EEOC Charge Data Released for 2014

On February 4th, the EEOC released its annual data relating to charges filed in Financial Year 2014 (Oct 1, 2013-Sep. 30, 2014).  This data relates to the private sector only.  The big news from the data is the nationwide number of charges filed dropped to 88,778.  Some of the drop was attributable to the federal government shutdown.

The greatest number of charges filed, as usual, was charges of workplace retaliation.  These charges accounted for 42.8% of all charges filed, the highest number ever!  Race discrimination was the second highest charge filed, 35%–steady with prior years.  Out of the 88,778 charges filed, the EEOC filed only 133 lawsuits on the “merits” (cases where it found cause and decided to sue on the employee’s behalf).  What that means is, the odds of the EEOC suing on your behalf are slim to none.  Of course, that does not stop an employee from bringing civil suit himself or herself.

When breaking down South Carolina EEOC charges filed, there were 1,118 charges filed within our state.  This was only slightly down from 1,168 charges filed in FY13.  Our charges accounted for only 1.3% of the nationwide total of charges filed.  The highest number of charges filed in South Carolina, like nationwide, were retaliation charges—483 filed in South Carolina.

What to make of all of this data?  The decrease in EEOC charges filed nationwide is likely an indicator of the improving economy.  I would expect that as the economy continues to improve, the number of charges filed will continue to decrease.  Despite the Supreme Court’s ruling in Nassar, retaliation claims still rule the day.  Furthermore, don’t count your chickens on the EEOC bringing suit on your behalf.  You will likely have to file suit yourself or hire a South Carolina employment law attorney to help you.

“What to Expect During Your Employment Law Dispute” – Part 5: Mediation

The Local Civil Rules for the U.S. District Court for the District of South Carolina require that all civil cases be mediated with prior to trial. As many, if not most, types of employment cases are litigated in the federal courts, there is a good chance that you will attend mediation at some point in the course of your employment case.

Mediation is an informal and confidential method of resolving employment disputes with the assistance of a neutral third party mediator. In the setting of employment litigation, the mediator is usually an attorney and it can be very beneficial if the mediator has knowledge and experience in the field of employment law. The mediator is not a judge or an arbitrator and his or her role in mediation is not to decide who is right or wrong or to make a ruling on the merits of the underlying case. The mediator’s role is to help the parties reach an agreement on how to resolve a case. Generally, there is no requirement that the parties resolve their case in mediation and, if the parties are unable to settle, the case then moves on to or proceeds with the next stage of litigation.

Generally, the mediation will begin with both parties and their counsel in the same conference room and with the mediator explaining the process. This explanation will usually include a discussion about confidentiality and will be followed by the parties signing a mediation confidentiality agreement, which basically requires the parties to keep all settlement discussions that occur during the mediation confidential. Agreements of this nature usually prohibit the parties from utilizing statements made in the mediation as a part of the case and assure each side that the mediator will not and cannot be called as a witness in any litigation.

What happens next in the opening portion of the mediation is really up to the mediator. Some mediators will ask each party to explain their side of the case. Some mediators will ask each party to state their proposed resolution of the conflict. Some mediators do not allow opening remarks by either side and put the parties and their counsel in separate rooms after explaining the mediation process. Some mediators begin the mediation with the parties in separate rooms and explain the process separately to each side rather than with the parties together as a group. Regardless of how the mediator chooses to begin the mediation, the parties will be placed in separate rooms after the mediation gets going and the mediator will meet with each side separately to discuss the strengths and weaknesses of the case and to encourage settlement and discuss the potential ways in which the case could be resolved. The mediation will proceed with the mediator privately discussing the case and discussing potential resolutions or offers with each side. The mediator will convey any such resolutions or offers that a party agrees with to the other side and so on.

