What should I do if I'm being retaliated against at work?

I get a lot of questions from readers on all kinds of topics. For a myriad of reasons, it would not be appropriate for me to answer a specific individual's question or to otherwise provide legal advice online. However, I can address general areas of concern in a general way. While I hope that this information is useful, be warned that you absolutely should NOT consider any information you read here to be legal advice as to your particular situation. Legal analysis is very fact and geographically specific. If you have a legal question, my best advice is that you contact an attorney who specializes in such matters in your area. 

After reporting to HR about my manager with the company groping me, the HR representative filed no report and called the offender in the office to have him apologize to me. No other action was taken. Now I am being investigated and harassed at work and I don't understand why. What should I do?

While not every employer handles internal reports of misconduct this way, situations such as this are, sadly, something I hear about all too frequently from employees who come to see me. An employee follows the rules and does what he/she is supposed to do by reporting discrimination or harassment to HR, only to then be further harassed and retaliated against in response to his/her report. Often this retaliation comes in the form of management "keeping book" or noting every error or perceived mistake made by the reporting employee in an effort to build a record for termination. Sometimes the retaliation is much more severe. I have had cases in which employees were moved to a less desirable office location, passed over for promotions, accused falsely of misconduct, etc. Such a situation can make going to work seem almost unbearable. And in fact, this is often the goal of the employer -  to make your work life so terrible that you feel you have no choice but to quit.

So what can an employee in this type of situation do? Here are some suggestions:

1. Document Everything in Writing - Your boss or HR representative might be saying all the right things and telling you everything is fine but those oral statements are easily forgotten once you have been fired and you are later trying to prove what was said. Your best bet: document everything in a way that is at least somewhat verifiable. If you need to report misconduct, harassment, or retaliation do it via a written letter or email. In either case, print yourself a copy of what you sent and take it home for safekeeping. If you have an important phone call or meeting with HR or your boss in which you outline the harassment and they promise to take some action, document it in a follow-up email to the HR rep in which you thank the rep for meeting with you and restate your understanding of what was said by both parties. Again, print yourself a copy and take it home.

   • But Chris...can't the HR Rep later deny that my email correctly summarizes what was said? -- Sure, I suppose they could try to say that. But everyone (including the jury) will wonder why they didn't reply to your email back when it happened to correct your summary.

2. Don't Make Unforced Errors - You know they are watching every move you make just hoping you screw up so they can fire you. So don't help them. Don't be late to work. Do good work. Get your reports in on time. Don't gossip and tell co-workers what a big jerk your boss is. etc. These are unforced errors and they will come back to bite you in the end.

   • What if your boss doubles your workload to make it impossible for you to meet quota? -- This happens a lot so don't be surprised if it happens to you. Don't let it make you so angry that you start acting out and thereby give the boss a legitimate reason to fire you. That's playing into his/her hands. Instead, do the very best job you can and document the retaliation by emailing HR to let them know what is happening (don't forget to print a copy and take it home) and then do your best to comply with the new work requirements. Keep your boss informed on your status by regularly emailing (keep a copy). Remember, in addition to actually trying to be a good employee under difficult circumstances, you are building the paper trail you and your lawyer may need later to prove you were trying to be a good employee under the circumstances.

3. Consider Filing a Charge with the EEOC and/or Visiting with a Lawyer - Know this: Once retaliation starts, it rarely gets better on its own. If a boss is retaliating against an employee, it signifies a type of "line in the sand". That boss has declared (perhaps only to himself or herself) that you have got to go...period. So don't beat yourself up when nothing you do to placate your boss seems to work. It may just be time to go outside for help. One choice is filing what is called a "Charge" with the Equal Employment Opportunity Commission ("EEOC"). Note that the EEOC only deals with EEO types of issues (race, sex, religion, disability, national origin) and retaliation if (and only if) you are being retaliated against due to an internal complaint that you were harassed or discriminated against based on one of those EEO categories. Another option that you really should consider is visiting with a qualified employment lawyer. If you have not been fired yet then your case might not be one that an employment lawyer can agree to take on a contingent basis. However, most employment lawyers will agree to a fee-based consultation, during which you can explain your situation and the lawyer gives you advice regarding what protections you might have under applicable law and what steps you need to take to best protect your interests. While legal fees vary greatly based on geography, you should expect to pay between $100-$500 for an hour of the attorney's time. In the grand scheme of things, this is a good value for the information you will receive.

   • How do I find a good lawyer to consult? -- An excellent question. To be honest, it isn't always easy. There are a lot of lawyers out there but few of them specialize in representing employees in employment-related disputes. Here are some sources and articles to help get you started:

     • How to Hire An Employment Lawyer

     • Texas Employment Lawyers Directory (for Texas residents)

     • National Employment Lawyers Directory (for those outside of Texas)

Tort Reform Is A Lie: Hot Coffee Still Being Used to Mislead

Here's the lie:

The lies used to support corporate efforts to continue to restrict regular people's access to the courthouse are powerful. And, sadly, they work. Routinely, potential clients who are sitting in my office will reference the famous McDonalds "Hot Coffee" case and try to assure me that their case isn't like the Hot Coffee case.  Their case is real. 

