview.

(d) Interviews shall be conducted in person, by telephone or by other means.

(e) A respondent that is an entity may designate a representative to be present when managerial employees of the respondent are interviewed regarding their role in the decision leading to the complaint or the respondent's policies or practices, but non-managerial employees of the respondent shall be interviewed without a representative of the respondent entity present.

Source. #6686, eff 2-5-98, EXPIRED: 2-5-06

New. #8589, INTERIM, eff 3-18-06, EXPIRED: 9-14-06

New. (See Revision Note at chapter heading for Hum 200) #8814, eff 2-3-07, EXPIRED: 2-3-15

Hum 209.02 Investigation Summation Letter.

(a) When the investigator has completed the investigation, he or she shall send to the parties an investigation summation letter containing the following information:

(1) The fact that the investigation has been completed;

(2) A list of documents reviewed in the course of the investigation;

(3) Identification of non-documentary evidence, other than the statements of individuals, reviewed in the course of the investigation; and

(4) A statement of the deadline, set at least 2 weeks into the future, for a response by the party receiving the letter.

(b) A party receiving an investigation summation letter described in (a) above shall have the opportunity to respond to it by:

(1) Submitting by the deadline established in the letter a written response sent by United States mail, facsimile or e-mail; and

(2) Identifying in the written response one or both of the following:

a. Additional documents the party believes are relevant to the matter under investigation; and

b. The names of additional individuals the party believes to have information relevant to the matter under investigation, together with:

1. Their residential addresses and phone numbers; and

2. A brief description of the information the party believes each named individual can provide.

(c) Noncompliance with the deadline for response set in the investigation summation letter, or the failure of a response to comply with the requirements of (b)(2) above, shall result in denial of that part of a motion for reconsideration of a determination of probable cause which rests on the failure of the investigator to review the additional documents identified in the response or the failure of the investigator to interview the additional individuals named in the response.

Source. #6686, eff 2-5-98, EXPIRED: 2-5-06

New. #8589, INTERIM, eff 3-18-06, EXPIRED: 9-14-06

New. (See Revision Note at chapter heading for Hum 200) #8814, eff 2-3-07, EXPIRED: 2-3-15

Hum 209.03 Investigative Report and Recommendation. When the deadline for response to the investigation summation letters has passed, or the investigator has completed any investigation she or he determines is necessary on the basis of the information in responses to investigation summation letters, the investigator shall submit to the investigating commissioner:

(a) A written report summarizing the information obtained in the investigation, excluding information on the content of any settlement discussions; and

(b) On a separate sheet of paper, the investigator's recommendation with respect to the determination of probable cause.

Source. #6686, eff 2-5-98, EXPIRED: 2-5-06

New. #8589, INTERIM, eff 3-18-06, EXPIRED: 9-14-06

New. (See Revision Note at chapter heading for Hum 200) #8814, eff 2-3-07, EXPIRED: 2-3-15

PART Hum 210 PROBABLE CAUSE DETERMINATIONS BY INVESTIGATING COMMISSIONER; CONSEQUENCES OF DETERMINATIONS

Hum 210.01 Probable Cause Determinations.

(a) On the basis of the investigative report the investigating commissioner shall make a determination of probable cause or no probable cause.

(b) In making the determination of probable cause or no probable cause, the investigating commissioner shall reserve for determination at the public adjudicative hearing disputes involving material fact.

(c) If the investigating commissioner determines that no probable cause exists, the case shall be closed and the parties notified of the closure.

(d) If the investigating commissioner determines that probable cause exists, the investigating commissioner shall endeavor to eliminate the unlawful discriminatory practice that is the subject of the complaint by conciliation as further described in Hum 211.

(e) If the investigating commissioner determines that probable cause exists and the unlawful discriminatory practice is not eliminated by conciliation, the investigating commissioner shall call for a public hearing.

(f) The investigating commissioner shall issue any subpoenas required for a full and fair hearing.

Source. #6686, eff 2-5-98, EXPIRED: 2-5-06

New. #8589, INTERIM, eff 3-18-06, EXPIRED: 9-14-06

New. (See Revision Note at chapter heading for Hum 200) #8814, eff 2-3-07, EXPIRED: 2-3-15

Hum 210.02 Temporary Injunctive Relief. If the investigating commissioner, after determining that probable cause exists, further determines that the complainant is likely to suffer irreparable harm before the commission's final disposition of the complaint, he or she shall request the attorney general to seek temporary injunctive relief.

Source. #6686, eff 2-5-98, EXPIRED: 2-5-06

New. #8589, INTERIM, eff 3-18-06, EXPIRED: 9-14-06

New. (See Revision Note at chapter heading for Hum 200) #8814, eff 2-3-07, EXPIRED: 2-3-15

Hum 210.03 Reconsideration of Determination of Probable Cause or of No Probable Cause.

(a) Any party seeking a reconsideration of a determination of probable cause or of no probable cause shall:

(1) File a motion within 30 days of the date on the letter notifying the party of the determination, including:

a. A request for reconsideration;

b. The grounds for the request;

c. A statement of compliance with (2) and (3) below; and

d. Any memorandum the party wishes to submit;

(2) Forward the motion to all other parties; and

(3) Seek concurrence from all other parties.

(b) All other parties shall have the right to object to the motion within 10 days of its receipt.

(c) The motion shall be submitted to the investigating commissioner, unless it states as reason for the reconsideration that the investigating commissioner or commission staff had a bias or conflict of interest which:

(1) Might have prevented a fair and unbiased decision; and

(2) Resulted in actual harm.

(d) In the absence of the special circumstances described in (c) above, the investigating commissioner shall grant the motion within 30 days if:

(1) There exists new and material evidence of which the proponent of the motion was unaware and which the proponent could not with due diligence have uncovered; or

(2) The determination was based on mistake of fact or law.

(e) Under the special circumstances described in (c) above:

(1) The motion shall be submitted to the commission chair; and

(2) The commission chair shall:

a. Determine whether the alleged bias or conflict of interest exits; and

b. If it exists, appoint a new investigating commissioner to make a new determination of probable cause or no probable cause.

Source. (See Revision Note at chapter heading for Hum 200) #8814, eff 2-3-07, EXPIRED: 2-3-15

PART Hum 211 CONCILIATION

Hum 211.01 Conduct of Conciliation Negotiation. Conciliation negotiations shall be conducted by the investigating commissioner or by commission staff under the supervision of the investigating commissioner.

Source. #6686, eff 2-5-98, EXPIRED: 2-5-06

New. #8589, INTERIM, eff 3-18-06, EXPIRED: 9-14-06

New. (See Revision Note at chapter heading for Hum 200) #8814, eff 2-3-07, EXPIRED: 2-3-15

Hum 211.02 Conciliation Agreement.

(a) If the parties come to an agreement as a result of conciliation, a written conciliation agreement shall be drafted and then signed by the director and the parties.

(b) The written conciliation agreement shall include the following:

(1) The negotiated terms of the agreement, including the dollar amounts of any payments to be made under it;

(2) A statement that:

a. The agreement is a full and complete settlement of the charges filed by the complainant;

b. The commission is a party to the agreement;

c. The agreement may be used as evidence in a subsequent proceeding in which any of the parties allege a breach of the agreement; and

d. The commission's participation does not reflect a judgment by the commission on the merits of the case; and

(3) Such other provisions as the parties negotiate.

(c) If the written conciliation agreement provides that the terms of the agreement it documents shall be confidential, neither the commissioners nor commission staff shall disclose the terms of the agreement.

Source. #6686, eff 2-5-98, EXPIRED: 2-5-06

New. #8589, INTERIM, eff 3-18-06, EXPIRED: 9-14-06

New. (See Revision Note at chapter heading for Hum 200) #8814, eff 2-3-07, EXPIRED: 2-3-15

Hum 211.03 Closing Case after Conciliation. The case shall be closed when:

(a) The conciliation agreement has been signed by the parties and the director;

and

(b) Any payments or attachments specified in the agreement have been received by the party entitled to them.

Source. #6686, eff 2-5-98, EXPIRED: 2-5-06

New. #8589, INTERIM, eff 3-18-06, EXPIRED: 9-14-06

New. (See Revision Note at chapter heading for Hum 200) #8814, eff 2-3-07, EXPIRED: 2-3-15

PART Hum 212 ADMINISTRATIVE CASE CLOSURES

Hum 212.01 Administrative Case Closure. The commission shall close a case administratively when:

(a) The complainant or the complainant's attorney withdraws the complaint and the complaint is not reinstituted pursuant to Hum 214.02;

(b) The director determines that a complaint is, on its face, outside the jurisdiction of the commission;

(c) The investigating commissioner determines, on the basis of information obtained during investigation, that the complaint is outside the jurisdiction of the commission;

(d) The investigating commissioner determines that:

(1) The respondent is bankrupt or insolvent;

(2) There is no appropriate successor in interest; and

(3) Further proceedings would be futile;

(e) The complainant fails to proceed by:

(1) Failing to appear, in person or by his or her attorney, for 2 scheduled appointments without requesting a postponement and rescheduling of the appointments by a written motion complying with Hum 220.02; or

(2) Failing to answer, in person or through his or her attorney, a certified letter warning of impending case closure;

(f) The investigator is unable, in spite of repeated attempts, to locate the complainant:

(1) By mail at the most recent address provided by the complainant;

(2) By telephone call made to the telephone number most recently provided by the complainant; and

(3) By contacting the complainant's attorney;

(g) The case has been filed in State court or the complainant has notified the commission in writing of his or her intent to file a civil action in State court;

(h) The case has been removed to superior court by one of the parties in accordance with Hum 203;

(i) The complaint was dually filed, the complainant has requested that the investigation and processing of the case be transferred to a federal agency and the federal agency has agreed that the director may transfer it; or

(j) The complaint was dually filed and the director has transferred the investigation and processing of the case to a federal agency because of a conflict of interest or inadequate resources.

Source. #6686, eff 2-5-98, EXPIRED: 2-5-06

New. #8589, INTERIM, eff 3-18-06, EXPIRED: 9-14-06

New. (See Revision Note at chapter heading for Hum 200) #8814, eff 2-3-07, EXPIRED: 2-3-15

Hum 212.02 Closure of Cases Filed In Federal or State Court; Commission's Receipt of Notice of Complainant's Request for Notice of Right to Sue.

(a) Whenever a complainant whose case is pending before the commission files suit in federal or state court on the basis of the same facts and legal theory as are before the commission, the director shall close the case before the commission pursuant to RSA 354-A:25.

(b) In employment discrimination cases which are covered by Title VII of the Civil Rights Act of 1964 or the Americans with Disabilities Act, the commission shall close the case upon receiving notice that the complainant has requested a notice of right to sue from the U.S. Equal Employment Opportunity Commission.

Source. #6686, eff 2-5-98, EXPIRED: 2-5-06

New. #8589, INTERIM, eff 3-18-06, EXPIRED: 9-14-06

New. (See Revision Note at chapter heading for Hum 200) #8814, eff 2-3-07, EXPIRED: 2-3-15

PART Hum 213 REOPENING CASES ADMINISTRATIVELY CLOSED

Hum 213.01 Moving to Reopen.

(a) Any party wishing to reopen a case administratively closed pursuant to Hum 212.01(b) through (h) shall:

(1) File a motion within 30 days of receipt of the closure letter including:

a. A request to reopen;

b. The grounds for the request;

c. A statement of compliance with (2) and (3) below; and

d. Any memorandum the party wishes to submit;

(2) Forward the motion to all other parties; and

(3) Seek concurrence from all other parties.

