2020 has been an unprecedented year in many aspects, including employment law in the US. Employees in various industries have been faced with difficult situations, ranging from downsizing by some employers to wage cuts by others.
While many of these actions by employers have been necessary, they should not come at the cost of workers’ employment rights. If your employer has taken actions that you suspect may be infringing on your rights, you should speak to an attorney immediately.
At Eldessouky Law, we have been monitoring the novel workplace situations facing employees this year alongside trends from recent years. Our California employment law attorney explains these trends and how COVID-19 is changing employment law claims in 2020.
Filing trends for employment law claims
The Equal Employment Opportunity Commission (EEOC) releases yearly data on employment law claims filed per year. These statistics have been tracked by the EEOC since 1992 and help paint a clear picture of awareness about and enforcement of employee rights in the US.
The EEOC statistics include the number of workplace discrimination claims (called charges) filed by employees every year, and breaks these down by categories. The categories include the types of discrimination alleged, which include discrimination on account of age, sex, religion, retaliation etc. Here are the most recent statistics for 2018 and 2019.
2018 EEOC data
According to the 2018 statistics from the EEOC, a total of 76,418 charges were filed over the year. The statistics indicate a continued downward trend in the number of charges filed per year since 2011.
The charges filed in 2018 were roughly 10% less than the 84,254 charges filed in 2017. They were also approximately 25% less than the 99,947 charges filed in 2011, the highest year on record in this decade.
In line with the general decrease in filing, most of the charge categories also fell. Race charges fell by 14%, age-related filings fell by 8%, and disability charges also fell by 8%. Retaliation claims were down by 1.5%, so were sex-related charges, which fell by roughly 4%.
There were slight increases in other areas though. Sex-related charges increased as a percentage of all charges filed, going from 30.4% in 2017 to 32.3% in 2018. This indicated stronger awareness about sexual harassment in the workplace and increased boldness by employees enforcing their rights. It is also significant that the “Me Too” movement gathered steam during the same year.
LGBT-based charges also increased during the same period, gaining by 2.8%. This continued a steady trend of growth starting from 2014. Charges in this category have increased by 39% from 2014 to 2018. The increase appears to indicate a growing awareness about LGBT rights. It also reflects the EEOC’s position that Title VII of the Civil Rights Act protects employees against discrimination on the basis of their sexual orientation.
Disability claims increased as a percentage of the total US filings in 2018, going from 31.9% in 2017 to 32.2% in 2018. This represents a steady increase in disability-related filings since 2007, when they comprised only 21.4% of total charges. As more people explore their rights within the expanded definition of “disability” within FEHA and the ADA, it is expected that the increase should continue.
Finally, retaliation claims were highest in 2018, as they have been for several years now. They comprised 51.6% of all charges filed, compared to 2017 when they were also the majority filing, with 48.8% of all charges. Retaliation claims are commonly filed alongside other claims, indicating an explanation for their majority.
2019 EEOC data
The statistics from the EEOC for employment claim filings in 2019 continued the general trends from 2018. The charges filed for 2019 were the lowest for any year on record, with statistics indicating a total of 72,675 charges filed for the year.
The steady decline in discrimination filings year on year may be due to a mix of several factors. Increased awareness about employee rights, especially due to several high profile verdicts, have made many employers more careful about respecting employee rights. The statistics may also signify an increased willingness by employers to settle claims early to avoid the exposure of a public inquiry.
Each of the ten categories of discrimination also decreased in line with the general decline. Here’s a breakdown of the figures for each of the ten types of discrimination charges filed in 2019:
- Retaliation: 39,110
- Race: 23,976
- Disability: 24,238
- Sex: 23,532
- Age: 15,573
- National Origin: 7,009
- Religion: 2,725
- Color: 3,415
- Equal Pay Act: 1,117
- Genetic Information: 209
Retaliation was, once again, the category with the highest filings, with 53.8% of the total charges filed. This was higher than 2018 as a percentage of the total, although the actual number of charges filed for the year were lower than 2018.