Here's the thing, the story everyone knows about the Hot Coffee case is a myth. It's a lie pushed by big business and their tort "reform" groups to poison the minds of potential jurors and make it harder for those who have been legitimately injured to received fair compensation. 

So, What Happened?:

In 1992, 79-year-old Stella Liebeck bought a cup of takeout coffee at a McDonald’s drive-thru in Albuquerque and spilled it on her lap. She sued McDonald’s and a jury awarded her nearly $3 million in punitive damages for the burns she suffered.

Before you hear all the facts, your initial reaction might be "Isn’t coffee supposed to be hot?" or "McDonald’s didn’t pour the coffee on her, she spilled it on herself!" But that would be before you hear all the facts.

Here are the facts:

Mrs. Liebeck was not driving when her coffee spilled, nor was the car she was in moving. She was the passenger in a car that was stopped in the parking lot of the McDonald’s where she bought the coffee. She had the cup between her knees while removing the lid to add cream and sugar when the cup tipped over and spilled the entire contents on her lap.

The coffee was not just “hot.” It was very dangerously hot. McDonald’s policy was to serve it at an extremely hot temperature that could cause serious burns in seconds. Mrs. Liebeck’s injuries were far from minor. She was wearing sweatpants that absorbed the coffee and kept it against her skin. She suffered third-degree burns (the most serious kind) and required skin grafts on her inner thighs and elsewhere. (See the video above for pictures.)

Importantly Mrs. Liebeck’s case was far from an isolated event. McDonald’s had received more than 700 previous reports of injury from its coffee, including reports of third-degree burns, and had paid settlements in some cases.

Mrs. Liebeck offered to settle the case for $20,000 to cover her medical expenses and lost income. But McDonald’s never offered more than $800, so the case went to trial. The jury found Mrs. Liebeck to be partially at fault for her injuries, reducing the compensation for her injuries accordingly.

But the jury’s punitive damages award made headlines — upset by McDonald’s unwillingness to correct a policy despite hundreds of people suffering injuries, they awarded Liebeck the equivalent of two days’ worth of revenue from coffee sales for the restaurant chain. Two days. That wasn’t, however, the end of it. The original punitive damage award was ultimately reduced by more than 80 percent by the judge. And, to avoid what likely would have been years of appeals, Mrs. Liebeck and McDonald’s later reached a confidential settlement for even less than that.

Here is just some of the evidence the jury heard during the trial:  

• McDonald’s operations manual required the franchisee to hold its coffee at 180 to 190 degrees Fahrenheit.

• Coffee at that temperature, if spilled, causes third-degree burns in three to seven seconds.

• The chairman of the department of mechanical engineering and biomechanical engineering at the University of Texas testified that this risk of harm is unacceptable, as did a widely recognized expert on burns, the editor-in-chief of the Journal of Burn Care and Rehabilitation, the leading scholarly publication in the specialty.

• McDonald’s admitted it had known about the risk of serious burns from its scalding hot coffee for more than 10 years. The risk had repeatedly been brought to its attention through numerous other claims and suits.

• An expert witness for the company testified that the number of burns was insignificant compared to the billions of cups of coffee the company served each year.

• At least one juror later told the Wall Street Journal she thought the company wasn’t taking the injuries seriously. To the corporate restaurant giant those 700 injury cases caused by hot coffee seemed relatively rare compared to the millions of cups of coffee served. But, the juror noted, “there was a person behind every number and I don’t think the corporation was attaching enough importance to that.”

• McDonald’s quality assurance manager testified that McDonald’s coffee, at the temperature at which it was poured into Styrofoam cups, was not fit for consumption because it would burn the mouth and throat.

• McDonald’s admitted at trial that consumers were unaware of the extent of the risk of serious burns from spilled coffee served at McDonald’s then-required temperature.

• McDonald’s admitted it did not warn customers of the nature and extent of this risk and could offer no explanation as to why it did not.

After the verdict, one of the jurors said over the course of the trial he came to realize the case was about “callous disregard for the safety of the people.” Another juror said “the facts were so overwhelmingly against the company.”

That’s because those jurors were able to hear all the facts — including those presented by McDonald’s — and see the extent of Mrs. Liebeck’s injuries.

But that's not the story that the public has heard. Tort reform advocates lied about the facts of the case and the fake story gained traction. It went viral. So viral that now this story is what is most often cited by jurors and others when explaining why they don't trust lawyers, why they don't like lawsuits, and why they think plaintiffs are just out for a quick buck. 

And it's all a lie.

If you want to read more, start here.

Can You Trust Your Company's HR Department?

A fellow blogger has a post out this week titled "Who Do You Report Harassment To If the Harasser Is the CEO?".  It is a thoughtful article and it makes the excellent point that HR for every company needs to bake into their policies a method by which an employee can internally report sexual harassment being committed by the CEO or owner of a company without risk of retaliation. I think that is an excellent goal to strive for and I hope that all HR departments set that as a goal.  There is only one problem with the premise of the article. 

The effort will almost certainly fail. 

Michael Corleone: "C'mon Frankie... my father did business with HR, he respected HR."

Frank Pentangeli: "Your father did business with HR, he respected HR... but he never trusted HR!"