(b) All other parties shall have the right to object to the motion within 10 days of its receipt.

(c) With respect to motions to reopen cases closed pursuant to Hum 212.01(b), (c) or (d), the investigating commissioner shall grant the motion if:

(1) There exists new and material evidence indicating that the case was improvidently closed; or

(2) The case was closed because of mistake of fact or law.

(d) With respect to motions to reopen cases closed pursuant to Hum 212.01(e) or (f), the investigating commissioner shall grant the motion if:

(1) There exists new and material evidence indicating that the case was improvidently closed;

(2) The case was closed because of mistake of fact or law; or

(3) The complainant failed to proceed or could not be reached because of:

a. Retaliation or the threat of retaliation based on having filed the complaint;

b. Harassment based on having filed the complaint; or

c. Any other improper pressure put on the complainant because of the filing of the complaint.

(e) With respect to motions to reopen cases closed pursuant to Hum 212.01(g) or (h), the investigating commissioner shall grant the motion if the case has been dismissed by the court on non-substantive grounds not binding upon the commission.

Source. #6686, eff 2-5-98, EXPIRED: 2-5-06

New. #8589, INTERIM, eff 3-18-06, EXPIRED: 9-14-06

New. (See Revision Note at chapter heading for Hum 200) #8814, eff 2-3-07, EXPIRED: 2-3-15

PART Hum 214 WITHDRAWAL OF COMPLAINTS; REINSTITUTION OF WITHDRAWN COMPLAINTS

Hum 214.01 Withdrawal of Complaint.

(a) A complaint may be withdrawn by the complainant or the complainant's attorney at any time by completing the appropriate form chosen from the following:

(1) The withdrawal form, further described in Hum 215.01, for complaints brought pursuant to RSA 354-A only and on file only with the commission;

(2) The withdrawal form, further described in Hum 215.02, for complaints brought pursuant to RSA 354-A and Title VII of the Civil Rights Act of 1964 and on file with both the commission and the U.S. Equal Opportunity Commission;

(3) The withdrawal form, further described in Hum 215.03, for complaints brought pursuant to RSA 354-A and the Age Discrimination in Employment Act and on file with both the commission and the U.S. Equal Opportunity Commission;

(4) The withdrawal form, further described in Hum 215.04, for complaints brought pursuant to RSA 354-A and the Americans with Disabilities Act and on file with both the commission and the U.S. Equal Opportunity Commission; and

(5) The withdrawal form, further described in Hum 215.05, for complaints brought pursuant to RSA 354-A, Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act and on file with both the commission and the U.S. Equal Opportunity Commission.

(b) The forms completed in accordance with (a) above shall be signed by the complainant or the complainant's attorney.

(c) Withdrawal of a complaint shall be with prejudice, except when the complaint is reinstituted in accordance with Hum 214.02.

Source. #6686, eff 2-5-98, EXPIRED: 2-5-06

New. #8589, INTERIM, eff 3-18-06, EXPIRED: 9-14-06

New. (See Revision Note at chapter heading for Hum 200) #8814, eff 2-3-07, EXPIRED: 2-3-15

Hum 214.02 Reinstitution of Withdrawn Complaints.

(a) A complainant wishing to reinstitute a complaint shall:

(1) File a written motion stating:

a. The request to reinstate the complaint;

b. The reasons for the request; and

b. Compliance with (2) and (3) below;

(2) Forward a copy of the motion to all other parties; and

(3) Seek concurrence from all other parties.

(b) All other parties shall have the right to object to the motion within 10 days of its receipt.

(d) Good cause for reinstituting a complaint shall include:

(1) Intimidation, harassment or coercion of the complainant;

(2) Retaliation against the complainant;

(3) Failure of the respondent to comply with the terms of an agreement requiring the complainant to withdraw the complaint;

(4) Indication(s) that the complainant did not knowingly and voluntarily withdraw the complaint; or

(5) Any other indication(s) that justice was not served by the administrative closing of the case.

(e) Reinstitution of a complaint on file with a federal agency shall not affect the status of the complaint at the federal agency.

Source. (See Revision Note at chapter heading for Hum 200) #8814, eff 2-3-07, EXPIRED: 2-3-15

PART Hum 215 COMPLAINT WITHDRAWAL FORMS

Hum 215.01 Withdrawal of Complaints Pursuant to RSA 354-A Only.

(a) A complainant withdrawing a complaint made pursuant to RSA 354-A only shall complete a form calling for:

(1) Written statement of the reason(s) for the withdrawal; and

(2) The date and the signature of the complainant or the complainant's attorney.

(b) The effect of the signature on the form shall be:

(1) The complainant's acknowledgement that he or she is aware that the commission protects the right to file a complaint;

(2) The complainant's averment that he or she has been advised that it is unlawful for any person covered by RSA 354-A to retaliate against him or her for the filing of the complaint;

(3) The complainant's averment that he or she has been advised that it is unlawful for any person covered by the enabling legislation of the commission to threaten, intimidate or harass him or her because of the filing of the complaint;

(4) The complainant's assertion that he or she has not been forced to request the withdrawal; and

(5) The complainant's statement that he or she wishes to withdraw the complaint.

Source. #6686, eff 2-5-98, EXPIRED: 2-5-06

New. #8589, INTERIM, eff 3-18-06, EXPIRED: 9-14-06

New. (See Revision Note at chapter heading for Hum 200) #8814, eff 2-3-07, EXPIRED: 2-3-15

Hum 215.02 Withdrawal of Employment Discrimination Complaints Dually Filed with the Commission and the EEOC.

(a) A complainant withdrawing a complaint under RSA 354-A and Title VII of the Civil Rights Act of 1964, dually filed with the commission and the EEOC, shall complete a form calling for:

(1) A written statement of the reason(s) for the withdrawal; and

(2) The date and the signature of the complainant or the complainant's attorney in a space provided beneath a preprinted statement that the complainant wishes to withdraw his or her complaint filed with the commission; and

(3) The date and the signature of the complainant or the complainant's attorney in a space provided beneath a preprinted statement that the complainant wishes to withdraw his or her complaint filed with the EEOC.

(b) The effect of the signatures on the form shall be:

(1) The complainant's acknowledgement that he or she is aware that the commission and the EEOC protect the right to file a complaint;

(2) The complainant's averment that he or she has been advised that it is unlawful for any person covered by RSA 354-A or Title VII of the Civil Rights Act of 1964 to retaliate against him or her for the filing of the complaint;

(4) The complainant's assertion that he or she has not been forced to request the withdrawal; and

(5) The complainant's statement that he or she wishes to withdraw the complaint filed with the commission and the complaint filed with the EEOC.

Source. #6686, eff 2-5-98, EXPIRED: 2-5-06

New. #8589, INTERIM, eff 3-18-06, EXPIRED: 9-14-06

New. (See Revision Note at chapter heading for Hum 200) #8814, eff 2-3-07, EXPIRED: 2-3-15

Hum 215.03 Withdrawal of Complaints of Employment Discrimination on the Basis of Age Dually Filed with the Commission and the EEOC.

(a) A complainant withdrawing a complaint under RSA 354-A and the Age Discrimination in Employment Act, dually filed with the commission and the EEOC, shall complete a form calling for:

(1) A written statement of the reason(s) for the withdrawal; and

(b) The effect of the signatures on the form shall be:

(1) The complainant's acknowledgement that he or she is aware that the commission and the EEOC protect the right to file a complaint;

(2) The complainant's averment that he or she has been advised that it is unlawful for any person covered by RSA 354-A or the Age Discrimination in Employment Act to retaliate against him or her for the filing of the complaint;

(4) The complainant's assertion that he or she has not been forced to request the withdrawal; and

(5) The complainant's statement that he or she wishes to withdraw the complaint filed with the commission and the complaint filed with the EEOC.

Source. #6686, eff 2-5-98, EXPIRED: 2-5-06

New. #8589, INTERIM, eff 3-18-06, EXPIRED: 9-14-06

New. (See Revision Note at chapter heading for Hum 200) #8814, eff 2-3-07, EXPIRED: 2-3-15

Hum 215.04 Withdrawal of Complaints of Discrimination on the Basis of Disability Dually Filed with the Commission and the EEOC.

(a) A complainant withdrawing a complaint under RSA 354-A and the Americans with Disabilities Act, dually filed with the commission and the EEOC, shall complete a form calling for:

(1) A written statement of the reason(s) for the withdrawal; and

(b) The effect of the signatures on the form shall be:

(1) The complainant's acknowledgement that he or she is aware that the commission and the EEOC protect the right to file a complaint;

(2) The complainant's averment that he or she has been advised that it is unlawful for any person covered by RSA 354-A or the Americans with Disabilities Act to retaliate against him or her for the filing of the complaint;

(4) The complainant's assertion that he or she has not been forced to request the withdrawal; and

(5) The complainant's statement that he or she wishes to withdraw the complaint filed with the commission and the complaint filed with the EEOC.

Source. (See Revision Note at chapter heading for Hum 200) #8814, eff 2-3-07, EXPIRED: 2-3-15

Hum 215.05 Withdrawal of Complaints Brought Pursuant to RSA 354-A, Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act Dually Filed with the Commission and the EEOC.

(a) A complainant withdrawing a complaint under RSA 354-A, Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act, dually filed with the commission and the EEOC, shall complete a form calling for:

(1) A written statement of the reason(s) for the withdrawal; and

(b) The effect of the signatures on the form shall be:

(1) The complainant's acknowledgement that he or she is aware tat the commission and the EEOC protect the right to file a complaint;

(2) The complainant's averment that he or she has been advised that it is unlawful for any person covered by RSA 354-A, Title VII of the Civil Rights Act of 1964 or the Age Discrimination in Employment Act to retaliate against him or her for the filing of the complaint;

(4) The complainant's assertion that he or she has not been forced to request the withdrawal; and

(5) The complainant's statement that he or she wishes to withdraw the complaint filed with the commission and the complaint filed with the EEOC.

Source. (See Revision Note at chapter heading for Hum 200) #8814, eff 2-3-07, EXPIRED: 2-3-15

PART Hum 216 MOTIONS

Hum 216.01 Default Rule Governing Motions.

(a) Unless governed by other more specific rules in this chapter, requests for actions to be taken by the investigating commissioner shall be made by motions meeting the requirements of (b) below.

(b) Motions shall:

(1) Be in writing and signed by the proponent or the attorney for the proponent;

(2) State with specificity the grounds thereof;

(3) State the relief sought;

(4) State compliance with (c) below on seeking concurrence;

(5) Be copied to all other parties; and

(6) State that a copy was sent to all other parties.

(c) The moving party shall make a good-faith attempt to obtain concurrence from opposing parties in the relief sought, except in the case of motions in which it can reasonably be assumed that the proponent will be unable to obtain concurrence.

(d) Supporting memoranda, documents and copies of any cited court cases shall be filed with the motion, unless a continuance for a later filing has been sought and granted by the investigating commissioner.

Source. #6686, eff 2-5-98, EXPIRED: 2-5-06

New. #8589, INTERIM, eff 3-18-06, EXPIRED: 9-14-06

New. (See Revision Note at chapter heading for Hum 200) #8814, eff 2-3-07, EXPIRED: 2-3-15

Hum 216.02 Objections to Motions.

(a) An objection to a motion filed pursuant to Hum 216.01 shall be filed within 10 days after the motion was filed.

