Employer Beware!
The Top Ten Disgruntled Employee Lawsuits

By Sheri D. McWhorter

Last year employee filings with the Equal Employment Opportunity Commission (EEOC) reached 99,922 as the EEOC accepted a record number of discrimination charges and secured more than $404 million in monetary relief paid by employers to allegedly aggrieved workers. Almost 41% of the charges were filed against employers with between 15 and 100 employees; 18% were filed against employers with between 100 and 500 employees. Add to those the record number of wage and hour claims and lawsuits, and the result is a recipe for disaster for unwary employers.

With the recovery seemingly stalled, most experts expect lawsuits by disgruntled employees to continue to rise. Here are the “Top Ten.”

1. Wage & Hour - Overtime

Expect the explosive growth in wage and hour complaints to continue. Wage and hour lawsuits reached record levels in 2010, when nearly 6,800 private-sector lawsuits were filed nationwide. In addition, the U.S. Department of Labor (USDOL) processed over 32,000 wage and hour complaints in 2010, an increase of over 33% in just two years, with collections of back wages of $176M.

The Obama administration is focusing on wage and hour compliance like never before, and has trumpeted its commitment to more aggressive enforcement. Besides adding hundreds of new investigators, the USDOL recently rolled out a new smartphone application whereby workers can track their time and calculate their regular work hours, break time, and overtime hours to create their own wage records, which could prove invaluable during an investigation for a lawsuit or complaint over pay. Anticipating a groundswell of overtime complaints, the agency has also implemented the “Bridge to Justice” program to provide disgruntled workers with private lawyers to assist them with their lawsuits.

2. Retaliation

Retaliation claims are also on the rise. The EEOC reported that in 2010, for the first time, retaliation claims surpassed race discrimination claims as the claim most frequently filed against employers. Retaliation cases can be costly for employers. According to Jury Award Trends and Statistics (2009 Edition), the median award for retaliation cases over the previous 7 years was $225,000. In FY 2010, for all of the statutes it enforces, the EEOC processed over 36,000 charges of retaliation and recovered over $93.6M in monetary benefits on behalf of the allegedly aggrieved employees.

3. Race

Race discrimination has historically been the number one most frequently filed EEOC charge. In 2010 race fell to a close second, just behind retaliation, as the most frequently filed EEOC claim made by employees against their employers, as the EEOC processed over 35,000 claims and recovered over $84.4M in monetary benefits on behalf of allegedly aggrieved employees.

4. Sex

Sex discrimination ranks third, just behind race, in the number of EEOC claims filed. In FY 2010 the EEOC processed over 29,000 charges of sex discrimination and recovered over $129.3M in monetary benefits on behalf of the allegedly aggrieved employees.

Disability discrimination claims have also reached record levels. In FY 2010 the EEOC processed over 25,000 charges of disability discrimination and recovered over $76.1M in monetary benefits on behalf of the allegedly aggrieved employees. With the recent amendments to the Americans With Disabilities Act under the ADAAA, experts predict even greater increases in disability discrimination claims.

6. Age

According to EEOC statistics, between 2007 and 2008, age discrimination claims increased by 29%. In FY 2010 the EEOC processed over 23,000 charges of age discrimination and recovered over $93.6M in monetary benefits on behalf of the allegedly aggrieved employees. Experts predict age discrimination lawsuits will continue their exponential rise.

7. Misclassification of Independent Contractor vs. Employee

Worker misclassification occurs when a worker who is legally an employee is instead treated as a self-employed worker, and misclassified as an “independent contractor.” The Wage & Hour Division (WHD) is emphasizing worker misclassification in its enhanced enforcement strategy and, between 2008 and 2009, increased its recovery by more than 50% on behalf of allegedly misclassified employees.

8. Pregnancy

In FY 2010 the EEOC processed over 6000 charges of pregnancy discrimination and recovered over $18 million in monetary benefits on behalf of the allegedly aggrieved employees. Pregnant employees may have additional rights under the Family and Medical Leave Act (FMLA) (see below), as well as under the break time for nursing mothers provisions of the Fair Labor Standards Act (FLSA).

Federal law provides for several types of protected leaves of absence and other time off from work, including leave under the ADA, the FMLA, for military service under USERRA, workers’ compensation leave, domestic violence leave, and others. 10. Sexual Harassment In FY 2010 the EEOC processed over 11,000 charges of sexual harassment and recovered over $48.4M in monetary benefits on behalf of the allegedly aggrieved employees.

About the Author
Sheri D. McWhorter, JD, SPHR is a Florida Bar Certified Specialist in Labor & Employment Law, and is President and Managing Shareholder of WorkplaceLegal SolutionsSM, Law Offices of Sheri D. McWhorter, P.A.  With offices in St. Petersburg and Tampa, WorkplaceLegalSolutions provides client focused employee relations counseling and proactive employment law solutions to businesses and non-profits throughout Florida and the greater Tampa Bay area.  For assistance, please call 866. 829.1883.