HR is, in my opinion, possibly the most challenging role for any manager to do and do well. It is arguably designed to fail. The problem is obvious: HR serves two masters. On the one hand, HR is designed to serve as a helpful ombudsman to employees. To assist employees who are being mistreated. To conduct thorough investigations and correct inappropriate behavior against employees. On the other hand, HR is required to defend management against accusations of unlawful employment practices. HR is usually directly involved in the termination decisions that lead to EEOC filings. HR is then in charge of or at least heavily involved in drafting the company's defensive statement of position filings, arguing that the company is blameless. Thus, the very department that an employee is supposed to trust with his or her career and feel comfortable making a complaint to is the same department that will be spearheading the fight against the employee when it all goes south. 

What this means in most companies is that, no, you cannot trust HR to help you. While many HR officers have their hearts in the right place when they start working in the field, they can't help but know who is responsible for signing their paychecks. Hint: it's not the employee bringing a complaint against a member of management.  

So, should you bring complaints to HR? Yes, you should. In fact, in many cases you are legally required to do so or you risk waiving any claims you may have against the company for the discrimination or harassment you are reporting. Just don't assume that HR's only role is to help you. Because it isn't. While HR may be trying to assist you they are also assessing corporate risk, documenting your complaint in a way that will assist the company in defending against your complaint, and looking for ways to satisfy the demands of management. 

Here are a couple of quick tips: 

1. Make all reports in writing. When push comes to shove down the road, HR is liable to either not "remember" you made a complaint or to remember it substantially differently than you do. Putting your report in writing is the only way to prove you made a complaint, when you made it, and to whom the complaint was made.

2. You know that written report from number 1, above? KEEP A COPY. A written complaint does you know good if you send the only copy to HR. It might...you know...get lost.

3. Consider going outside the organization to the EEOC. If your complaint involves EEO-based (age, sex, race, religion disability, color) discrimination or harassment then consider making a complaint to the EEOC sooner rather than later. There will be little question that a report to the EEOC is protected activity under the law. This gives you a somewhat higher level of protection from retaliation than if you merely report internally.

4. Consult with an employment lawyer. If you are in a situation in which you feel you need to make a complaint against management then, make no mistake, you job IS at risk. Start looking for a qualified employment attorney who represents employees. Be warned, in many parts of the country there aren't that many who lawyers who specialize in representing employees. So start looking before you need one. And don't expect such a lawyer to visit with you for free. This is not a simple car accident case and you aren't looking for a PI lawyer who can take your case on a contingent fee basis. Employment law is very specialized and contingency fees are generally not available for consulting services. If you find a qualified lawyer to advise you, however, it is money well spent.

Bottom line: Yes, you should report harassment or discrimination internally to your company's HR department. But that doesn't mean you should blindly trust the HR department. Understand that they serve two masters and protect yourself accordingly.  

Buc-ee’s Sues Former Employee for Violating Retention Agreement / Non-Compete

Story in the HoustonPress reports a former employee of the popular Buc-ee's convenience store chain is being sued for more than $60,000.00 for allegedly violating what is called a retention agreement. 

The employee in question, Kelly Rieves, was hired by the store as an assistant manager in Cypress, Texas for total compensation of about $55,000. She was hired as an at-will employee, meaning that the company could fire her for any reason at any time. But Buc-ee’s required her to sign an employment contract that is uncommon in the convenience store industry. It's called a "retention agreement". 

What is a "Retention Agreement"?

The contract Rieves signed divided her pay into two categories, regular pay and “retention pay." The amount allocated to "retention pay" accounted for approximately one-third of her total compensation. The contract allowed the store to recoup the retention pay should she fail to remain employed for a full 48-month term. The contract also required Rieves to give six months' notice before leaving. This is despite the fact that the company maintained the right to terminate Rieves prior to the end of the period. (The contract may or may not have contained notice provisions in favor of the employee that I am not privy to but it would not be required to have such provisions under Texas law.)

Three years later, Rieves decided to leave her job a year or so before her contract expired. We don't know her reasons but we do know she tried to work it out with the company first but her boss refused to let her out from under the contract. So she quit. 

In response, Buc-ee’s sued her for the full amount of the retention pay she earned during her three years with the company -- an amount over $67,000.00.

Are Retention Agreements Legal?

In a word, yes. If drafted properly, retention agreements can be enforced against employees in Texas. However, it is highly unusual to see such an agreement used with anyone other than high-level company executives. 

In the case of Ms. Rieves, a trial court ruled in favor of the company last fall. And it gets worse. The Court also ruled that, in addition to the original sum she owed under the contract, she was also responsible for the company’s legal fees plus interest on the retention pay since she left Buc-ee’s. 

The total the company is now seeking from Rieves approaches $100,000. The matter is currently on appeal. 

The Moral of the Story.

Don't sign an employment contract without having an attorney review it for you. Don't sign an arbitration agreement without having an attorney review it for you. Just don't! 

As a lawyer who primarily represents employees, I spend a fair amount of my time trying to help workers get out of contracts that they never should have signed in the first place. It is an uphill battle. 