Sex-related discrimination charges also rose as a percentage of total charges filed in 2019. But the actual number of filings decreased by 1.2%, compared to 2018. Despite this, the EEOC recovered more for victims in 2019 than the previous. The monetary benefits recovered through its administrative process in 2019 increase to $68.2 million, from the $56.6 million recovered in 2018.
The EEOC however filed fewer lawsuits in 2019, compared to the previous year. In 2018, the commission filed 217 lawsuits and recovered $53.6 through those lawsuits. This reduced to 157 lawsuits filed in 2019, and $39.1 million recovered for victims.
How will COVID-19 change employment law claims?
The pandemic is already affecting workplace practices in many ways. As more organizations take steps to cope with retooling workspaces for safe work and other set up from home for remote work, here’s how employment claims are changing.
Layoffs and furloughs
Many organizations have had to cut costs drastically due to reduced business. Sadly, this has resulted in many employees losing their job or wages through layoffs and furloughs, due to no fault of theirs.
A layoff is usually a decision to let certain employees go due to business necessity, rather than their performance. On the other hand, a furloughed worker is still employed, however, they have to take the equivalent of an unpaid leave for a specific period.
Despite the necessity of these actions, employers must still abide by the law. They cannot carry out these layoffs or furloughs in a discriminatory manner or to target certain protected groups or individuals. If your employer carried out these actions in a discriminatory manner, you may be entitled to sue for compensation.
In addition, certain layoffs may trigger employer obligations under the California Worker Adjustment and Retraining Notifications (WARN) Act. The Act requires employers with 75 or more employers to give a 60-day notification to employees when they intend to carry out a mass layoff (involving 50 employees or more).
Although the California Governor has signed an order temporarily suspending the 60-day notice requirement, employers must still provide this notice.
California Governor, Gavin Newsom, also signed another executive order that made changes to the state’s workers’ compensation standards. The new order includes protection for workers who have had to continue working through COVID-19 under workers’ compensation claim standards.
Under the new order, covered workers will be automatically presumed to have contracted COVID-19 if they report to work outside the home, at the direction of their employer.
The position under the previous system was that workers making a claim must also present medical evidence that their injury or illness was work-related. The new order suspends this requirement and also introduces a presumption in favor of employees.
In addition, insurers are required to make a compensability decision on the claim within 30 days, as opposed to the previous 90-day period allowed. To qualify as a covered worker, an employee must have:
- Reported to work outside the home at the direction of the employer; and
- Contracted COVID-19 within 14 days of the last day they worked outside the home
According to the order, the compensation provided to workers must include all benefits currently available under the system, comprising full hospital, medical treatment, surgical, disability indemnity and death benefits.
Wage and hour claims
Finally, the complexion of wage and hour claims are being changed drastically during the pandemic. As employers introduce work controls to prevent transmission of the virus and direct other employees to work from home, they must comply with wage and hour laws. Here are some of the considerations to keep in mind:
- Salary reduction: For employers considering wage cuts, it is important to keep in mind that minimum wage laws must be complied with. No employer may pay non-exempt employees below the minimum wage. They cannot also reduce the compensation for exempt employees below the minimum salary level allowed. If your employer has breached these provisions or is trying to get you to accept less compensation than you are entitled to, speak with our California wage and hour attorney
- Compensable time: An employer is ordinarily required to pay for all time worked. This includes all time spent at work, including going through checkpoints and workplace processing. As such, the time spent putting on and taking off protective equipment may also be compensable. In addition, the time spent washing hands or having your temperature taking may not be taken out of your pay. If you would like to understand more about how these protocols affect the wages you are legally entitled to, contact our employment law attorney at Eldessouky Law.
- Reimbursements: Lastly, for workers who are set up for work at home, you may be entitled to reimbursement for your home workspace setup. Employers are required to provide for or reimburse employees for work expenses they have personally incurred.
Reach out to Eldessouky Law
Although the situation with the pandemic is evolving by the day, what is certain is that your rights cannot be compromised as a result. For guidance about how your rights apply during this period, call Eldessouky Law at 714-409-8991 to set up a free, confidential consultation today.