(b) Supporting memoranda, documents and copies of any cited court cases shall be filed with the objection, unless a continuance for a later filing has been sought and granted by the investigating commissioner.

Source. (See Revision Note at chapter heading for Hum 200) #8814, eff 2-3-07, EXPIRED: 2-3-15

Hum 216.03 Decisions on Motions. Motions shall be decided by the investigating commissioner without an oral hearing, provided that an oral hearing shall take place under the following circumstances:

(a) When scheduled at the commission's own initiative; or

(b) Upon a party's request when the investigating commissioner determines that an oral hearing will materially assist him or her in ruling on the motion or is required to comply with law.

Source. (See Revision Note at chapter heading for Hum 200) #8814, eff 2-3-07, EXPIRED: 2-3-15

PART Hum 217 DEPOSITIONS

Hum 217.01 Depositions by Agreement.

(a) The parties may take depositions by agreement, provided that:

(1) Depositions are limited to 3 individuals chosen by each party; or

(2) Additional depositions are permitted by the investigating commissioner pursuant to (b) below.

(b) Additional depositions shall be:

(1) Sought by motions subject to the motion rules in Hum 216; and

(2) Approved by the investigating commissioner on the determination that they are necessary for a true and full disclosure of the relevant facts.

Source. #6686, eff 2-5-98, EXPIRED: 2-5-06

New. #8589, INTERIM, eff 3-18-06, EXPIRED: 9-14-06

New. (See Revision Note at chapter heading for Hum 200) #8814, eff 2-3-07, EXPIRED: 2-3-15

Hum 217.02 Motions for Depositions.

(a) In the absence of an agreement to take a deposition, the party objecting to a deposition being sought shall request relief from the investigating commissioner by filing a motion subject to the motion rules in Hum 216.

(b) The investigating commissioner shall grant the motion for relief if he or she determines that the intended deposition:

(1) Would not lead to the discovery of relevant and admissible evidence; or

(2) Is intended to:

a. Harass the objecting party;

b. Retaliate against the objecting party; or

c. Unnecessarily delay the proceedings.

Source. #6686, eff 2-5-98, EXPIRED: 2-5-06

New. #8589, INTERIM, eff 3-18-06, EXPIRED: 9-14-06

New. (See Revision Note at chapter heading for Hum 200) #8814, eff 2-3-07, EXPIRED: 2-3-15

Hum 217.03 Payment of Cost of Depositions. The party requesting a deposition, or receiving the investigating commissioner's approval to take a deposition, shall:

(a) Pay the cost of the deposition; and

(b) Provide a copy of the deposition transcript to the opposing party(ies) and to the commission.

Source. #6686, eff 2-5-98, EXPIRED: 2-5-06

New. #8589, INTERIM, eff 3-18-06, EXPIRED: 9-14-06

New. (See Revision Note at chapter heading for Hum 200) #8814, eff 2-3-07, EXPIRED: 2-3-15

PART Hum 218 INTERROGATORIES

Hum 218.01 Interrogatories and Answers to Interrogatories.

(a) A party may serve no more than 20 interrogatories on any opposing party.

(b) Interrogatories shall be mailed by certified mail, return receipt requested.

(1) Verified; and

(2) Returned to the party serving the interrogatories and to the investigator:

a. Within 30 days of receipt of the interrogatories; and

b. By certified mail, return receipt requested.

Source. (See Revision Note at chapter heading for Hum 200) #8814, eff 2-3-07, EXPIRED: 2-3-15

Hum 218.02 Objections to Interrogatories; Failure to Respond to Interrogatories.

(a) If a party served with interrogatories wishes to object to any of them, the party shall:

(1) File a statement of objection within 10 days of receipt of the interrogatories;

(2) Include in the statement of objection the reason(s) for the objection; and

(3) At the time of filing with the commission, furnish a copy of the statement of objection to the party serving the interrogatories.

(b) The investigating commissioner shall require challenged interrogatories to be answered unless he or she determines that:

(1) The information sought can be more conveniently provided in an alternative format or by different means;

(2) The cost of producing the information sought outweighs its likely usefulness or relevance in deciding the issue(s) in the case;

(3) The challenged interrogatories will not lead to the discovery of admissible and relevant evidence;

(4) The challenged interrogatories are intended to harass the party served with them; or

(5) The challenged interrogatories are intended to cause unnecessary delay in the proceedings.

(1) Establish a deadline for the answer(s) no later than 2 weeks before the date the investigator anticipates the investigation will be completed; and

(2) Include notice to the party served with the interrogatories that failure to answer them by the deadline might prevent such party from testifying to or otherwise presenting the information sought during any public adjudicative hearing which might take place, unless such party is called by an opposing party.

Source. (See Revision Note at chapter heading for Hum 200) #8814, eff 2-3-07, EXPIRED: 2-3-15

PART Hum 219 ACCESS TO INVESTIGATIVE FILES PRIOR TO ISSUANCE OF NOTICE OF PUBLIC HEARING; CONFIDENTIALITY

Hum 219.01 Access to Investigative Files by Parties.

(a) Prior to the issuance of a notice of public hearing, parties and their attorneys shall have access to all information and documents contained in the case investigative file except those considered confidential pursuant to (b) below.

(b) The following shall be considered confidential:

(1) Names of witnesses, unless a witness has consented in writing to the release of his or her name to both parties;

(2) Statements of witnesses, unless a witness has consented in writing to the release of his or her statement to both parties;

(3) Personnel files and personal wage and salary information relating to persons other than the complainant, unless the person who is the subject of the personnel files or information has consented in writing to the release of such information to both parties;

(4) Information in the nature of a trade secret;

(5) Information or documents with regard to which a party has requested confidentiality and said request has been approved by the director, applying RSA 91-A:5;

(6) Pursuant to RSA 91-A:5:

a. Confidential, commercial and financial information;

b. Test questions, scoring keys and other examination data used to administer a licensing examination, examination for employment or academic examination;

c. Personnel, medical, welfare, library user and other files whose disclosure would constitute an invasion of privacy; and

c. Other information protected as confidential by RSA 91-A:5; and

(7) Notes and internal memoranda written by commission staff or commissioners.

Source. (See Revision Note at chapter heading for Hum 200) #8814, eff 2-3-07, EXPIRED: 2-3-15

Hum 219.02 Requests by Parties for Photocopies.

(a) Upon request, parties may obtain copies of materials in the investigative file which are not confidential.

(b) The commission shall not charge a fee for 25 or fewer pages.

Source. (See Revision Note at chapter heading for Hum 200) #8814, eff 2-3-07, EXPIRED: 2-3-15

Hum 219.03 Information Available to State and Federal Agencies.

(a) All information and documents contained in an investigative file shall be made available to the U.S. Equal Employment Opportunity Commission and the U.S. Department of Housing and Urban Development if the complaint has been filed with both the commission and the federal agency.

(b) Information regarding a discrimination case shall be made available to other state or federal agencies when such state or federal agencies have established a need to know.

(1) Need for information for federal investigations of alleged civil rights violations;

(2) Need for information to determine qualifications of government contractors; or

(3) Information sought by subpoena or court order.

Source. (See Revision Note at chapter heading for Hum 200) #8814, eff 2-3-07, EXPIRED: 2-3-15

Hum 219.04 Information Disclosed to the Public.

(a) No information regarding complaints filed, investigation of complaints, pre-determination settlement negotiations, or conciliation negotiations shall be disclosed to the public by any commissioner or staff member prior to issuance of a notice of public hearing after a finding of probable cause.

(b) Pursuant to RSA 354-A:21, II(a), the commission shall publish the facts in a case which has been closed when it determines that to do so would serve to inform the public of the commission's operations, jurisdiction and remedies.

Source. (See Revision Note at chapter heading for Hum 200) #8814, eff 2-3-07, EXPIRED: 2-3-15

PART Hum 220 SCHEDULING AND CONTINUANCES

Hum 220.01 Scheduling.

(a) After a complaint is filed, commission staff shall establish deadline(s) for submission by the parties of the statements and documents described in Hum 207.01 and Hum 207.02.

(b) The deadline(s) established pursuant to (a) above shall be within 6 weeks of the date(s) of the request(s) for the statements and documents.

(c) The investigator shall schedule all interviews with parties and witnesses and the submission of additional information and documents during the investigation.

Source. (See Revision Note at chapter heading for Hum 200) #8814, eff 2-3-07, EXPIRED: 2-3-15

Hum 220.02 Motions for Postponement and Rescheduling.

(a) The parties may request by oral or written motion that a deadline for the submission of documents or a scheduled date for an interview or a conference be postponed and rescheduled for good cause as further described in Hum 220.03(b).

(b) Parties requesting such postponement and rescheduling by either oral or written motion shall make a good-faith attempt to obtain concurrence in the motion from the opposing party.

(1) Be filed not later than 15 days prior to the originally scheduled deadline or date;

(2) Describe with specificity the matter to be postponed and the originally scheduled deadline or date;

(3) State the rescheduled deadline or date requested by the proponent;

(4) State with specificity the reason for the request for postponement and rescheduling;

(5) State compliance with the requirement to seek concurrence set forth in (b) above;

(6) Be signed;

(7) Be copied to all other parties;

(8) State that a copy was sent to all other parties; and

(9) Be accompanied by memoranda, documents and copies of cited court opinion, if they are necessary to support the motion, unless a postponement has been granted for a later filing of such materials.

(d) Objections to written motions for postponement and rescheduling shall be filed within 10 days of the filing date of the motion.

(e) Oral motions for postponement and rescheduling shall state with specificity:

(1) The matter to be postponed and the originally scheduled deadline or date;

(2) The rescheduled deadline or date requested by the proponent; and

(3) The reason for the request for postponement and rescheduling.

Source. (See Revision Note at chapter heading for Hum 200) #8814, eff 2-3-07, EXPIRED: 2-3-15

Hum 220.03 Decisions on Motions for Postponements and Rescheduling.

(a) The investigator shall grant motions to postpone and reschedule a deadline for the submission of documents or a scheduled date for an interview or a conference for good cause as set forth in (b) below.

(b) Good cause for postponement and rescheduling of a deadline for submission of documents, or a date for an interview or a conference shall be:

(1) Illness or injury which prevents a party or witness from:

a. Preparing documents;

b. Preparing for an interview or a conference; or

c. Attending an interview or conference;

(2) A scheduled hearing in another tribunal which:

a. Requires the attendance of the party or the party's attorney and for which there is nobody who could reasonably substitute for the party or the party's attorney;

b. Can not be postponed; and

c. Prevents:

1. The timely preparation of documents;

2. Preparation for an interview or conference; or

3. Attendance at an interview or conference;

(3) Temporary unavailability of required material, despite the due diligence of the party responsible for its production;

(4) Severely inclement weather; or

(5) Such other reasons beyond the control of a party or the commission that warrant a postponement and rescheduling to serve justice and efficiency.

Source. (See Revision Note at chapter heading for Hum 200) #8814, eff 2-3-07, EXPIRED: 2-3-15

PART Hum 221 WAIVER OF RULES

Hum 221.01 Motions for Waiver of Rules.

(a) Any person wishing a waiver of one or more rules in this chapter shall request such a waiver by:

(1) Submitting a written motion complying with (b) below; or

(2) If time is insufficient for the submission of a written motion and of objections thereto, making an oral motion stating:

a. The rule to be waived;

b. The purpose of the waiver request; and

c. The likely impact on all parties of the requested waiver.