The time to negotiate or get changes to employment-related contracts is BEFORE you sign them. Companies do not necessarily have your best interests at heart. You need to understand the implications of what you are signing BEFORE you sign it. A couple hundred dollars spent on lawyer contract review may seem like a lot when you are excited about starting a new job, but compared to the economic havoc that can be caused by signing a contract you don't understand, it's peanuts. 

Get the information you need to protect yourself and your family. It may be the best money you ever spend.

More: Read the entire story from the HoustonPress here.

Another Court Follows Wallace Decision - FRCP 9(b) Fraud Pleading Standard Does Not Apply to SOX Whistleblower Cases

As previously written about here, I had the privilege this year of being a part of the team of lawyers representing the plaintiff in Wallace v. Tesoro. The opinion issued in favor of my client by the Fifth Circuit in that case created very positive law for SOX whistleblowers around the country. 

This past week I learned of a recent decision from the District of Connecticut in a Sarbanes-Oxley whistleblower retaliation case that adopted the Wallace pleading standard for SOX whistleblowers. The case serves to underscore the broad scope of protected conduct under SOX. In Wiggins v. ING, the court held that the heightened Rule 9(b) pleading standard for fraud claims does not apply to SOX retaliation claims and a whistleblower can plead that she had a reasonable belief that her employer violated one of section 1514A’s enumerated fraud provisions without specifically alleging that she believed that the employer’s conduct satisfied all of the elements of the federal statute/SEC rule that was allegedly violated.

In Wiggins, the Plaintiff worked as an operations consultant at an insurance company. She alleged that she disclosed irregularities in the processing of terminated retirement plans that reflected a lack of compliance with federal securities laws, including “frequent inaccuracies in market value assessments on retirement plans that were being terminated and sent to other providers, incorrect and inconsistent application of deferred sales charges, and deliberately failing to provide identified “problem” files for quarterly auditing procedures.” She alleged that the company terminated her employment in response to her whistleblowing.

Court Holds: Rule 9(b) Does Not Apply to SOX Whistleblower Claims

The company argued that Ms. Wiggins’ complaint should be dismissed because it alleged she had blown the whistle about fraudulent activities but did not allege said fraud with the heightened particularity required under Rule 9(b) for pleadings in which a defendant is sued for fraud.

The court rejected the company's argument and concluded that the “reasonable belief” standard set forth in the statutory text obviates any requirement for a SOX whistleblower to prove actual fraud:

ING’s argument overlooks the fact that section 1514A(a)(1) “protects an employee who `reasonably believes’ that conduct violates an enumerated statute.” Wallace v. Tesoro Corp., 796 F.3d 468, 480 (5th Cir. 2015). As such, there is room for a plaintiff to maintain a SOX whistleblower claim under Section 1514A, assuming he has satisfied the other pleading requirements, “even if the [complained of] conduct turns out not to be fraudulent.” Id.; see also Guyden v. Aetna, Inc., 544 F.3d 376, 384 (2d Cir. 2008) (“a whistleblower need not show that the corporate defendant committed fraud to prevail in her retaliation claim under § 1514A”). Because section 1514A protects the employee who acted under a reasonable belief that fraud was occurring — rather than protecting only those employees who report activity that is, in fact, fraudulent —”Federal Rule of Civil Procedure 9(b) does not apply because [Wiggins] brings a retaliation claim based on his reasonable belief of fraud rather than a claim necessitating proof of fraud.” Jin Huang v. Harman Intern. Industries Inc., Civil Action No. 3:14-cv-1263-VLB, 2015 WL 4601047, at *2 n. 3 (D. Conn. July 29, 2015); see also Wallace, 796 F.3d at 480 (“Although [the defendant] maintains that dismissal can be affirmed for failing to satisfy Rule 9(b), it is plain from the rule’s text that it does not apply to this [SOX] retaliation suit”). Thus, ING’s argument that the Amended Complaint must be dismissed because it does not meet the heightened pleading standard of Rule 9(b) is without merit, because SOX whistleblower claims do not need to be plead in accordance with this heightened standard.

The court went on to state that “a SOX whistleblower plaintiff can state that she had a reasonable belief that her employer violated one of section 1514A’s enumerated provisions, without specifically alleging that she believed that the employer’s conduct satisfied all of the elements of the federal statute/SEC rule that was allegedly violated.” In addition, the court noted that “in order for a SOX whistleblower plaintiff to allege that she reasonably believed that her employer was violating one of the enumerated provisions, the plaintiff must allege that she believed, at least approximately, that her employer’s actions satisfied the elements of the enumerated provision allegedly violated.”

Wiggins follows the Fifth Circuit's holding in Wallace, of broadly construing SOX protected whistleblowers and refusing to impose a heightened standard of objective reasonableness. This is important because it makes it much more difficult for an employer to seek dismissal of a SOX whistleblower case at the pleading stage on a motion to dismiss.

Hat Tip: Jason Zuckerman

Fifth Circuit Reinstates SOX Whistleblower Claim Against Tesoro Corp.

A unanimous panel of the Fifth Circuit U.S. Court of Appeals issued a decision last Friday reinstating Plaintiff Kevin Wallace’s Sarbanes-Oxley Act (SOX) whistleblower claim against Tesoro Corp. 

