Retaliation claims surpassed race as the most frequently filed charge.
By Doug Sherwin / The Daily Transcript / January 19, 2011
Workplace discrimination claims rose to an all-time high last year, but the down economy isn’t the only culprit to blame.
A more legally savvy employee and a fear of job security are other factors, according to local labor & employment attorneys.
Earlier this month, the U.S. Equal Employment Opportunity Commission (EEOC) reported receiving nearly 100,000 workplace discrimination complaints during the fiscal year 2010, which ended Sept. 30.
Additionally, for the first time ever last year, retaliation claims under all statutes surpassed race as the most frequently filed charge.
“The down economy contributes to it, but we’re also experiencing a huge reaction to the down economy in a way we haven’t experienced before,” said Janice Brown, founding partner of the employment law firm Brown Law Group. “This is historic.
“The economy has shifted significantly with several sectors being eliminated. People are responding to the shift with fear – both employers and employees.”
All major categories of claims increased in 2010, according to the EEOC, and the federal agency received more than 200 charges under the Genetic Information Nondiscrimination Act (GINA) in its first year of enforcement.
“American employees are much more aware of their employment rights,” said Jeremy Roth, managing shareholder of the San Diego office of the employment firm Littler Mendelson. “We used to still say how keenly aware of employment rights California employees are. That’s a function of our fairly liberal employment rules and having hundreds of thousands of attorneys.”
Now the rest of the nation’s workers are becoming well versed in employment law, too, helped by the media attention given to the very first piece of legislation Barack Obama signed as president – the employment-related Lily Ledbetter Fair Pay Act.
“The cases are getting a lot of publicity, and the verdicts are quite large,” as well, Roth said.
Roth also said the stigma of filing an employment claim has been largely removed.
Brown said the poor economy has played its part, especially as it’s forced companies to downsize with too much haste.
“They may be reacting to the bottom line so quickly that all the people affected (in a workforce reduction) are in a protected class,” she said.
In other to protect themselves, employers need to regularly and accurately document the performance of their workforce.
“Companies leave themselves vulnerable,” she said. “An employer can’t refute a claim because they don’t have documents. When money is scarce, people don’t take preventative measures.
“People cut back on training of employees; they don’t update employee handbooks; and they don’t give honest employee evaluations.”
Another factor contributing to the increase in claims is the high number of former employees who are still unemployed.
Workers who get hired somewhere else don’t tend to file claims against their former employer.
Littler’s Roth said that heading off potential problems before they start is the best protective measure for employers.
“I think employers need to make sure that in the tough economic times the H.R. (human resources) function doesn’t get eroded, and they stay on top of how decisions are made in the workplace,” he said. “Doing not just what is legally required, but also best practices helps. An ounce of prevention is worth a pound of cure.”
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That part about how decisions are made in the workplace made me chuckle because it’s less about some standardized, objective protocol implemented company wide and more about being a combination of the right rear bumpers being kissed, and, the right egos being massaged, but above all, it’s who you blow, **not** what you know. HR is the most useless dept. in any organization.
Hey now I resemble that. I work in HR, or rather the Navy’s equivalant of that as a Fed employee.
My law office represents working people and labor unions. The number of calls from potential clients are higher than ever before. We are seeing an increase in wage and hour claims, such as unpaid overtime, failure to provide meal and rest breaks, and misclassifying employees as exempt from overtime when they are entitled to it. We are also seeing an increase in workers being fired for whistleblowing. Both of these are economically driven.
For the wage and hour violations, employers who are hurting financially have motivation to reduce their operating costs, and most often, they cut wages and benefits for the hourly workers rather than management. They try to squeeze a little more work out of their employees by making them work through breaks, or work longer days without paying the mandatory overtime rate, and other abuses that essentially amount to a pay reduction (working more hours for less money).
The whistleblowing terminations are growing because more employers are cutting corners on safety, or over-billing the public, in order to keep their profit levels high. Employees who object to these practices can find themselves booted out the door.
And yes, retaliation claims and discrimination claims have increased, too. Employers who need as many workers as they can get don’t pick and choose. But an employer who has to keep some workers and terminate others often has the option to decide who loses his or her job. It shouldn’t be a surprise to learn that the people forced out are often members of protected groups (due to race, sex, national origin, age, disability, etc.).
Fortunately, wage and hour violations can be easier to prove than many other kinds of cases, and our firm has had been able to recover unpaid wages on behalf of workers in a large number of cases. Whistleblower cases are more difficult because there is a level of subjectivity involved, but these cases have tremendous jury appeal; no one wants unsafe products, unsafe practices or over-billing.
Another difficulty for working people is that the government agencies that are supposed to assist workers with wage and hour violations, safety violations, discrimination, etc. are terribly underfunded and understaffed. Even if they wanted to do a good job, they do not have the resources to do so. Thee agencies are funded by acts of the legislature, so when it’s time to vote, take a look at the candidates’ history with respect to working people.
And . . . the article you (OB Rag) reprinted from the Daily Transcript quotes two employER-side attorneys, but no employEE-side attorneys. The workers’ voices are rarely heard. As a result, employees who are treated unlawfully can feel discouraged, and as if there is no recourse. That simply isn’t true. San Diego is lucky to have many strong employee advocates practicing law within the County. I urge the OB Rag and other journals to report on the successes of ordinary working people who stand up for their rights. They can and do win.
Marilynn Mika Spencer
The Spencer Law Firm
San Diego, CA
Welcome to the OB Rag, Mica – it’s been awhile. Didn’t you live in OB for awhile back in the fabled 70s? This was a reprint from YOUR/ OUR own San Diego lawyer newspaper. IF you’d care to write something along the lines that you presented in your comment, you are most certainly welcome.
Hello! No, I never lived in OB but spent spent a lot of time there in the early ’70s. The Daily Transcript is A lawyers newspaper, not THE lawyer newspaper or MY lawyer newspaper. Its focus is on business, corporate and real estate areas, from the perspective of those who benefit the most from those laws. And okay, I will write an article!
Cool! Mika, just send it to our OB Rag email address: obragblog@gmail.com and thanks.
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