(b) A written motion for waiver of a rule shall:

(1) Be filed not later than 15 days prior to the anticipated application of the rule to be waived;

(2) Be addressed to the investigating commissioner or staff person who is responsible for applying the rule to be waived;

(3) Be provided to all other parties together with a request for concurrence;

(4) Recite the rule to be waived;

(5) State the purpose of the waiver request;

(6) State the likely impact on all parties of the requested waiver;

(7) State compliance with the requirement to seek concurrence; and

(8) If thought necessary by its proponent, be accompanied by memoranda, documents and copies of cited court opinion.

Source. (See Revision Note at chapter heading for Hum 200) #8814, eff 2-3-07, EXPIRED: 2-3-15

Hum 221.02 Decisions on Motions for Waiver of Rules. The investigating commissioner or staff person who is responsible for applying the rule to be waived shall waive the rule if the waiver:

(a) Appears to be lawful; and

(b) Is more likely to promote the fair and accurate management of the matter than would adherence to the particular requirement or limitation set by the rule.

Source. (See Revision Note at chapter heading for Hum 200) #8814, eff 2-3-07, EXPIRED: 2-3-15

CHAPTER Hum 300 PUBLIC ADJUDICATIVE HEARINGS AND OTHER PRACTICES AND PROCEDURES

The former Hum 300 entitled “Discrimination in Housing” expired 9-14-06 as an interim rule under Document #8589. The filings of the Human Rights Commission affecting the former Hum 300 include the following documents:

#2196, eff 11-30-82

#2906, eff 11-15-84, EXPIRED 11-15-90

#6687, eff 2-5-98, EXPIRED 2-5-06

#8589, INTERIM, eff 3-18-06, EXPIRED 9-14-06

Document #8815-A, effective 2-3-07, adopted Parts Hum 301 through Hum 320 in Chapter Hum 300 entitled “Public Adjudicative Hearings and Other Practices and Procedures.” Document #8815-A, together with Document #8814 which adopted Hum 200 entitled “Proceedings Prior to Public Adjudicative Hearing”, made extensive changes to the wording, format, and numbering in the former Hum 200 entitled “Rules of Practice and Procedure”. The former Hum 200 had expired 9-14-06 as an interim rule under Document #8589. See Revision Note for Hum 200. Hum 301 through Hum 320 in Document # 8815-A will not expire except pursuant to RSA 541-A:17, II.

Document #8815-B, effective 2-3-07, adopted Part Hum 321 entitled “Explanation of Adopted Rules” in Chapter Hum 300. Hum 321 under Document #8815-B had not been in effect before. The rules in Hum 321 will expire on 2-3-15 unless readopted, amended, or repealed before that.

PART Hum 301 DEFINITIONS

Hum 301.01 Definitions.

(a) “Appearance" means a written notification to the commission that counsel for a party, intervenor or witness intends to actively participate in a public adjudicative hearing.

(b) "Complaint" means a written verified statement charging illegal discrimination under RSA 354-A.

(d) “Declaratory ruling" means, pursuant to RSA 541-A:1, V, a ruling by the commission as to the specific applicability of any statutory provision or of any rule or order of the commission.

(e) "Determination of probable cause" means a determination made after investigation that there is sufficient evidence upon which a fact finder could form a reasonable belief that the respondent(s) committed one or more unlawful practices.

(f) "Director" means the executive director of the New Hampshire commission for human rights.

(g) "Filed" means received by the commission at its offices.

(h) "Hearing commissioners" means the 3 commissioners designated by the chair of the commission to sit as a panel at a public adjudicative hearing.

(i) "Motion" means a request to the presiding officer for an order or ruling directing some act to be done in favor of the proponent of the motion, including a statement of justification or reasons for the request.

(j) "Order" means, pursuant to RSA 541-A:1, XI, the whole or part of the commission's final disposition of a matter other than a rule, but not including the commission's decision to initiate, postpone, investigate or process any matter or to issue a complaint or citation.

(k) "Parties" means the complainant and one or more respondents.

(l) "Presiding officer" means the individual whom the chair of the commission has designated as the chair of the panel of 3 hearing commissioners.

(m) "Pro hac vice representation" means representation at the commission in a particular case only by an attorney not licensed to practice in New Hampshire.

(n) "Proof by a preponderance of the evidence" means a demonstration by admissible evidence that a fact or legal conclusion is more probably true than not.

(o) “Public comment hearing” means a proceeding held pursuant to RSA 541-A:11.

(p) "Respondent" means one or more of the following against which a complaint of discrimination has been filed:

(1) A natural person;

(2) A corporation;

(3) An unincorporated association;

(4) An organization;

(5) A partnership;

(6) A limited liability company;

(7) A professional corporation;

(8) A business; and

(9) A unit of state or local government.

(q) "Record" means the materials set forth in RSA 541-A:31, VI.

(r) “Rulemaking petition” means a petition made pursuant to RSA 541-A:4, I.

(s) "Verified" means signed, and sworn or affirmed, before a notary public or justice of the peace.

Source. #6687, eff 2-5-98, EXPIRED: 2-5-06

New. #8589, INTERIM, eff 3-18-06, EXPIRED: 9-14-06

New. (See Revision Note at chapter heading for Hum 300) #8815-A, eff 2-3-07

PART Hum 302 SCOPE

Hum 302.01 Scope. The rules of this chapter shall apply to public adjudicative hearings scheduled after a determination of probable cause which:

(1) Has not been altered upon reconsideration pursuant to Hum 210.03; and

(2) Has not been resolved through conciliation pursuant to Hum 211.

Source. #6687, eff 2-5-98, EXPIRED: 2-5-06

New. #8589, INTERIM, eff 3-18-06, EXPIRED: 9-14-06

New. (See Revision Note at chapter heading for Hum 300) #8815-A, eff 2-3-07

PART Hum 303 REPRESENTATION BY ATTORNEY; APPEARANCES

Hum 303.01 Attorney Representation of Clients in Public Adjudicative Hearings.

(a) An attorney who is an active member in good standing of the Bar of New Hampshire may represent a client at a public adjudicative hearing by:

(1) Participating in the hearing and pre-hearing conference(s);

(2) Signing documents on behalf of his or her client, except as otherwise provided in these rules; and

(3) Filing documents.

(b) An attorney who is not a member of the Bar of New Hampshire shall be similarly eligible to represent a client if:

(1) Approved by the commission pursuant to Hum 204.04 to represent his or her client pro hac vice; and

(2) Accompanied at all hearings, conferences and meetings by the New Hampshire attorney who has filed the appearance called for by Hum 204.02(a)(2)a. or Hum 204.02(b)(2), as applicable.

Source. #6687, eff 2-5-98, EXPIRED: 2-5-06

New. #8589, INTERIM, eff 3-18-06, EXPIRED: 9-14-06

New. (See Revision Note at chapter heading for Hum 300) #8815-A, eff 2-3-07

Hum 303.02 Appearances Required; Service Upon Attorneys.

(a) An attorney representing a party or other person before the commission at a public adjudicative hearing shall file a written notice of appearance.

(b) An attorney who ceases a representation for which the attorney has filed a written notice of appearance shall immediately file a written notice of withdrawal of appearance.

(c) When a party or other person or entity is represented by an attorney who has filed a written notice of appearance, service upon the attorney shall be deemed valid service upon the person or entity represented, unless the attorney has timely filed a written notice of withdrawal of appearance.

Source. #6687, eff 2-5-98, EXPIRED: 2-5-06

New. #8589, INTERIM, eff 3-18-06, EXPIRED: 9-14-06

New. (See Revision Note at chapter heading for Hum 300) #8815-A, eff 2-3-07

Hum 303.03 Pro Hac Vice Representation. Pro hac vice representation shall be in accordance with the provisions regarding such representation set forth in Hum 204.02, Hum 204.03 and Hum 204.04.

Source. (See Revision Note at chapter heading for Hum 300) #8815-A, eff 2-3-07

PART Hum 304 ROLES OF THE COMMISSION CHAIR AND THE PRESIDING OFFICER; COMPUTATION OF TIME PERIODS; ACCESS TO THE COMMISSION'S FILE

Hum 304.01 Role of the Chair of the Commission. The chair of the commission shall:

(a) Schedule the public adjudicative hearing;

(b) Designate the hearing commissioners;

(d) Designate a commissioner to act as presiding officer if the person first designated withdraws pursuant to Hum 304.02 (c).

Source. (See Revision Note at chapter heading for Hum 300) #8815-A, eff 2-3-07

Hum 304.02 Roles of the Director and the Presiding Officer.

(a) By decision of the commission pursuant to RSA 354-A:5, III the director shall:

(1) Schedule the pre-hearing conference(s) and preside over them, with the exception of ruling on motions and objections;

(2) Accept the filing of motions and objections at the pre-hearing conference(s);

(3) Preside over the conciliation conference(s); and

(4) Establish deadlines for the filing of final witness lists, final lists of exhibits, and copies of exhibits.

(b) The presiding officer shall:

(1) Rule upon all motions and objections made before or during the public adjudicative hearing;

(2) Admit and exclude testimony or other evidence at the public adjudicative hearing; and

(3) Otherwise control the public adjudicative proceedings.

(1) Has a direct interest in the outcome of the hearing, including but not limited to, a financial or family relationship with any party, witness, attorney for a party or witness or intervenor;

(2) Has made statements or engaged in behavior which objectively demonstrates that he or she has prejudged the facts of the case; or

(3) Personally believes that he or she cannot fairly judge the facts of the case.

Source. (See Revision Note at chapter heading for Hum 300) #8815-A, eff 2-3-07

Hum 304.03 Computation of Time Periods.

(a) Unless otherwise specified, the unit of time for time periods referenced in this chapter shall be calendar days.

(b) Computation of any period of time shall begin with the day after the action or event which sets the time period in motion, and shall include the last day of the period.

(c) If the last day of the period so computed falls on a Saturday, Sunday or a legal holiday, then the time period shall be extended to include the first business day following the Saturday, Sunday or legal holiday.

Source. (See Revision Note at chapter heading for Hum 300) #8815-A, eff 2-3-07

Hum 304.04 Access to File After Issuance of Notice of Public Adjudicative Hearing. After a notice of a public adjudicative hearing has been issued:

(a) The parties and intervenors shall have access to all information and documents in the case file, with the exception of investigation notes and internal memoranda of the commissioners and staff; and

(b) The parties, other participants in the hearing and the public shall have access to the investigative report.

Source. (See Revision Note at chapter heading for Hum 300) #8815-A, eff 2-3-07

PART Hum 305 CONTINUANCES

Hum 305.01 Motions for Continuance and Rescheduling of Deadline or Date.

(a) The parties and other participants in the proceedings may request by motion that a pre-hearing conference, hearing date or other matter be continued and rescheduled for good cause as further described in Hum 305.03.

(b) Proponents of motions for continuance and rescheduling shall make a good-faith attempt to obtain concurrence in the motion from all parties.

(1) Written, signed and filed not later than 15 days before the originally scheduled deadline or date;

(2) Delivered timely to all parties; and

(3) State that timely delivery has been made to all parties.

(d) Oral motions for continuance and rescheduling shall be made when:

(1) Fewer than 15 days remain before the deadline or date sought to be rescheduled; and

(2) The proponent was unable, for reasons beyond the proponent's control, to make the timely written motion required by (c) above.