Wallace worked for the petroleum company Tesoro as Vice President of Pricing and Commercial Analysis. He discovered structural flaws in Tesoro’s accounting system that garbled important financial results and tax reporting used by management, the Board of Directors, and Tesoro’s public filings. Wallace confirmed his findings with company experts and reported them internally. On March 12, 2010, Wallace reported internally that he was being retaliated against by management. He was fired within hours of this report.

The district court had previously dismissed the case based on several procedural motions filed by Tesoro. Tesoro argued that the case needed to be plead pursuant to FRCP 9(b)'s strict fraud pleading requirements. Tesoro also argued that the lawsuit raised factual issues that had not been presented with particularity to OSHA (the administrative agency charged with conducting initial investigation into SOX charges).

The Fifth Circuit reversed the dismissal and remanded the case back to district court for further proceedings and discovery. In rejecting Tesoro's arguments, the Court stated:

The requirements of Rule 9(b) show how poorly it would work as a benchmark for reasonable belief that fraud is occurring. “At a minimum, Rule 9(b) requires allegations of the particulars of time, place, and contents of the false representations, as well as the identity of the person making the misrepresentation and what he obtained thereby.” Benchmark Elecs., Inc. v. J.M. Huber Corp., 343 F.3d 719, 724 (5th Cir. 2003). But an employee who is providing information about potential fraud or assisting in a nascent fraud investigation might not know who is making the false representations or what that person is obtaining by the fraud; indeed, that may be the point of the investigation. Leaving those employees unprotected would have grave consequences for the statutory scheme of employee protection embodied in § 1514A and would do so in a way that appears completely unrelated to whether a belief actually is reasonable.

SOX was enacted as a reaction to a number of major corporate and accounting scandals, including Enron, and Worldcom. The law protects employees from retaliation for engaging in protected activity, which is defined as:

"any lawful act done by the employee to provide information, cause information to be provided, or otherwise assist in an investigation regarding any conduct which the employee reasonably believes constitutes a violation of section 1341 [mail fraud], 1343 [wire fraud], 1344 [bank fraud], or 1348 [securities fraud], any rule or regulation of the Securities and Exchange Commission, or any provision of Federal law relating to fraud against shareholders . . ."

The undersigned is counsel for Mr. Wallace, co-counseling with San Antonio attorney Alex Katzman and Washington D.C. attorney Richard Renner. The U.S. Department of Labor, Office of the Solicitor of Labor, participated with an amicus brief asking the Fifth Circuit to reverse.

Download: Wallace v. Tesoro Corp., No. 13-51010 (5th Cir. 7-31-2015).

EEOC Begins a Rollout of New Online Charge-Handling System

ACT Digital Pilot Program Allows Online Interaction With Employers

Last week the EEOC announced that 11 of its 53 offices will begin a pilot program called ACT Digital to digitally transmit documents between the EEOC and employers regarding discrimination charges. This is the first step in the EEOC's move toward an online charge system that will streamline the submission of documents, notices and communications in the EEOC's charge system. This system applies to private and public employers, unions and employment agencies.

The EEOC receives about 90,000 charges per year, making its charge system the agency's most common interaction with the public. The EEOC's ACT Digital initiative aims to improve customer service, ease the administrative burden on staff, and reduce the use of paper submissions and files.

The first phase of ACT Digital allows employers against whom a charge has been filed to communicate with the EEOC through a secure portal to download the charge, review and respond to an invitation to mediate, submit a position statement, and provide and verify their contact information. The newly designed EEOC notice of a charge will provide a password-protected log in for the employer to access the system in the pilot offices. Employers will also have the option of opting out of the pilot program and receiving and submitting all documents and communications in paper form.

EEOC Chair Jenny R. Yang commended ACT Digital as an innovative first step in streamlining the agency's charge system.

"The EEOC's pilot of a digital charge system is an important step forward that will benefit the public and our staff," Chair Yang noted. "This will improve our responsiveness to the public, efficiently utilize our resources, and protect the security of documents in our online system. We encourage employers to provide candid feedback and suggestions during the pilots so we can make adjustments to strengthen the system."

The pilot begins May 6, 2015 in the following EEOC offices: Charlotte, Greensboro, Greenville, Norfolk, Raleigh, Richmond and San Francisco. The EEOC offices in Denver, Detroit, Indianapolis and Phoenix will also begin their pilots by the end of May 2015.

Follow-Up Links

• About ACT Digital - EEOC's Digital Charge System and Its First Phase of Implementation

• Questions and Answers on Phase I of ACT Digital, EEOC's Digital Charge System

• EEOC Respondent Portal User's Guide

EEOC Releases 2014 Statistics

The Equal Employment Opportunity Commission (EEOC) today released a comprehensive set of fiscal year 2014 private sector data tables providing detailed breakdowns for the 88,778 charges of workplace discrimination the agency received. The fiscal year ran from Oct. 1, 2013, to Sept. 30, 2014.

The number of charges filed decreased compared with recent fiscal years, due in part to the government shutdown during the reporting period. While charge filings were down overall compared to the previous fiscal year, first quarter charge filings--which included the period of the shutdown--were 3,000 to 5,000 less than the other quarters.

