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Labor, Employment and Complex Litigation Specialists

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FLSA, ADA, & Title VII Retalliation Lawsuits Continue to Soar

According to statistical figures from the federal courts, civil litigants filed approximately 7,700 Fair Labor Standards Act (“FLSA”) cases during calendar year 2018. For comparison purposes, just 4,000 FLSA cases were filed in 2005, the first time the FLSA case load ever reached 4,000 cases in a year. Part of this increase is due in part to plaintiffs, plaintiffs’ attorneys, and the government being both more familiar with workers’ rights under the FLSA and more aggressive in asserting those rights. The vast majority of FLSA lawsuits focus on alleged uncompensated or miscalculated overtime, uncompensated “off the clock” work, and misclassification of employees. The growth of these lawsuits continues to present challenges, particularly given the FLSA’s 1930s- and 1960s-era statutory and regulatory language that is increasingly ill-suited to 21st Century workplaces.

On the other hand, the number of charges filed with the U.S. Equal Employment Opportunity Commission (“EEOC”) dropped significantly during in 2017, the Commission’s last fiscal year for which statistical data is available. According to data released by the EEOC, approximately 84,000 charges of discrimination were received during the government’s 2017 fiscal year, which represents the lowest total since 2007. Notably, 48.8% of all charges filed during FY 2017 contained an allegation of retaliation (and all time high), while allegations of race and disability discrimination were made 33.9% and 31.9% (also an all time high) of the time, respectively.

What do these statistics mean for employers? With regard to the EEOC-related data, while employers should continue their efforts to eliminate the conditions that give rise to EEOC charges overall, it is clear that more must be done to cultivate and maintain an atmosphere and culture of anti-retaliation in the workplace, as well as to increase awareness of how to handle disability-related accommodations. With regards to retaliation and ADA-related issues, such steps would include, among other things, responding promptly to internal discrimination complaints and accommodation requests, assuring the complainant that the matter will be taken seriously, engaging in an “interactive” process with employees who request reasonable accommodations (including leave), implementing interim measures designed to reduce the likelihood of confrontations or other incidents that may be perceived as retaliatory, ensuring that the respondent and others are reminded that retaliation is strictly prohibited, and keeping lines of communication with the complainant/requestor open so that instances of perceived retaliation can be addressed promptly. With regard to the FLSA-related data, employers should regularly audit their pay practices, update job descriptions, and consult periodically with experienced employment counsel to ensure that employees are being properly classified and compensated and that accurate records are being maintained. The new DOL rules regarding the “white collar” exemptions that are expected to take effect in January 2020 afford an excellent opportunity for such an audit.

Should you have any questions about your employment policies or practices, please contact an Elarbee Thompson attorney.