(e) All motions for continuance and rescheduling shall state with specificity:

(1) The matter to be postponed and the originally scheduled deadline or date;

(2) The rescheduled deadline or date requested by the proponent;

(3) The reason for the request for continuance and rescheduling; and

(4) That a good-faith effort has been made to obtain concurrence to the continuance and rescheduling.

Source. (See Revision Note at chapter heading for Hum 300) #8815-A, eff 2-3-07

Hum 305.02 Objections to Motions for Continuance and Rescheduling. Objections to motions for continuance and rescheduling shall be:

(a) Filed within 10 days of the filing date of the motions objected to, if the motions are in writing; and

(b) Made at once, if the motions are made orally.

Source. (See Revision Note at chapter heading for Hum 300) #8815-A, eff 2-3-07

Hum 305.03 Decisions on Motions for Continuance and Rescheduling.

(a) Motions for continuance and rescheduling shall be granted for good cause, including:

(1) Illness or injury which prevents a party or other participant in the proceedings from timely:

a. Preparing and making required filings;

b. Preparing for a pre-hearing conference or hearing; or

c. Participating in a pre-hearing conference or hearing.

(2) A scheduled hearing in another tribunal which:

a. Requires the attendance of the proponent of the motion or of the attorney for the motion's proponent, for which there is nobody who could reasonably substitute for the proponent or the proponent's attorney;

b. Can not be postponed; and

c. Prevents timely:

1. Preparation and filing of required documents;

2. Preparation for a pre-hearing conference or hearing; or

3. Participation in a pre-hearing conference or hearing;

(3) Temporary unavailability of material required to be filed, despite the due diligence of the party responsible for the filing;

(4) Severely inclement weather; or

(5) Such other reasons beyond the control of the proponent of the motion or the commission that warrant a continuance and rescheduling of the original deadline or date in the interest of justice and efficiency.

Source. (See Revision Note at chapter heading for Hum 300) #8815-A, eff 2-3-07

PART Hum 306 COMMENCEMENT OF PUBLIC ADJUDICATIVE HEARING; PRE-HEARING REQUIREMENTS

Hum 306.01 Commencement of the Proceedings by Notice of Public Adjudicative Hearing.

(a) A written notice of public adjudicative hearing issued to all parties at least 14 days before the scheduled date of the hearing shall commence the proceedings.

(b) Pursuant to RSA 541-A:31, III, the notice shall include:

(1) A statement of the time, place and nature of the hearing;

(2) A statement of the legal authority under which the hearing is to be held;

(3) A reference to the particular sections of the statute and rules involved; and

(4) A short and plain statement of the issues involved.

Source. (See Revision Note at chapter heading for Hum 300) #8815-A, eff 2-3-07

Hum 306.02 Pre-Hearing Conference.

(a) Parties or their counsel shall attend at least one pre-hearing conference.

(b) Matters to be considered at the pre-hearing conference shall include, as appropriate:

(1) Offers of settlement;

(2) Simplification of the issues;

(3) Stipulations or admissions as to issues of fact or proof;

(4) Limitations on the number of witnesses;

(5) Marking of all written exhibits to be presented during the hearing;

(6) Scheduling; and

(7) Any other matters which might increase the efficiency of the proceedings.

Source. (See Revision Note at chapter heading for Hum 300) #8815-A, eff 2-3-07

Hum 306.03 Respondent's Answer to the Complaint Required Before Hearing.

(a) Pursuant to RSA 354-A:21, II(c) the respondent(s) shall submit a verified answer:

(1) Filed in the original with 3 copies not later than 15 days prior to the scheduled date of the hearing; and

(2) Furnished to the complainant or the complainant's attorney by a method that confirms receipt not later than 15 days prior to the scheduled date of the hearing.

(b) The verified answer shall:

(1) Be a previously submitted verified response as described in Hum 207.02(b); or

(2) Contain the following information:

a. The name and address of the respondent;

b. The name and address of the respondent's attorney if the respondent is represented by counsel;

c. For each allegation of the complaint contested by the respondent:

1. A general or specific denial made on information and belief; or

2. A denial of any knowledge or information sufficient to form a belief; and

d. Any affirmative defenses that the respondent wishes to make.

(d) Failure of the respondent(s) to file an answer within the time stated in (a) above shall not prevent the commission from:

(1) Holding the hearing at the time and place specified in the notice of hearing; and

(2) Making its findings and entering its order based upon the testimony taken at the hearing.

Source. (See Revision Note at chapter heading for Hum 300) #8815-A, eff 2-3-07

Hum 306.04 Complainant's Materials Required Before Hearing.

(a) The complainant shall submit a detailed request for relief which shall be:

(1) Filed in the original with 3 copies not later than 15 days on or before the day of the pre-hearing conference;

(2) Furnished to the respondent(s) or the attorney(s) for the respondent(s) by a method that confirms receipt not later than the day of the pre-hearing conference; and

(3) Includes, as applicable, the following information:

a. For requests for back pay:

1. A statement of the wage or salary that would have been earned but for the alleged discrimination;

2. The time period that complainant would have earned this wage or salary but for the alleged discrimination; and

3. A statement detailing all earnings and other income actually received by the complainant during the period covered by the request for back pay; and

b. For requests for compensatory damages:

1. A statement of the amount of damages requested;

2. Any medical or psychological evidence supporting the request;

3. A description of the complainant's pain, suffering, humiliation and/or embarrassment caused by the alleged discriminatory act; and

4. Other factors the complainant wishes the commission to consider.

Source. (See Revision Note at chapter heading for Hum 300) #8815-A, eff 2-3-07

Hum 306.05 Witness Lists, Lists of Exhibits and Exhibits.

(a) At the pre-hearing conference the parties shall file with the director, giving copies to all other parties:

(1) Preliminary lists of witnesses showing names, addresses and telephone numbers;

(2) Preliminary lists of exhibits; and

(3) Copies of exhibits on the preliminary exhibit lists.

(b) By the deadlines established by the director pursuant to Hum 304.02(a), the parties shall file with the commission and deliver to all other parties:

(1) Final lists of witnesses showing names, addresses and telephone numbers;

(2) Final lists of exhibits; and

(3) Copies of exhibits on the final exhibit lists if not already filed with the commission and delivered to all other parties.

Source. (See Revision Note at chapter heading for Hum 300) #8815-A, eff 2-3-07

PART Hum 307 SUBPOENAS

Hum 307.01 Subpoenas for Public Adjudicative Hearing. Any party or other person permitted to participate in a public adjudicative hearing may request subpoenas for the hearing by written motion no later than the date of the pre-hearing conference. Subpoenas shall be issued by the presiding officer upon a finding that the subpoena is designed to produce relevant information.

Source. (See Revision Note at chapter heading for Hum 300) #8815-A, eff 2-3-07

Hum 307.02 Payment of Fees Related to Subpoenas.

(a) When a subpoena is issued upon the motion of a party or person other than a commissioner, the cost of service, witness and mileage fees shall be borne by the party or person at whose request the subpoena is issued.

(b) When a subpoena is issued upon the initiative of the commission or a commissioner, the cost of such service and witness and mileage fees shall be borne by the commission. Such witness and mileage fees shall be the same as those paid witnesses in the district courts of the state.

Source. (See Revision Note at chapter heading for Hum 300) #8815-A, eff 2-3-07

Hum 307.03 Vacation or Modification of Subpoena.

(a) Any recipient of a subpoena may petition the commission to vacate or modify a subpoena issued in its name.

(b) The commission shall give prompt notice to the party, if any, who requested issuance of the subpoena, and such party shall have the opportunity to respond within a time limit set by the presiding officer.

(1) The testimony sought, or the evidence required to be produced, does not relate to any matter in question in the hearing;

(2) The subpoena for the production of evidence is unreasonable and oppressive; or

(3) The subpoena was issued so close in time before the hearing for which the testimony or evidence is sought that the recipient is unable to comply with it.

Source. (See Revision Note at chapter heading for Hum 300) #8815-A, eff 2-3-07

Hum 307.04 Failure to Comply. Upon the failure of any person or entity to comply with a subpoena issued in the name of the commission and not revoked or modified by the commission as provided in Hum 307.03, an attorney representing the commission shall seek enforcement of the subpoena in superior court.

Source. (See Revision Note at chapter heading for Hum 300) #8815-A, eff 2-3-07

PART Hum 308 DEPOSITIONS

Hum 308.01 Depositions by Agreement.

(a) The parties may take depositions by agreement, provided that:

(1) Depositions are limited to 3 individuals chosen by each party; or

(2) Additional depositions are permitted by the presiding officer pursuant to (b) below.

(b) Additional depositions shall be:

(1) Sought by motions subject to the motion rules in Hum 310; and

(2) Approved by the presiding officer on the determination that they are necessary for a true and full disclosure of the relevant facts.

Source. (See Revision Note at chapter heading for Hum 300) #8815-A, eff 2-3-07

Hum 308.02 Motions for Depositions.

(a) In the absence of an agreement to take a deposition, a party objecting to a deposition being sought shall request relief from the presiding officer by filing a motion subject to the motion rules in Hum 310.

(b) The presiding officer shall grant the motion for relief if he or she determines that the intended deposition:

(1) Would not lead to the discovery of relevant and admissible evidence; or

(2) Is intended to:

a. Harrass the objecting party;

b. Retaliate against the objecting party; or

c. Unnecessarily delay the proceedings.

Source. (See Revision Note at chapter heading for Hum 300) #8815-A, eff 2-3-07

Hum 308.04 Payment of Cost of Depositions. The party requesting a deposition, or receiving the presiding officer's approval to take a deposition, shall:

(a) Pay the cost of the deposition; and

(b) Provide a copy of the deposition transcript to the opposing party(ies) and to the commission.

Source. (See Revision Note at chapter heading for Hum 300) #8815-A, eff 2-3-07

PART Hum 309 INTERROGATORIES

Hum 309.01 Interrogatories and Answers to Interrogatories.

(a) A party may serve no more than 20 interrogatories on any opposing party after a finding of probable cause.

(b) Interrogatories shall be mailed by certified mail, return receipt requested.

(1) Verified; and

(2) Returned to the party serving the interrogatories and to the office of the commission:

a. Within 30 days of receipt of the interrogatories; and

b. By certified mail, return receipt requested.

Source. (See Revision Note at chapter heading for Hum 300) #8815-A, eff 2-3-07

Hum 309.02 Objections to Interrogatories; Failure to Respond to Interrogatories.

(a) If a party served with interrogatories wishes to object to any of them, the party shall:

(1) Submit a statement of objection to the presiding officer and to the party serving the interrogatories within 10 days of receipt of the interrogatories; and

(2) Include in the statement of objection the reason(s) therefor.

(b) The presiding officer shall require challenged interrogatories to be answered unless he or she determines that:

(1) The information sought can be more conveniently provided in an alternative format or by different means;

(2) The cost of producing the information sought outweighs its likely usefulness or relevance in deciding the issue(s) in the case;

(3) The challenged interrogatories will not lead to the discovery of admissible and relevant evidence;

(4) The challenged interrogatories are intended to harass the party served with them; or

(5) The challenged interrogatories are intended to cause unnecessary delay in the proceedings.

(1) Establish a deadline for the answer(s) which:

a. Allows enough time for the party served with the interrogatories to comply with the order; and

b. Ensures that the party serving the interrogatories receives the answers to them in enough time to prepare for the hearing; and

(2) Include notice to the party served with the interrogatories that failure to answer them on time shall prevent such party from testifying to or otherwise presenting the information sought during the hearing, unless such party is called by an opposing party.