Among the charges the EEOC received, the percentage of charges alleging retaliation reached its highest amount ever: 42.8 percent. The percentage of charges alleging race discrimination, the second most common allegation, has remained steady at approximately 35 percent. In fiscal year 2014, the EEOC obtained $296.1 million in total monetary relief through its enforcement program prior to the filing of litigation.

The number of lawsuits on the merits filed by the EEOC's Office of General Counsel throughout the nation was 133, up slightly from the previous two fiscal years. A lawsuit on the merits involves an allegation of discrimination, compared with procedural lawsuits, which are filed mostly to enforce subpoenas or for preliminary relief. Monetary relief from cases litigated, including settlements, totaled $22.5 million.

"Behind these numbers are individuals who turned to the EEOC because they believe that they have suffered unlawful discrimination," said EEOC Chair Jenny R. Yang. "The EEOC remains committed to meaningful resolution of charges and strategic enforcement to eliminate barriers to equal employment opportunity."

The updated data include the popular tables of Statutes by Issue and Bases by Issue. "Bases" refers to the protected characteristics giving rise to the discrimination, such as sex or age. In contrast "issue" is the discriminatory action, such as discharge or failure to promote.

More specifically, the charge numbers show the following breakdowns by bases alleged in descending order.

• Retaliation under all statutes: 37,955 (42.8 percent of all charges filed)

• Race (including racial harassment): 31,073 (35 percent)

• Sex (including pregnancy and sexual harassment): 26,027 (29.3 percent)

• Disability: 25,369 (28.6 percent)

• Age: 20,588 (23.2 percent)

• National Origin: 9,579 (10.8 percent)

• Religion: 3,549 (4.0 percent)

• Color: 2,756 (3.1 percent)

• Equal Pay Act: 938 (1.1 percent) but note that sex-based wage discrimination can also be charged under Title VII's sex discrimination provision

• Genetic Information Non-Discrimination Act: 333 (0.4 percent)

These percentages add up to more than 100 because some charges allege multiple bases, such as discrimination on the bases of race and color, or sex and retaliation.

In fiscal year 2014, 30 percent of the charges filed with EEOC alleged the issue of harassment on various bases, such as race harassment or harassment on the basis of disability. Preventing harassment through systemic enforcement and targeted outreach is a priority issue for the Commission. The January 14, 2015 Commission meeting focused on Workplace Harassment. The new table for All Harassment Charges includes sexual harassment as well as other forms of harassment. Sexual Harassment still remains as a separate table, joined by new tables showing charges of Race Harassment as well as Charges Alleging Harassment Other than Sexual Harassment.

Discharge continues to be the most common issue for all bases under Title VII, the ADEA and the ADA. Allegations of harassment for all bases were the next most frequently cited issue, with the exception of race. For the basis of race, discriminatory terms and conditions of employment was the second most frequently cited issue (9,332), with harassment being the third (9,023).

The updated tables also include Charges by State. The greatest number of charges were filed in Texas (8,035), followed by Florida (7,528) and California (6,363).

Preparing for Your Initial Consultation with an Employment Lawyer

Yesterday we discussed some basic tips to help you search for an employment attorney for your case.  So now you have an initial consultation set up with a lawyer who has been recommended to you by a trusted source or who you have found from doing your own research. How do you make sure you make the most of this initial meeting?

In a word: Preparation.

Once you have a consultation with an employment lawyer scheduled, it is important that you prepare to make the most of the time you will have with the lawyer. Employment lawyers get dozens of contacts per week from potential clients and must be very selective about the cases they take. The initial consultation is your opportunity to make sure the attorney is well informed about the facts of your case. It is also your best chance to show the attorney that you are someone he or she wants to work with over the months and/or years that your matter may be pending on the firm’s docket.

Here are some important tips to keep in mind as you prepare for the meeting:

• Take the meeting seriously and be prepared — Make sure you have good, clean copies (not originals) of any related documents with you when you arrive. Don’t expect the attorney to be your copy service and don’t leave your originals with the attorney.

• Bring a fact chronology — Employment cases are complicated and fact intensive. A lawyer will not be able to tell you whether he can help you unless he knows most of the details of your case. The best way to do this is to bring a simple fact chronology that outlines the factual timeline of your case. A simple “Date — Fact” format will work fine in most cases. If at all possible it should be typed and not hand-written.

• Be on time — Nothing says that you are not serious about your case like being late to your consultation. An attorney’s time literally is their money. Don’t waste it.

• Pay the requested consultation fee on time or have it ready when you walk in the door — If the matter is not important enough for a consultation fee then don’t make the appointment to begin with. But if you do make the appointment, don’t put the lawyer in the position of trying to collect a fee from you at your first meeting. It’s not the way to get off to a good start.

• Dress appropriately — How you dress communicates the level of seriousness you give the issue. You don't have to wear a suit. But showing up in a dirty T-shirt and flip-flops won't help convince the attorney that you are serious about your case. During the meeting the attorney is considering what a jury will think and whether they will take your testimony seriously. How you present yourself plays into this analysis.