If the mediator is able to resolve some or all of the case, the mediator will generally summarize in writing the terms upon which the parties were able to agree at mediation and have each side sign the same. Such informal, and often brief, mediation agreements are typically enforceable if they are signed by all parties and contain the basic terms of the settlement agreement reached at mediation. After the mediation, if the parties reach an agreement, they will usually have to finalize the agreement in a more formal and detailed written settlement agreement.

Mediation can be a great way to resolve employment disputes before or after litigation commences. In mediation, both parties have at least some control over the ultimate outcome of the case. Such is not usually the case when matters are resolved in court by a judge or a jury.

“What to Expect During Your Employment Law Dispute” – Part 4: Summary Judgment (The Mini-Trial)

Discovery has ended.  You have your documents, depositions have been taken, subpoenas have been answered and now it is time for both sides to make their arguments to the Court.  The summary judgment motion is a motion, typically made by the employer (although employees have been known to make them as well from time to time, especially on FMLA cases) that is filed with the Court asking the Judge to toss the employee’s court case out because the evidence does not show that any reasonable jury could find for the employee.  Basically, the employer asks the Court to say there is no chance at all that the employee could ever win at jury trial based on the evidence in the case. Because this is such a harsh result for the employee if the employer wins (it will end the case and the employee will lose), the standard is high and the employer must show that there are no genuine facts in dispute that support the employee’s claims.  But just because the standard is high, does not mean that courts do not often grant summary judgment to the employer – because they do and a large portion of the time.

In fact, there is a whole lot of research out there suggesting that summary judgment is being unfairly granted to employers in employment cases…but that is a post for another day.  If that happens, the employee can always appeal the decision to the 4th Circuit (located in Richmond, Virginia) but that is a long and hard road.

Procedurally, the employer will file their motion and the employee’s attorney will normally have about 2-3 weeks to file a reply.  These are very in-depth, long, and complicated motions.  Generally, each side will present their argument in a 35-page memo with many accompanying Affidavits, deposition excerpts, etc.  After both sides have had their chance to make their argument, the Court will consider the motions and this normally takes approximately 6 months in South Carolina.  During this 6 month period, nothing will happen and both sides will be patiently waiting for the written decision from the Court.  After the Court renders a decision, if it rules for the employer, the employee’s case is over and she loses.  The end.  However, if the employee is able to defeat summary judgment, the loss is normally catastrophic for the employer who is now faced with a looming jury trial.  Generally, that results in a larger settlement for the employee because the employer will now take the case more seriously.  However, some employers still will not resolve a case after they lose summary judgment and will seek to take the case to the jury.  Employers have a right to do so but at a potential for great loss.  Almost all federal employment statutes provide for attorney’s fees if the employee wins. Employment cases are very expensive to try and employers recognize this.  Also, jury verdict statistics do not lend in the employer’s favor.  In a nutshell, summary judgment will either make or break the employee’s case.  If the employee survives summary judgment, then she is well on her way.

“What To Expect During Your Employment Law Dispute” – Part 3: Discovery

This is part 3 of our 5 part series.  The “discovery” process is the longest part of any lawsuit and can sometimes take up to 1 year to complete.  It is called “discovery” because generally each side is “discovering” what the other side knows about the case by asking questions and requesting documents.  The employee, generally, does not have as many documents as the employer who keeps the personnel file and the other HR related documents.  Normally, the large part of discovery is the employee requesting copies of the documents from the employer, reviewing them, and trying to figure out how each document fits into the case.  Employers are required to produce the documents and cannot destroy them or they could be sanctioned by a court.  Emails must also be produced if they are relevant to the case.

Discovery also includes the taking of depositions.  The employee is almost always deposed by the employer’s attorney.  What this means is the employee must come to the employer’s attorney’s office, generally for a day, and sit down and answer questions under oath just like if you were at trial.  The answers are recorded by a court reporter and the employee is bound to their answers.  The employee will have their own attorney present with them.  The employee also has the right to take depositions of key witnesses, coworkers, supervisors, and managers in the same way.  The answers to questions derived during depositions can serve as key evidence for later in the case.  Without depositions, it is difficult for either side to build a case.  Many times employees are nervous before their deposition is taken.  This is a natural reaction.  However, good preparation with your attorney will go far.  Once discovery is over, the case will move into the next stage, the summary judgment (or “mini-trial”) phase, which will be discussed in Part 4.