(d) If the party ordered to answer interrogatories has not done so by the deadline set by the presiding officer, this fact shall be noted in the record and the sanction described in (c)(2) above shall be imposed.

Source. (See Revision Note at chapter heading for Hum 300) #8815-A, eff 2-3-07

PART Hum 310 MOTIONS

Hum 310.01 Default Rule Governing Motions.

(a) Unless governed by other more specific rules in this chapter, requests for actions to be taken by the hearing commissioners or the presiding officer shall be made:

(1) Orally and on the record if the requests are made during the course of a public adjudicative hearing; or

(2) By written motions meeting the requirements of (b) below.

(b) Motions shall:

(1) Be in writing and signed by the proponent or the attorney for the proponent;

(2) State with specificity the grounds thereof;

(3) State the relief sought;

(4) State compliance with (c) below on seeking concurrence;

(5) Be copied to all other parties;

(6) State that a copy was sent to all other parties; and

(7) Be filed not later than 15 days before to the public adjudicative hearing.

(c) The moving party shall make a good-faith attempt to obtain concurrence from opposing parties in the relief sought, except in the case of dispositive motions or other motions in which it can reasonably be assumed that the proponent will be unable to obtain concurrence.

(d) Supporting memoranda, documents and copies of any cited court cases shall be filed with the motion, unless a continuance for a later filing has been sought pursuant to Hum 305 and granted by the presiding officer.

Source. (See Revision Note at chapter heading for Hum 300) #8815-A, eff 2-3-07

Hum 310.02 Objections to Motions.

(a) An objection to a motion filed pursuant to Hum 310.01 shall be filed within 10 days after the motion was filed.

(b) Supporting memoranda, documents and copies of any cited court cases shall be filed with the objection, unless a continuance for a later filing has been sought pursuant to Hum 305 and granted by the presiding officer.

Source. (See Revision Note at chapter heading for Hum 300) #8815-A, eff 2-3-07

Hum 310.03 Decisions on Motions. Motions shall be decided by the presiding officer without an oral hearing, provided that an oral hearing shall take place under the following circumstances:

(a) When scheduled at the commission's own initiative; or

(b) Upon a party's request when the presiding officer determines that an oral hearing will materially assist him or her in ruling on the motion or is required to comply with law.

Source. (See Revision Note at chapter heading for Hum 300) #8815-A, eff 2-3-07

PART Hum 311 INTERVENTION

Hum 311.01 Motions for Intervention.

(a) Any person or entity, other than a party, having a direct interest in the outcome of the public adjudicative hearing and wishing to intervene in the hearing shall make a written motion before the beginning of the hearing.

(b) The motion to intervene shall include, but not be limited to, the following:

(1) A statement of the limited purpose or purposes for which the person or entity wishes to appear; and

(2) Pertinent facts substantiated by a notarized affidavit to support the reasons for intervention.

(d) The motion to intervene shall be mailed to all parties named in the notice of the public adjudicative hearing.

Source. (See Revision Note at chapter heading for Hum 300) #8815-A, eff 2-3-07

Hum 311.02 Objections to Motions for Intervention.

(a) Any parties wishing to object to a motion to intervene shall file objections as soon as practicable.

(b) If the motion to intervene is filed at least 3 days before the hearing, a party opposing it shall have the burden of persuading the presiding officer that the intervention should not be granted.

(c) If the motion to intervene is filed less than 3 days before the hearing and the motion is opposed, the proponent of the motion to intervene shall have the burden of persuading the presiding officer that the intervention should be granted.

Source. (See Revision Note at chapter heading for Hum 300) #8815-A, eff 2-3-07

Hum 311.03 Decision on Motions for Intervention.

(a) The presiding officer shall rule on motions for intervention in advance of the hearing.

(b) The presiding officer shall grant a motion to intervene if he or she determines that:

(1) The interests of justice will be advanced; and

(2) The orderly and prompt conduct of the hearing will not be impaired by allowing the intervention.

Source. (See Revision Note at chapter heading for Hum 300) #8815-A, eff 2-3-07

PART Hum 312 JOINDER AND SEVERANCE

Hum 312.01 Joinder. Whenever it shall appear that 2 or more complaints involve substantially similar or substantially related issues, the hearing commissioners shall join those proceedings for hearing, for decision or both.

Source. (See Revision Note at chapter heading for Hum 300) #8815-A, eff 2-3-07

Hum 312.02 Severance. Whenever it shall appear that prejudice to a party or parties or undue delay might be thereby avoided, the hearing commissioners shall sever one or more issues or parties, and dispose of those issues and include those parties in another proceeding.

Source. (See Revision Note at chapter heading for Hum 300) #8815-A, eff 2-3-07

PART Hum 313 WAIVER OF RULES

Hum 313.01 Motions for Waiver of Rules.

(a) Any party or other participant in a public adjudicative hearing wishing a waiver of one or more rules in this chapter shall request such a waiver by:

(1) Submitting a written motion complying with (b) below; or

(2) If time is insufficient for the submission of a written motion and of objections thereto, making an oral motion stating:

a. The rule to be waived;

b. The purpose of the waiver request; and

b. The likely impact on all parties of the requested waiver.

(b) A written motion for waiver of a rule shall:

(1) Be filed not later than 15 days prior to the anticipated application of the rule to be waived;

(2) Be addressed to the investigating commissioner or staff person who is responsible for applying the rule to be waived;

(3) Be provided to all other parties together with a request for concurrence;

(4) Recite the rule to be waived;

(5) State the purpose of the waiver request;

(6) State the likely impact on all parties of the requested waiver;

(7) State compliance with the requirement to seek concurrence; and

(8) If thought by its proponent, be accompanied by memoranda, documents and copies of cited court opinion.

Source. (See Revision Note at chapter heading for Hum 300) #8815-A, eff 2-3-07

Hum 313.02 Decisions on Motions for Waiver of Rules. The presiding officer shall waive the rule if the waiver:

(a) Appears to be lawful; and

(b) Is more likely to promote a fair and accurate hearing than would adherence to the particular requirement or limitation set by the rule.

Source. (See Revision Note at chapter heading for Hum 300) #8815-A, eff 2-3-07

PART Hum 314 RECORDING; TRANSCRIPTS; PAYMENT FOR RECORD FOR JUDICIAL REVIEW

Hum 314.01 Recording. The commission shall make an official verbatim recording of all public adjudicative hearings.

Source. (See Revision Note at chapter heading for Hum 300) #8815-A, eff 2-3-07

Hum 314.02 Transcripts.

(a) The stenographic or other recording made at a public adjudicative hearing shall not be transcribed unless a transcript is requested.

(b) If a party or any other person or entity requests a transcript:

(1) Transcription shall be at the expense of the person or entity making the request, except under the circumstances described in (c) below; and

(2) A copy of the transcript shall be provided to the commission.

(c) Pursuant to RSA 354-A:21, II(c) the commission shall pay the cost of transcription when the transcript is sought by a party who is an individual without the funds to pay for transcription.

(d) The copy of any transcript provided to, or made by, the commission shall be:

(1) Kept in the commission's office;

(2) Available for examination; and

(3) Available for copies to be made on request and upon payment for the copies.

Source. (See Revision Note at chapter heading for Hum 300) #8815-A, eff 2-3-07

PART Hum 315 CONDUCT OF PUBLIC ADJUDICATIVE HEARINGS

Hum 315.01 Rights of the Parties at Public Adjudicative Hearing.

(a) Parties may call, examine and cross-examine witnesses identified on the witness lists submitted pursuant to Hum 306.05(a)(1).

(b) Parties may offer documents and other evidence submitted pursuant to Hum 306.05(a)(2) for inclusion in the record of the proceedings.

(d) Parties shall be permitted to file briefs within such time limits as the presiding officer determines.

Source. (See Revision Note at chapter heading for Hum 300) #8815-A, eff 2-3-07

Hum 315.02 Default.

(a) The commission shall issue a default order against any party to whom a notice of hearing has been served if the party:

(1) Fails to appear for hearing; and

(2) Fails to:

a. Notify the commission of non-appearance before the scheduled time of the public adjudicative hearing; and

b. Request a continuance and rescheduling in accordance with Hum 305.

(b) A party against whom a default order has been entered may request by a motion complying with Hum 310.01 that the default order be set aside.

(d) A motion to set aside a default order shall be granted when the proponent of the motion was prevented from appearing by:

(1) Serious illness of the proponent or a member of the proponent's immediate family; or

(2) The death of a member of the proponent's immediate family.

Source. (See Revision Note at chapter heading for Hum 300) #8815-A, eff 2-3-07

Hum 315.03 Method of Presentation of the Case Supporting the Complaint.

(a) When the complainant is not represented by an attorney, the case in support of the complaint shall be presented by a member of the commission staff or by an attorney representing the commission.

(b) When the complainant is represented by an attorney:

(1) A member of the commission staff shall present only:

a. The complaint;

b. The answer(s) of the respondent(s);

c. The report and findings of the investigating commissioner; and

d. Exhibits selected from the investigation file; and

(2) The complainant's attorney shall present the case in support of the complaint.

Source. (See Revision Note at chapter heading for Hum 300) #8815-A, eff 2-3-07

Hum 315.04 Order of Proof.

(a) The case in support of the complainant's position shall be presented first.

(b) The case in support of the non-discriminatory defense(s) of the respondent(s) shall be presented after the complainant's case has been presented.

(c) After the presentation of the non-discriminatory defense(s) of the respondent(s), the complainant shall have the opportunity to rebut the defense(s) and demonstrate that the non-discriminatory defense(s) is pretextual.

Source. (See Revision Note at chapter heading for Hum 300) #8815-A, eff 2-3-07

Hum 315.05 Evidence.

(a) Testimony shall be given under oath or affirmation.

(b) Testimony and other evidence shall not be limited by the strict rules of evidence prevailing in courts of law or equity, provided, however, that the rules of privilege recognized under the laws of the state of New Hampshire shall be applied.

(1) Stipulations if they are signed by the person to be bound by the stipulation or by his or her attorney; and

(2) Facts of which the presiding officer takes official notice pursuant to Hum 315.06.

(d) The following evidence shall not be accepted:

(1) Unduly repetitious evidence;

(2) Evidence concerning settlement or conciliation efforts; and

(3) Non-testimonial evidence ruled by the presiding officer as not relevant to any factual or legal issues in dispute.

Source. (See Revision Note at chapter heading for Hum 300) #8815-A, eff 2-3-07

Hum 315.06 Official Notice of Facts.

(a) The presiding officer shall take official notice of facts on his or her own initiative or on the motion of one or more parties.

(b) When the presiding officer officially notices a fact or facts:

(1) It shall be so stated on the record; and

(2) Any party shall be given the opportunity to show the contrary.

(1) Facts which could be judicially noticed in the state's courts;

(2) The record of other proceedings before the agency; and

(3) Codes or standards which have been adopted by a federal or state agency or nationally recognized organization or association.

Source. (See Revision Note at chapter heading for Hum 300) #8815-A, eff 2-3-07

Hum 315.07 Burden and Standard of Proof. In order to receive a favorable decision the complainant shall have the burden of proving the case for the complaint by a preponderance of the evidence.

Source. (See Revision Note at chapter heading for Hum 300) #8815-A, eff 2-3-07

PART Hum 316 FINDINGS OF FACT; COMMISSION DECISIONS AND ORDERS

Hum 316.01 Basis for Commission Decisions.

