The Incredible Shrinking EEOC

incredible shrinking manThe U.S. Equal Employment Opportunity Commission (EEOC )  received 99,412 private sector workplace discrimination charges during fiscal year 2012 but determined that only 4.3 percent – or 1,800 cases – were based on “reasonable cause.”

That tiny number actually reflects a slight increase from 2011, when the EEOC found that 4.1 percent of cases (1,707 cases) were based on reasonable cause. This was the lowest number since 1998.

If the EEOC  concludes a case is not based upon reasonable cause, it will not  pursue the case. The charging party can still bring a private court action – if he or she has the money to pursue litigation and can find an attorney who will take an employment discrimination case in the face of a federal judiciary that is  hostile these types of cases.

The number of charges determined by the EEOC to have “reasonable cause” has steadily declined from a high of 12 percent in 2001, when the EEOC found that 3,012 cases were based on reasonable cause.

Does this indicate that more workers  are filing bogus charges against their employers? According to the EEOC, a finding of “reasonable cause” means the EEOC believes “that discrimination occurred based upon evidence obtained in investigation.” A finding of “no reasonable cause” means the EEOC found “no reasonable cause to believe that discrimination occurred based upon evidence obtained in investigation.”

Linguistics  notwithstanding, the decline in cases that the EEOC deems are based on ““reasonable cause” more likely reflects  the  EEOC’s changing priorities  in the face of budget cutbacks. The EEOC last year adopted a strategic plan to focus more upon systemic patterns of discrimination. Meanwhile, the EEOC is attempting to whittle down a massive backlog of more than 70,000 cases.

The EEOC reports that in 2012 it filed a total of 122 lawsuits, including 86 individual suits, 26 multiple-victim suits (with fewer than 20 victims) and 10 systemic suits

The EEOC’s legal staff resolved 254 lawsuits for a total monetary recovery of $44.2 million.The year-end data show that retaliation (37,836), race (33,512) and sex discrimination (30,356), which includes allegations of sexual harassment and pregnancy were, respectively, the most frequently filed charges.

The EEOC lost about nine percent of its staff as a result of budget cuts in the past two years, according to the American Federation of Government Employees (AFGE). Gabrielle Martin, president of AmericAFGE’s National Council of EEOC Locals, No. 216, warns  that threatened budget cuts in March would effectively cripple the EEOC and mean that “the United States would cease to have enforceable civil rights in the workplace.”

Overall, the EEOC  in 2012 secured monetary and non-monetary benefits for more than 23,446 people through administrative enforcement activities – mediation, settlements, conciliations, and withdrawals with benefits. The number of charges resolved through successful conciliation, the last step in the EEOC administrative process prior to litigation, increased by 18 percent over 2011.

The fiscal year runs from Oct. 1 to Sept. 30.

Chicago’s Innovative Effort to Stop Wage Theft

cityofbroadshoulders

The city of Chicago this month  became the second, and biggest, city to pass an ordinance addressing the problem of  wage theft.

The Chicago ordinance appears to be an innovative and potentially highly effective initiative to combat a  problem that disproportionately affects low wage workers and undocumented immigrants.

  The ordinance states any licensee that is in the business of debt collection must comply with federal and state wage and hour laws. It states that failure to comply with these laws  can result in the revocation of the company’s business license for at least four years.  The ordinance potentially covers most licensees, since most  companies  engage in debt collection in the ordinary course of business. This includes everything from licensed day care centers to hotels and beauty parlors.

 Last fall, the Broward County Commission in Florida passed an ordinance that allows employees who are owed $60 or more for work done in the county to turn to the county for help.  Before filing the complaint, however, the employee must write a letter to the employer outlining how much is owed. If the paycheck shows up within 15 days, the complaint wouldn’t be filed.

Epidemic

Wage theft is widely considered to be epidemic in the United States.

Aaccording to a report released last year by the Progressive States Network (PSN ) state laws are grossly inadequate to combat  “wage theft” by unscrupulous employers. Some states levy no fines at all for wage theft, according to the report, while most others invoke penalties smaller than a speeding ticket.

 There is, of course,  an overarching  federal law that prohibits wage theft – the Fair Labor Standards Act (FLSA) – but it largely relies upon voluntary compliance.