• Don’t bring unexpected guests — Attorney-client communications are privileged. This privilege can be lost if others sit in on the meeting. While someone else can certainly accompany you to the lawyer’s office, don’t expect them or ask for them to come into the meeting with you unless you cleared it in advance with the attorney. Dealing with this issue at the time of the meeting uses up valuable meeting time while the lawyer tries to assess whether they should be allowed into the meeting or not. Also, keep in mind that the lawyer wants to hear YOUR story and is less interested in your husband/wife, girlfriend/boyfriend or mother’s version of the story.

• Don’t bring children — I love children. But they should not be brought to your attorney consultation. They are a distraction for you and the attorney and it can sometimes be difficult to discuss sensitive matters in front of them. Get a sitter or ask a friend or family member to watch them for you.

Following these steps should help you have a productive initial consultation and hopefully find a qualified attorney to handle your employment-related legal matter.

How to Hire An Employment Lawyer

So you need to hire an employment lawyer but you don’t know how to get started? This article is for you.

Hiring a lawyer to guide you through an employment-related dispute can be challenging. Unlike cases involving personal injury matters, there aren’t hundreds of employment lawyers running TV advertisements in an attempt to get you to “Call now!” Quite the opposite is true in fact.

Due to the complicated statutory nature of employment law practice, there are likely only a small handful of lawyers in even a relatively large city who are board certified to represent employees in employment-related disputes. The few who are qualified and have the years of experience you should be looking for will likely be extremely busy because there are so few of them. For this reason it is important that you do some research and get your own materials together before you start making calls.

To get you started, I've prepared a handy guide outlining some of the basic steps you need to take.

Step 1 - Do A Little Research Online. 

Before you pick up the phone and start making calls, pick up your mouse and start making clicks. Many good employment lawyers will have a website and/or a blog that will provide you with a lot of quality information about employment law issues. Take a look at what practice areas in which the lawyer claims he or she practices. You don’t want a jack-of-all-trades-master-of-none attorney for your case. You want someone who concentrates the majority of his/her practice on employment law issues. You could also search legal directory avvo.com to help you find local lawyers who represent employees. It isn’t a perfect system but it will give you a good list to start your research.

Step 2 - Check For Board Certification

Lawyers are not required to be Board Certified in employment law to practice it in Texas. Some states don’t even provide for board certifications. But in Texas, the State Bar of Texas does provide Board Certification to those lawyers who practice employment law for a sufficient period of time, provide recommendations from lawyers and judges who they have practiced with and who pass a lengthy examination process. You can learn more about Board Certification here.

Step 3 - Expect To Fill Out A Questionnaire And Pay A Fee For A Consultation

Many firms have developed questionnaires. These are not idle exercises. You must fill them out to help your lawyer understand your case so he can better help you. Plus, filling out these short (usually electronic) forms may save you money. Some attorneys use short electronic forms as an initial screening tool for the many potential client contacts they receive each day. Sometimes, the form indicates a simple question for which a quick answer can be provided. Other times, the type of case being described would be better handled by another lawyer who specializes in that specific niche — you can usually get that referral set up at no cost. Then, if the form indicates an issue on which a lawyer believes he or she can provide meaningful assistance, a full, in-person consultation can be scheduled.

Most attorneys charge a small consultation fee to review employment-related matters. Because employment law is very fact specific, an employment lawyer needs to know all the facts of your case before he or she can commit to representing you. This often takes time. If employment lawyers are not paid something for this, they cannot stay in business.

Step 4 - Prepare For Your Consultation

Once you have a consultation with an employment lawyer scheduled, it is important that you prepare to make the most of the time you will have with the lawyer. I have written an article discussing the initial consultation in more detail, including tips on what to bring and how to prepare for this important meeting.

Federal Judge: Anti-Discrimination Laws Have Been "Gutted"

As we prepare to celebrate the fiftieth anniversary of the March on Washington and the passage of the Civil Rights Act of 1964, that law has been gutted. This seems to be the growing consensus among academics, employment attorneys and judges. Harvard Law School professor and former federal judge Nancy Gertner writes about the sad state of affairs in this article. Judge Gertner now teaches law at Harvard and was for many years one of the most distinguished federal trial judges in the nation. Gertner writes about a study that was commissioned to review the 2011 and 2012 summary judgment orders in employment discrimination cases in the Northern District of Georgia. Of the 181 cases where the plaintiff had counsel, the Court dismissed 94 percent of them at least in part, and 81 percent in full. Racial hostile work environment claims were dismissed 100 percent of the time.

But don't go thinking that these results from Georgia are an aberration.  They aren't. As Judge Gertner points out, "[t]he Georgia results mirror the results nationwide. 60 percent of motions for summary judgment are granted in general, but in employment discrimination cases, the court dismisses from 70 to 95 percent of the cases."

The simple truth of the matter is that federal judges from trial courts to the Supreme Court have interpreted the Civil Rights Act virtually out of existence. This is so across judicial philosophies, across the political spectrum and even across presidential appointments. Gertner writes:

Women, minorities, people over forty and the disabled bring discrimination cases only to lose in overwhelming numbers. So little do the judges think of discrimination claims that they rarely allow them to get to a jury at all. Federal courts have legitimized practices that would have horrified the early supporters of the Act.