(a) The commission's decision in a discrimination case shall be:

(1) Based upon the evidence presented at the public adjudicative hearing;

(2) Made by majority vote of the 3 hearing commissioners; and

(3) Set forth in an order.

(b) A hearing commissioner shall not participate in the decision if he or she has not personally heard all of the testimony, unless the decision does not depend on the credibility of any witness and the record provides a reasonable basis for evaluating the testimony.

Source. (See Revision Note at chapter heading for Hum 300) #8815-A, eff 2-3-07

Hum 316.02 Findings of Fact; Orders.

(a) If, upon all the evidence, the hearing commissioners decide that a respondent has engaged in an unlawful discriminatory practice, the commission shall:

(1) Issue the hearing commissioners' findings of fact and an order based upon the findings;

(2) Cause the findings of fact and order to be sent by certified mail to:

a. The respondent at the address given during the hearing or in the answer; and

b. The complainant at the address given in the complaint or at the hearing; and

(3) Deliver a copy of the order to the attorney general of the State of New Hampshire.

(b) If, upon all the evidence, the hearing commissioners decide that a respondent did not engaged in any unlawful practice, the commission shall:

(1) State the hearing commissioners' findings of fact upon the record;

(2) Order the complaint dismissed;

(3) Cause the order to be sent by certified mail to:

a. The respondent at the address given during the hearing or in the answer; and

b. The complainant at the address given in the complaint or at the hearing; and

(4) Deliver a copy of the order to the attorney general of the State of New Hampshire.

Source. (See Revision Note at chapter heading for Hum 300) #8815-A, eff 2-3-07

Hum 316.03 Retention of Final Commission Decisions. The commission shall keep a final decision in its records for at least 5 years following its date of issuance, unless the director of the division of records management and archives of the department of state sets a different retention period pursuant to rules adopted under RSA 5:40.

Source. (See Revision Note at chapter heading for Hum 300) #8815-A, eff 2-3-07

PART Hum 317 RECONSIDERATION AND REVIEW OF CASE DECISIONS

Hum 317.01 Initiation of Reconsideration of Case Decision by the Commission or On Motion of A Party.

(a) The commission shall on its own initiative reconsider and review any case decision made pursuant to Hum 316 for good cause as set forth in Hum 317.04, provided that, before doing so, it has given notice to all parties and intervenors of its decision to reconsider and review.

(b) A party may request reconsideration and review of a case decision by filing a motion:

(1) Complying with the motion rules in Hum 310.01(b)-(d); and

(2) Doing so within 30 days of the certified mailing described in Hum 316.02(a)(2) or Hum 316.02(b)(3), as applicable.

Source. (See Revision Note at chapter heading for Hum 300) #8815-A, eff 2-3-07

Hum 317.02 Objections to Motions for Reconsideration. Objections to a motion for reconsideration and review shall be governed by Hum 310.02.

Source. (See Revision Note at chapter heading for Hum 300) #8815-A, eff 2-3-07

Hum 317.03 Decision Maker Granting or Denying Reconsideration.

(a) Decisions granting or denying reconsideration and review shall be made by the presiding officer unless:

(1) Reconsideration is undertaken by the commission on its own initiative; or

(2) The motion for reconsideration alleges a bias or conflict of interest on the part of the presiding officer or either of the other 2 hearing commissioners such that the bias or conflict might have prevented a fair decision and actual harm to the motion's proponent.

(b) If the motion alleges such bias or conflict of interest, the commission chair shall:

(1) Grant reconsideration on his or her determination that such allegations of bias or conflict of interest might be true; and

(2) Appoint a new panel of 3 hearing commissioners to review the decision in the case and issue a final decision.

Source. (See Revision Note at chapter heading for Hum 300) #8815-A, eff 2-3-07

Hum 317.04 Bases for Granting Reconsideration and Review of the Commission's Case Decision. In addition to the basis set forth in Hum 317.03(b)(1), a motion for reconsideration and review shall be granted for:

(a) The existence of new and material evidence of which the motion's proponent was unaware and which the proponent could not with due diligence have uncovered and submitted before the issuance of the case decision;

(b) Mistake of fact or law made by the hearing commissioners or the commission; or

Source. (See Revision Note at chapter heading for Hum 300) #8815-A, eff 2-3-07

Hum 317.05 Procedural Effect of Reconsideration. Reconsideration initiated by the commission or on motion granted by the commission chair or presiding officer shall:

(a) Stay the original order issued by the commission; and

(b) Be completed with the issuance of a final decision no later than 45 days of the following, as applicable:

(1) The issuance of the notice required by Hum 317.01(a); or

(2) The granting of a motion for reconsideration and review.

Source. (See Revision Note at chapter heading for Hum 300) #8815-A, eff 2-3-07

Hum 317.06 Method of Review of Case Decision. After approval of reconsideration of a case decision, review of the case decision shall be:

(a) On the record if reconsideration was approved because of:

(1) Alleged mistake of law by the commissioners or the commission; or

(2) Any reason alleged pursuant to Hum 317.04(c) which does not require a hearing to determine material facts; or

(b) After a hearing of the material facts if reconsideration was approved:

(1) Pursuant to Hum 317.03(b)(2); or

(2) Pursuant to Hum 317.04 because of:

a. Alleged existence of new and material evidence of which the hearing commissioners were aware because they were not submitted to them;

b. Alleged mistake of fact by the commissioners or the commission; or

c. Any reason alleged pursuant to Hum 317.04(c) which requires a hearing to determine material facts.

Source. (See Revision Note at chapter heading for Hum 300) #8815-A, eff 2-3-07

PART Hum 318 DECLARATORY RULINGS

Hum 318.01 Purpose of Declaratory Rulings. The purpose of a declaratory ruling is to give information to individuals and entities potentially subject to:

(1) Allegations of illegal discrimination in violation of RSA 354-A; or

(2) Allegations of violation of such federal laws prohibiting discrimination as are within the jurisdiction of the commission to enforce.

Source. (See Revision Note at chapter heading for Hum 300) #8815-A, eff 2-3-07

Hum 318.02 Petitions for Declaratory Rulings.

(a) Any person or entity may petition for a declaratory ruling if that person or entity is potentially subject to allegations of discrimination as further described in Hum 318.01.

(b) A petition for a declaratory ruling:

(1) Shall relate only to actual present or potential future circumstances;

(2) Shall not relate to past or purely hypothetical circumstances;

(3) Shall not relate to circumstances forming the foundation for a pending investigation, administrative hearing or litigation in any state or federal agency or court;

(4) Shall be written in such a manner as to avoid references to:

a. Specific individuals and entities;

b. Business secrets;

c. Information which is confidential pursuant to RSA 91-A; and

d. Information which is confidential pursuant to any law or pursuant to the order of any administrative agency or court;

(5) Shall, if accompanied by supporting documents, be accompanied only by documents which do not refer to the information listed in (4)a. above or from which such information has been redacted;

(6) Shall, at the option of the petitioner, be accompanied by additional material chosen to clarify the petition;

(7) Shall include the information required by (c) below; and

(8) Shall include the following declaration signed by the individual submitting the petition, the authorized representative of such individual, or the authorized representative of the entity submitting the petition:

"I declare that I have examined this petition for a declaratory ruling, including the accompanying documents, and state that, to the best of my knowledge and belief, the petition complies with the administrative rules governing declaratory rulings by the New Hampshire Commission for Human Rights, and that the facts presented in the petition are true, correct and complete".

(1) The name and address of the person submitting the petition or the individual submitting it on behalf of another person or of an entity;

(2) A description of the set of facts to which the petition relates;

(3) Identification of the particular administrative rule(s), statute(s) or order(s) the petitioner believes might apply to the facts presented; and

(4) The specific question(s) which the petitioner wants answered, stated in

terms of:

a. Whether or not the rule(s), statute(s) or order(s) identified by the petitioner would apply to the facts stated by the petitioner; and

b. If so, how they would apply.

Source. (See Revision Note at chapter heading for Hum 300) #8815-A, eff 2-3-07

Hum 318.03 Commission Responses to Petitions for Declaratory Rulings.

(a) If a declaratory ruling will be delayed by the commission's need for additional information, the commission shall so notify the petitioner within 60 days of receipt of the petition.

(b) If additional information is required, the commission shall, in its notice to the petitioner:

(1) Specify the information required;

(2) Require that the additional information be provided in a statement that includes the declaration specified in Hum 318.02(b)(9);

(3) Request any material necessary to establish or clarify the additional information set forth in such statement; and

(4) Specify the date by which such information and materials are to be submitted.

(1) Within 120 days of receipt of the petition if:

a. The petitioner is not a person or entity entitled to submit a petition;

b. The petition identifies no administrative rule(s), statute(s) or order(s) within the jurisdiction of the commission; or

c. The petition does not comply with Hum 318.02; and

(2) Within 120 days of the deadline set by the commission, if the petitioner does not timely provide the additional information and materials sought by the commission pursuant to (b) above.

(d) If the commission does not deny a petition for declaratory ruling, it shall grant the petition by ruling in writing on the questions stated by the petitioner pursuant to Hum 318.02(c)(4) within 120 days of the receipt of:

(1) The petition; or

(2) The additional information requested pursuant to (b) above.

(e) The commission shall draft declaratory rulings in a manner intended to avoid the disclosure of:

(1) The identity of specific individuals and entities;

(2) Business secrets;

(3) Information which is confidential pursuant to RSA 91-A; and

(4) Information which is confidential pursuant to any law or pursuant to the order of any administrative agency or court.

(f) In accordance with RSA 541-A:16, II (b), the commission shall file declaratory rulings on the day of issuance with the director of legislative services.

Source. (See Revision Note at chapter heading for Hum 300) #8815-A, eff 2-3-07

Hum 318.04 Effect of Declaratory Rulings. A declaratory ruling issued by the commision shall:

(a) Apply only to the petitioner;

(b) Be confined to the set of facts and information contained in the petition or additional submissions made in conjunction with the petition; and

(b) Not constitute a finding that such facts and information have occurred or will occur as presented.

Source. (See Revision Note at chapter heading for Hum 300) #8815-A, eff 2-3-07

PART Hum 319 RULEMAKING

Hum 319.01 Rulemaking Notice. A copy of a notice of proposed rulemaking shall be sent to any person who has made a written request to receive such notices from the commission.

Source. (See Revision Note at chapter heading for Hum 300) #8815-A, eff 2-3-07

Hum 319.02 Petitions for Rulemaking.

(a) Any person may seek the adoption, amendment or repeal of a rule by submitting to the commission a petition pursuant to RSA 541-A:4.

(b) Each petition for rulemaking shall contain:

(1) The name and address of the individual petitioner or, if the request is that of an organization or other entity, the identity of such organization or entity and the name and address of the representative authorized by the entity to file the petition;

(2) A statement of the purpose of the petition, whether the adoption, amendment or repeal of a rule;

(3) If amendment or adoption of a rule is sought, the text proposed;

(4) If amendment or repeal of a rule is sought, identification of the current rule sought to be amended or repealed;

(5) Reference to the statutory provision that authorizes or supports the rulemaking petition; and

(6) Information or argument useful to the commission when deciding whether to begin the rulemaking process.

Source. (See Revision Note at chapter heading for Hum 300) #8815-A, eff 2-3-07

Hum 319.03 Disposition of Petitions for Rulemaking.

(a) The commission shall request additional information or argument from the petitioner for rulemaking or from others if such additional information or argument is required to reach a decision.