 The FLSA establishes minimum wage, overtime pay, recordkeeping, and youth employment standards affecting employees in the private sector and in Federal, State, and local governments. Covered nonexempt workers are entitled to a minimum wage of not less than $7.25 per hour and overtime pay at a rate not less than one and one-half times the regular rate of pay is required after 40 hours of work in a workweek.

 The FLSA is technically “enforced” by the Wage and Hour Division of the U.S. Department of Labor (DOL) but, as the PSN report notes, the DOL has only one enforcement agent for every 141,000 workers, down from one per 11,000 workers in 1941.

 The PSN estimates that more than 60% of low-wage workers suffer wage violations each week.  On average, the PSN reports, low-wage workers lose $51 per week to wage theft, or $2,634 per year. For low-wage workers, that amounts to 15% of their annual income, at average earnings of $17,616 per year.

Misclassification of Employees

Rogue employers often evade complying with wage and hour laws by classifying non-exempt employees as exempt under the FLSA and thus not entitled to overtime.

I once worked for an organizaton that misclassified administrative assistants  as exempt, requiring them to work long periods of uncompensated overtime at conferences and events. After years of this, one employee filed an anonymous complaint with the DOL. The organization was forced to pay affected employees who were  then on the payroll minimal amounts to supposedly compensate them for their loss.  This was an insignificant penalty for the employer,  considering the years of abuse that had occurred and the many uncompensated victims who were no longer working at the company.

To qualify for an  exemption from the FLSA, an employee must be paid on a salary basis at a rate not less than $455 per week, must perform work directly related to the  management or business operation of the employer, and must be responsible for exercising independent judgment or discretion with respect to matters of significance.

 Another way that employers circumvent the FLSA is to classify employees as independent contractors. This is not inherently illegal but it can be if the purpose of the independent contractor classification  is to deny the employee access to benefits and protections – such as family and medical leave, overtime compensation, minimum wage pay and unemployment compensation.

 In 2011, the DOL launched a “Misclassification Initiative” to address the problem with respect to independent contractors. Thus far, the states of Iowa, California, Colorado, Connecticut, Hawaii, Illinois, Louisiana, Maryland, Massachusetts, Minnesota, Missouri, Montana, Utah and Washington have signed memorandums of agreement to join the DOL initiative. The agreements will enable the DOL to share information and coordinate enforcement efforts with the participating states.

 Misclassification creates economic pressure for law-abiding business owners, who find it difficult to compete with those who are skirting the law. Employee misclassification also generates substantial losses for state Unemployment Insurance and workers’ compensation funds.

 Alderman Ameya Pawar spearheaded the Chicago effort to pass the wage theft ordinance is quoted as stating: “I sponsored this ordinance because it’s something that’s deeply personal to me.  I’ve worked with refugees in the past and I’ve seen how vulnerable populations have become victims to wage theft.”

Dance Over: College Must Pay

The dance is over for Marymount Manhattan College.

 The EEOC has announced that  Marymount, a private liberal arts cllege in New York City,  has settled a lawsuit filed by EEOC alleging that it refused to hire a choreography instructor for a tenure-track assistant professorship because of her age.

dancer The EEOC prosecution  appeared to be the first salvo by the EEOC in the war against rampant age discrimination in higher education.

 According to the EEOC’s suit, Marymount passed over a 64-year-old applicant for an assistant professorship in dance composition who had been working at Marymount, and instead hired a 38-year-old applicant. The suit charged that this violated the Age Discrimination in Employment Act (ADEA), which prohibits age discrimination against employees and job applicants who are age 40 or older.

 By the terms of the consent decree settling the suit, Marymount agreed to pay $125,000 to Patricia Catterson. Further, it agrees to comply with the requirements of the ADEA. The decree also requires monitoring and training on anti-discrimination law. The decree will last for four years.

Marymount initially selected Ms. Catterson and two other applicants as finalists for an assistant professorship in dance composition.  After determining that the  Ms. Catterson was the leading candidate,  Marymount’s search committee expanded its search to include the less qualified younger applicant as a fourth finalist because it considered her to be “at the right moment of her life for commitment to a full-time position.”

 New York District Director EEOC Kevin Berry said, “Under the law, age has no place in making hiring decisions – and tenure-track positions in academia are no exception.

Ms. Catterson had been teaching as an adjunct professor in MMC’s Dance Department for 10 years. She had also been on the faculty of The Juilliard School, Princeton University, and Manhattanville College.