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Title VII Retaliation, FLSA Lawsuits Continue to Soar

According to statistical figures from the federal courts, civil litigants filed approximately 9,000 Fair Labor Standards Act (“FLSA”) cases during calendar year 2015.  For comparison purposes, just 4,000 FLSA cases were filed a decade ago in 2005, the first time the FLSA case load ever reached 4,000 cases in a year.  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 1930’s- and 1960’s-era statutory and regulatory language that is increasingly ill-suited to 21st Century workplaces.

The number of charges filed with the U.S. Equal Employment Opportunity Commission (“EEOC”) also rose during the Commission’s last fiscal year.  (The fiscal year runs from October 1 to September 30.)  According to data released by the EEOC, approximately 90,000 charges of discrimination were received during the government’s 2015 fiscal year, up from the 2014 total, which represented a near-decade low.  Notably, 44.5% of all charges filed during FY 2014-15 contained an allegation of retaliation, while allegations of race and disability discrimination (up nearly 6% in 2015) were made 34.7% and 30.2% 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 non-retaliation in the workplace. Such steps would include, among other things, responding promptly to internal discrimination complaints, assuring the complainant that the matter will be taken seriously, 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 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 and 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 later this year afford an excellent for such an audit.

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