(b) The commission shall grant the petition for rulemaking unless the adoption, amendment or repeal sought would result in:

(1) A rule that is not within the rulemaking authority of the commission;

(2) Duplication of a rule or of a statutory provision;

(3) Inconsistency between the existing rules and the statutory mandate of the commission;

(4) Inconsistency of one administrative rule with another; or

(5) Excessive burden upon the commission in terms of cost or a reduction in efficiency or effectiveness.

(1) By notifying the petitioner that the petition is granted and beginning rulemaking proceedings as required by RSA 541-A:4; or

(2) By notifying the petitioner in writing that the petition is denied and the reasons for its denial.

(d) The denial of a petition for rulemaking shall not entitle the petitioner to a hearing.

Source. (See Revision Note at chapter heading for Hum 300) #8815-A, eff 2-3-07

PART Hum 320 PUBLIC COMMENT HEARINGS

Hum 320.01 Purpose. The purpose of this part is to provide uniform procedures for the conduct of public comment hearings held pursuant to RSA 541-A:11.

Source. (See Revision Note at chapter heading for Hum 300) #8815-A, eff 2-3-07

Hum 320.02 Public Access and Participation.

(a) Public comment hearings shall be open to the public, and members of the public shall be entitled to testify, subject to the limitations of Hum 320.03.

(b) People who wish to testify shall be asked to write on the speaker's list:

(1) Their full names and addresses; and

(2) The names and addresses of organizations, entities or other persons whom they represent, if any.

(c) Written comments, which may be submitted in lieu of or in addition to oral testimony, shall be accepted for 10 days after the adjournment of a hearing or after the adjournment of a postponed or continued hearing.

Source. (See Revision Note at chapter heading for Hum 300) #8815-A, eff 2-3-07

Hum 320.03 Limitations on Public Participation. The commission chair or other person designated by the commission to preside over a public comment hearing shall:

(a) Refuse to recognize for speaking or revoke the recognition of any person who:

(1) Speaks or acts in an abusive or disruptive manner;

(2) Fails to keep comments relevant to the proposed rules that are the subject matter of the hearing; or

(3) Restates more than once what he or she has already stated; and

(b) Limit presentations on behalf of the same organization or entity to no more than 3, provided that all those representing such organization or entity may enter their names and addresses into the record as supporting the position of the organization or entity.

Source. (See Revision Note at chapter heading for Hum 300) #8815-A, eff 2-3-07

Hum 320.04 Media Access. Public comment hearings shall be open to print and electronic media, subject to the following limitations when such limitations are necessary to allow a hearing to go forward:

(a) Limitation of the number of media representatives when their number together with the number of other members of the public present exceeds the capacity of the hearing room;

(b) Limitation on the placement of cameras to specific locations within the hearing room; or

Source. (See Revision Note at chapter heading for Hum 300) #8815-A, eff 2-3-07

Hum 320.05 Conduct of Public Comment Hearings.

(a) Public comment hearings shall be attended by a quorum of the commission.

(b) Public comment hearings shall be presided over by the commission chair or a commission member knowledgeable in the subject area of the proposed rules who has been designated to preside over the hearing.

(1) Call the hearing to order;

(2) Identify the proposed rules that are the subject matter of the hearing and provide copies of them upon request;

(3) Cause a recording of the hearing to be made;

(4) Recognize those who wish to be heard;

(5) If necessary, establish limits pursuant to Hum 320.03 and Hum 320.04;

(6) If necessary to permit the hearing to go forward in an orderly manner, effect the removal of a person who speaks or acts in a manner that is personally abusive or otherwise disrupts the hearing;

(7) If necessary, postpone or move the hearing; and

(8) Adjourn or continue the hearing.

(d) A hearing shall be postponed in accordance with RSA 541-A:11, IV when:

(1) The weather is so inclement that it is reasonable to conclude that people wishing to attend the hearing will be unable to do so;

(2) There is no quorum of the commission due to illness or unavoidable absence; or

(3) Postponement will facilitate greater participation by the public.

(e) A hearing shall be moved to another location in accordance with RSA 541-A:11, V when the original location is not able to accommodate the number of people who wish to attend the hearing.

(f) A hearing shall be continued past the scheduled time or to another date in accordance with RSA 541-A:11, III when:

(1) The time available is not sufficient to give each person who wishes to speak a reasonable opportunity to do so; or

(2) The capacity of the room in which the hearing is to be held does not accommodate the number of people who wish to attend; and it is not possible to move the hearing to another location.

Source. (See Revision Note at chapter heading for Hum 300) #8815-A, eff 2-3-07

PART Hum 321 EXPLANATION OF ADOPTED RULES

Hum 321.01 Requests for Explanation of Adopted Rules. Any interested person may, within 30 days of the final adoption of a rule, request a written explanation of that rule by making a written request to the commission including:

(a) The name and address of the person making the request; or

(b) If the request is that of an organization or other entity, the name and address of such organization or entity and the name and address of the representative authorized by the organization or entity to make the request.

Source. (See Revision Note at chapter heading for Hum 300) #8815-B, eff 2-3-07

Hum 321.02 Contents of Explanation. The commission shall, within 90 days of receiving a request in accordance with Hum 321.01, provide a written response which:

(a) Concisely states the meaning of the rule adopted;

(b) Concisely states the principal reasons for and against the adoption of the rule in its final form; and

(c) States, if the commission did so, why the commission overruled any arguments and considerations presented against the rule.

Source. (See Revision Note at chapter heading for Hum 300) #8815-B, eff 2-3-07

Rule	Statute

Hum 101	RSA 541-A:7
Hum 102.01	RSA 354-A:5, V, VI, VIII and IX
Hum 102.02(a)	RSA 354-A:3, I
Hum 102.02(b)	RSA 354-A:5, III
Hum 103.01	RSA 541-A:16, I(a)
Hum 103.02(a)	RSA 91-A:4
Hum 103.02(b)	RSA 541-A:16(1)(b)

Hum 201	RSA 541-A:7
Hum 202	RSA 354-A:5,V; RSA 541-A:16, I(b)
Hum 202.01(a)(1)-(3)	RSA 354-A:21, I(a)
Hum 202.01(a)(4)	RSA 354-A:21, I(b)
Hum 202.01(b)-(d)	RSA 354-A:21, I(a)
Hum 202.02	RSA 354-A:21, I(a)
Hum 202.03	RSA 354-A:21, I(a)
Hum 202.04(a)	RSA 541-A:16, I(b)
Hum 202.04(b)	RSA 354-A:21, III
Hum 202.04(c) and Hum 202.05	RSA 541-A:16, I(b)
Hum 203	RSA 354-A:21, II(a); RSA 354-A:5,V
Hum 204 and Hum 205	RSA 541-A:16, I(b); RSA 354-A:21, II(f)
Hum 206 through Hum 211	RSA 354-A:21, II(a); RSA 541-A:16, I(b); RSA 354-A:21, II(f)
Hum 212	RSA 354-A:5,V; 541-A:16, I(b)
Hum 212.01	RSA 541-A:16, I(b); RSA 354-A:21, II(f)
Hum 212.02(a)	RSA 354-A:25
Hum 212.02(b)	RSA 541-A:16, I(b); RSA 354-A:21, II(f)
Hum 213 through Hum 218	RSA 541-A:16, I(b); RSA 354-A:21, II(f)
Hum 219.01(a)	RSA 541-A:16, I(b); RSA 354-A:21, II(f)
Hum 219.01(b)(1)-(4)	RSA 541-A:16, I(b); RSA 354-A:21, II(f)
Hum 219.01(b)(5)-(6)	RSA 91-A:5
Hum 219.01(b)(7) and (c)	RSA 541-A:16, I(b); RSA 354-A:21, II(f)
Hum 219.02-Hum 219.04(a)	RSA 541-A:16, I(b); RSA 354-A:21, II(f)
Hum 219.04(b)	RSA 354-A:21, II(a)
Hum 219.04(c)	RSA 541-A:16, I(b); RSA 354-A:21, II(f)
Hum 220 and Hum 221	RSA 541-A:16, I(b); RSA 354-A:21, II(f)

Hum 301.01 and Hum 302.01	RSA 541-A:7
Hum 302.02, Hum 302.03	RSA 354-A:15, IV; RSA 354-A:5,V
Hum 303.01	RSA 541-A:16, I(b)(2); RSA 354-A:21, II(f)
Hum 303.02	RSA 641-A:30-a, III(b)
Hum 303.03	RSA 541-A:16, I(b)(2); RSA 354-A:21, II(f)
Hum 304.01	RSA 354-A:4; RSA 354-A:21, II(f)
Hum 304.02(a) and (b)	RSA 541-A:16, I(b)(2); RSA 354-A:21, II(f)
Hum 304.02(c)	RSA 541-A:30-a, III(k)
Hum 304.03	RSA 541-A:30-a, III(f)
Hum 304.04	RSA 541-A:16, I(b)(2); RSA 354-A:21, II(f)
Hum 305	RSA 541-A:30-a, III(h)
Hum 306.01	RSA 541-A:16, I(b)(2); RSA 354-A:21, II(f)
Hum 306.02	RSA 541-A:31, V(b) and (c); RSA 354-A:21, II(f)
Hum 306.03	RSA 354-A:21, II(c); RSA 354-A:21, II(f)
Hum 306.04	RSA 541-A:16, I(b)(2); RSA 354-A:21, II(f)
Hum 306.05	RSA 541-A:30-a, III(c)
Hum 307.01- Hum 307.03	RSA 354-A:5, VII; RSA 354-A:21, II(f)
Hum 307.04	RSA 354-A:5, XIV
Hum 308 through Hum 310	RSA 541-A:16, I(b)(2); RSA 354-A:21, II(f)
Hum 311	RSA 541-A:32
Hum 312	RSA 541-A:16, I(b)(2); RSA 354-A:21, II(f)
Hum 313	RSA 541-A:30-a, III(j)
Hum 314.01 and Hum 314.02(a) and (b)	RSA 541-A:31, VII
Hum 314.02(c) and (d)	RSA 541-A:16, I(b)(2); RSA 354-A:21, II(f)
Hum 315.01(a)	RSA 541-A:31, IV; RSA 541-A:33, IV; RSA 354-A:21, II(f)
Hum 315.01(b)-(d)	RSA 541-A:16, I(b)(2); RSA 354-A:21, II(f)
Hum 315.02 - Hum 315.04	RSA 541-A:16, I(b)(2); RSA 354-A:21, II(f)
Hum 315.03	RSA 354-A:21, II(c)
Hum 315.04	RSA 541-A:16, I(b)(2); RSA 354-A:21, II(f)
Hum 315.05(a) and (b)	RSA 354-A:21, II(c)
Hum 315.05(c) and (d)	RSA 541-A:16, I(b)(2); RSA 354-A:21, II(f)
Hum 315.06	RSA 541-A:33, V
Hum 315.07	RSA 541-A:30-a, III(d) and (e)
Hum 316.01	RSA 541-A:16, I(b)(2); RSA 354-A:21, II(f)
Hum 316.02(a)	RSA 354-A:21, II(d)
Hum 316.02(b)	RSA 354-A:21, II(f)
Hum 316.03	RSA 541-A:30-a, III(l)
Hum 317	RSA 541-A:16, I(b)(2); RSA 354-A:21, II(f)
Hum 318	RSA 541-A:16, I(d)
Hum 319	RSA 541-A:16, I(c)
Hum 320	RSA 541-A:16, I(b)(3)
Hum 321	RSA 541-A:11, VII