Falls Legal Wins Jury Verdict for $650,000.00

On December 5, 2014, a 10-person unanimous Charleston Federal Court jury returned a $650,000.00 verdict in favor of an employee who is a client of the firm. The verdict included $150,000.00 in compensatory damages and $500,000.00 in punitive damages. The verdict was secured against one of the largest employers in the State of South Carolina, Roper St. Francis Hospital (Roper). The firm’s client, a nurse, was found to have been retaliated against in violation of Title VII for complaining of national origin/race discrimination due to the fact she is from Chile, South America.  The trial lasted one week and involved testimony of 12 witnesses.

What To Expect During Your Employment Law Dispute – Part 2: Filing A Lawsuit

Welcome to Part 2 of our six part series on “What to Expect During Your Employment Law Dispute.” Assuming you have received your “golden ticket” from the EEOC, discussed in Part 1, (and remember that some claims do not require you to file with the EEOC such as FMLA claims, wage claims/overtime issues, and breach of contract cases) it is now time to file your official lawsuit and get things started.  Remember, you only have 90 days to file a lawsuit if you received a Notice of Right to Sue from the EEOC.  Those 90 days will pass quickly and you do not want to wait until the last minute.  If you already have an employment law attorney, great!  If you don’t, it is time to start calling law firms to see if someone is willing to represent you in filing your case.  If you cannot find a lawyer to represent you, you are also allowed to file your own lawsuit pro se (the legal word for representing yourself without an attorney).

In order to officially file your lawsuit, you must file a Summons and Complaint in either South Carolina state or federal court.  You can call the Clerk of Court’s office for assistance if you do not have an attorney.  They will help you fill out the appropriate paperwork.  The filing fee in state court is $150.00 and the filing fee in federal court is $400.00.  If you are represented, your attorney can advise you on the differences between filing in state or federal court.  Generally, if you file in state court the employer will “remove” (or transfer) the case to federal court and you will end up litigating in federal court anyway.  After you file the case in the Clerk of Court’s office, you will have to “serve” the lawsuit on the employer.  If you have an attorney, your attorney will handle this for you.  If you do not have an attorney, the Clerk of Court’s office will instruct you how to serve the documents on your employer.

After your employer receives the Summons and Complaint, it will have 21 days (in federal court) or 30 days (in state court) to file an Answer.  Attorneys will sometimes grant each other extensions if requested timely.  An Answer is a legal document where the employer generally denies most of the allegations and files its appropriate defenses to your claims.  Employers also have the option to file a Motion to Dismiss instead of filing an Answer.  If an employer files a Motion to Dismiss, you will have to defend against the motion.  After the employer files its Answer or the Motion to Dismiss is resolved, the Court will generally enter a Scheduling Order.  The Scheduling Order is a list of due dates for certain elements of your case that the lawyers must comply with.  Your lawyer and the employer’s lawyer will have a telephone conference to discuss the due dates and other elements of your case.  Thereafter, your case will enter the “Discovery” phase, which will be discussed in Part 3 of the blog series.  Always contact a South Carolina employment lawyer to assist you with your legal questions.

