Alaska Employment Law

May the EEOC issue a Right-to-Sue letter before the 60-day conciliation period expires?   If so, may the charging party still amend the charge within the remainder of the 60-day period?  A 9th Circuit panel says, says Yes, and No. 

Several of the plaintiffs had sued after the expiration of the 90-day period, and argued that their Right-to-Sue letters were issued too early.

Moral for plaintiffs: Make sure you’re satisfied with the scope of the charge if you ask for an early Right-to-Sue letter.

The panel held:

On appeal Plaintiffs contend that the right-to-sue letters issued to Warg, Bennett and Walther were ineffective to trigger the 90-day limitation period because the EEOC did not wait 60 days after the charges were filed before issuing the right-to-sue letters. The 60-day conciliation period, however, is the period during which a claimant may not file suit. It has the purpose of promoting conciliation between employer and employee. See 29 U.S.C. § 626(d); see also Dempsey v. Pac. Bell Co., 789 F.2d 1451, 1452 (9th Cir. 1986) (explaining that “the conciliation period . . . afford[s] the employer a pre-litigation opportunity to settle the dispute”). It is not a limitation on the power of the EEOC to act within 60 days, especially when, as here, the plaintiffs asked the EEOC to do so.

Plaintiffs also contend that issuance of a notice prior to the expiration of the conciliation period should not preclude a charging party from subsequently amending the charge. This argument fails because the EEOC regulations provide that once a notice of right-to-sue has been issued, further proceedings are terminated, including the possibility to amend. See 29 C.F.R. § 1601.28(a)(3)(“Issuance of a notice of right to sue shall terminate further proceeding of any charge . . . .”).

Eidenbock v. Charles Schwab & Co., Inc., 2008 WL _______ (9th Cir. June 24, 2008)(unpub.)