This is rapidly leading to a situation in which employees who have suffered discrimination can't even obtain qualified legal counsel to represent them. Fewer and fewer good lawyers will represent plaintiffs in these cases because the odds are stacked against them regardless of the strength of the case.

Unfortunately, if these trends don't change, the protections against discrimination envisioned by those who authored the Civil Rights Act may vanish forever. As the study cited by Judge Gertner points out, even cases with incredibly strong facts are statistically likely to be thrown out by a judicial system that has become hostile to even the most valid of discrimination claims.  Take the example case cited by Gertner's article - a racial harassment case in which the plaintiffs alleged that their employer had created a racially hostile environment:

Mr. Whorton used the N-word at manager meetings and went out of his way to use that term despite plaintiffs’ objections. Defendants used the N-word “on virtually every occasion” they were present at the club, and it “was not uncommon” for that term to be directed towards plaintiffs. On one occasion, Mr. Whorton called a staff meeting to address the issue of his use of the N-word. During that meeting, he stated that he was too old to change the way he spoke, and he invited anyone who did not like it to quit. On another occasion, Mr. Whorton stated, “What do your people want? When this was a white club, my customers used ashtrays. Ever since the n—–s have been in the club, the cigarettes have been put out on the floor. The difference between blacks and n—–s is that n—–s put their cigarettes out on the floor.” Plaintiffs allege four additional comments. First, Mr. Whorton once asked an unspecified person or persons whether “days like this [make] you wish you people had stayed in chains?” Another time, Mr. Whorton saw someone wearing a shirt with a monkey on it and asked, “Are the Obama shirts in?” Mrs. Whorton once said she realized she was using the classical form of the N-word when she should have been using the contemporary form. Lastly, Mr. Whorton complained to plaintiff that he could not trust African Americans, and said, “Dwayne . . . look at me! I know you don’t like this – n—–s don’t appreciate s–t.”Here, viewed in the light most favorable to the plaintiffs, the facts simply show that the Whortons are racist, bigoted, and/or offensive people. However, “Title VII is not a civility code, and not all profane or [racist] language or conduct will constitute discrimination in the terms and conditions of employment."

That's right, the court granted summary judgment against the plaintiffs in this case. The court held that this case was not even strong enough to warrant a jury trial.

Surprised by the result? Unfortunately, I am not. Any plaintiff-side employment lawyer can rattle off a long list of strong discrimination cases that the courts have poured them out on. It has become so bad that few new lawyers are willing to join the thinning ranks of plaintiff-side employment lawyers. Sadly, I can't blame them.

I learned of Judge Gertner's article while reading U.S. District Judge Richard Kopf's excellent Hercules and the Umpire blog article "When it comes to employment cases, judges are killing the Civil Rights Act of 1964." He has done a study of his own cases similar to the Georgia study (see here and here). Turns out his own dismissal rate of employment discrimination cases was just as bad as those courts studied in the Georgia study.  He writes: “The fact is that the law on summary judgment motions in employment cases favors the granting of summary judgment motions in a high percentage of the cases and, not surprisingly, that is what you see happening in the Northern District of Georgia and with ‘yours truly’ too.”

While I appreciate his candor, I do respectfully differ with Judge Kopf to the extent that he seems to imply that he feels his hands are tied with regard to this issue. The fact of the matter is that the letter of the law does not "favor the granting of summary judgment motions in a high percentage of [these] cases." Quite the opposite. The letter of the law states that summary judgment is a tool to be used sparingly and only to weed out the most meritless of cases. The default is always supposed to favor the resolution of factual disputes by a jury trial.

Unfortunately, many judges have, perhaps subconsciously, adopted a clear bias against victims of discrimination that has worked its way into the very fabric of how the judiciary approaches these cases. It has become the norm. It has become acceptable. But, it isn't in the letter of the law. It just isn't.

If there is a solution, it will have to start in the district courts. Summary judgment motions are primarily in the control of district court judges. Yes, courts of appeal weigh in but they generally support the district courts with regard to summary judgment rulings. Truly, the only way this situation can be remedied is if district court judges take a long hard look at their approach to discrimination cases and realize the degree to which bias has become a normal part of courts' analysis of summary judgment motions. The Supreme Court has never required that the idiotic McDonnell Douglas burden analysis be used in any case. In fact, a strong argument can be made that it violates F.R.C.P. 56 because of its rigidity. The only purpose McDonnell Douglas serves is as a way to make application of a bias appear to be application of a technicality. The lawyers and courts all know it isn't a legitimate test - that's why we don't ask juries to follow it in the few cases that make it to trial.

My modest proposal: dump the hyper-technical, bias-disguising tests. Get back to the basics. The letter of the law is actually quite simple - if there is a question of fact, the case must go to a jury. If there is any evidence that the decision at issue may have been motivated by illegal discriminatory bias then the case should not be summarily dismissed. It should be resolved by a jury trial. It really is just that simple.

As we approach the 50th anniversary of the passage of the Civil Rights Act of 1964, the question before us is whether we will we be celebrating a birthday or a funeral? The answer to that question is now in the hands of the district courts.