Upcoming Series: What To Expect During Your Employment Law Dispute – Part 1: EEOC

For the next several series of blog posts, I am going to be discussing what you should expect to happen after you hire a lawyer for your employment law dispute (excluding federal employees).  The series will be divided into six parts:

Part 1:  EEOC Proceedings

Part 2:  Filing a Lawsuit

Part 3:  The Discovery Process

Part 4:  Summary Judgment- The “Mini-Trial”

Part 5:  Mediation and Alternative Dispute Resolution

Part 6:  Trial

Today we will be talking about the EEOC process.  Most employment law disputes (with some exceptions such FMLA suits, pay/overtime suits, Equal Pay Act suits, and state based claims for breach of contract, violation of public policy, or state torts) must be investigated by the EEOC before you are even allowed to file a lawsuit in court.  If you attempt to file a lawsuit without going through the EEOC first, your lawsuit will likely be dismissed for lack of jurisdiction.  The EEOC (Equal Employment Opportunity Commission) is a federal agency tasked with investigating complaints of workplace discrimination based on race, color, national origin, religion, sex (including pregnancy discrimination), age, disability, genetic information, and retaliation for reporting/participating/opposing a discriminatory practice.  Assuming your employer has a minimum of 15 employees (or 20 for age complaints) you must make a complaint to the EEOC within 180-300 days of the discriminatory action for your complaint to be timely.  If you wait beyond this time period, your complaint can be dismissed for untimeliness.  It is important to take prompt action if you feel you are the subject of workplace discrimination or retaliation based on one of the above criteria.

The EEOC has a very comprehensive website that explains the process in detail and provides a wealth of information on filing a charge.  You can click here for information on how to file a charge of discrimination or retaliation with the EEOC.

You can call your local EEOC office to get more information or to get the complaint process started on the telephone.  Some lawyers will also assist you with the EEOC process if they agree to represent you.  Once you have filed your initial complaint and the EEOC opens a file for your charge, your employer will be notified that you have filed a charge and will be given a chance to file their “Position Statement.”  The employer’s Position Statement is their place to tell the EEOC why they believe the way they treated you was not unlawful.  Employees are not typically given a copy of the Position Statement until after the investigation is complete and only after a Freedom of Information Act (“FOIA”) request is sent in.  If an attorney is representing you, he or she will likely send a FOIA request on your behalf after the investigation is complete.

After the employer files its “Position Statement,” the EEOC will send a notice to both sides inviting them to participate in an EEOC mediation (there is no mediator charge for an EEOC mediation).  The EEOC mediation is not required but can be beneficial in certain circumstances.  If either party chooses not to participate, then no mediation will occur.  If both parties agree to mediation, the mediation will be scheduled with an EEOC mediator.  The EEOC mediator is typically a person employed by the EEOC that may or may not be an attorney.  They will set up a time to meet (typically a 1/2 day) in a neutral location and all parties will meet at the prescribed time.  Normally, the mediation will start with everyone in the same room where the attorneys will give a brief opening statement.  After opening statements, the parties will be separated into different rooms and the mediator will shuttle back and forth between the rooms to see if a resolution can be achieved.  If the mediation is successful, the case ends.

If mediation is not successful, your file will be returned to the EEOC investigator for further investigation.  The EEOC investigator will normally call the employee (and his or her attorney if they have one) and conduct a conference call to get some more facts.  After the EEOC concludes the investigation, they will typically issue a “finding.”  The EEOC “finding” could include a finding of discrimination or of non-discrimination. Either way, the “finding” will be accompanied by a “Notice of Right to Sue.”  The Notice of Right to Sue will give no more than 90 days to file your lawsuit in court.  Your Notice of Right to Sue is the golden ticket to bring your case in court.  Without your golden ticket, you cannot file a lawsuit.  It is important that if you do not have an attorney during the EEOC process but plan to hire one to file a lawsuit in court, you start calling employment lawyers immediately after receiving your Notice of Right to Sue.  It can take some time to find an employment law attorney that can help you with your case and get your lawsuit filed within the 90 day timeframe.

The entire EEOC process can last about one year if mediation is not successful.  The EEOC has a large backlog to get through and attorneys cannot speed the process up.  In Part Two of this blog series, I will discuss what happens after you have your Notice of Right to Sue and move forward to filing your lawsuit in federal or state court.