Fowler White - Employment & Immigration eNews

EEOC Charges Escalate, Again


Heather Brock	Nick Banegas

The EEOC recently announced that a record 99,947 employment discrimination charges were filed in Fiscal Year 2011. The EEOC’s data also shows:

Through enforcement, mediation, and litigation programs, the agency obtained a record $455.6 million in relief for private sector, state, and local employees and applicants - a $45 million increase over last year.
The mediation program reached record levels, both in the number of resolutions (9,831 - 5% up from last year) and benefits ($170,053,021 - up $29 million from last year).
For the second year in a row, despite a record number of receipts, the Commission resolved more charges than it received with 112,499 resolutions (up 7,500 more from last year) - leaving 78,136 pending charges, a 10% decrease in its inventory. This was the first time in almost a decade the agency has seen a reduction.
The EEOC filed 300 lawsuits, obtaining $91 million of relief, representing the third consecutive year of increased relief.
Retaliation charges under all the statutes enforced by the EEOC were the most numerous — at 37.4% of all charges. Race discrimination charges were a close second at 35.4%. The three next most frequently-cited allegations were charges of sex discrimination - 28,534; disability discrimination - 25,742; and age discrimination - 23,465.
The highest increase in monetary relief came from the EEOC’s efforts to enforce the ADA; the administrative relief obtained for disability bias charges increased by almost 36% to $103.4 million, compared to $76.1 million last year. Back impairments were the most oft-cited ADA impairment, followed by other orthopedic impairments, depression and diabetes.

The EEOC’s full report on its litigation and enforcement statistics can be found at here.

For assistance on how to lower your company’s chances of drawing a charge, or how to best respond if the company receives a charge, please contact Employment attorneys Heather Brock or Nicholas Banegas.

Another Circuit Jumps on the Anti- "Departure Bar" Bandwagon

This week, the Tenth Circuit became the seventh circuit court to reject the “departure bar” to motions to reopen found at 8 C.F.R. § 1003.2(d). The departure bar essentially prohibits noncitizens from pursuing motions to reopen or reconsider in removal proceedings after having departed from the United States. The Tenth Circuit had been the only court to issue a precedent decision in favor of the bar, but overturned that decision in a recent rehearing en banc. Contreras-Bocanegra v. Holder, 629 F.3d 1170 (10th Cir. 2010).

The Third, Fourth, Sixth, and Ninth Circuits, among others, had all specifically found the bar unlawful. See e.g. Reyes-Torres v. Holder, 645 F.3d 1073 (9th Cir. 2011). These courts have held, and many immigrants’ rights groups have argued, that the regulation deprives immigration judges and the Board of Immigration Appeals the authority to adjudicate motions to remedy wrongfully executed deportations. Additionally, the regulation conflicts with a noncitizens’ statutory right to pursue reopening.

Although many courts have outright rejected the departure bar, the issue still remains open in many other circuits, the 11th included. The closest the Eleventh Circuit has come to making such a decision was in Ugokwe v. U.S. Attorney General, 453 F.3d 1325 (11th Cir. 2006), in which it held that the filing of a motion to reopen tolls the period of voluntary departure, so as to prevent a subsequent departure from invalidating the motion. Nevertheless, the Ugokwe court did side with the prior, similar holdings of the Ninth and Third Circuits, and so there remains hope that the Eleventh Circuit could do the same with respect to the legality of the departure bar, should the issue arise.

The full text of the Contreras-Bocanegra decision can be found here. For more information, please contact Bill Flynn, Board Certified Immigration and Nationality Law Attorney.

Firms Paid Record $36.6M in Fines for Illegal Immigrant Hiring

The Obama administration is targeting employers who knowingly hire illegal immigrants, rather than staging high-profile workplace raids. In the 2010 fiscal year, U.S. immigration officials' worksite probes resulted in a record $36.6 million in judicial fines, forfeitures and restitutions.
Read full story at Houston Chronicle.

Number of Workers Represented by Unions Declined in 2011

Union membership in the United States slipped last year to a record-low percentage of the workforce. The U.S. Bureau of Labor Statistics said labor unions represented 7.6 percent of private-sector employees in 2011.
Read full story at The Kansas City Star (free reg. req'd).

Battle Over Right-to-Work Continues to Remain Hot Issue

The battle over the right-to-work issue may be reaching a conclusion in Indiana as the state prepares to become the first to adopt the law in more than a decade, but the argument over exactly what the measure means for a state's economy is likely to rage on, unresolved, as it has for 70 years. Since the 1940s, 22 states have passed laws barring unions from collecting mandatory fees from workers for labor representation.
Read full story at USA Today (free reg. req'd).

Expansion of FMLA to Protect Military Caregivers Proposed

First lady Michelle Obama joined Labor Secretary Hilda Solis to propose an expansion to the Family and Medical Leave Act (FMLA) that would give more job protection to military caregivers. The proposed rules would allow spouses, parents and children of service members to care for their loved ones, attend military functions, or deal with child care and family finances "without fear of losing their jobs," Solis said.
Read full story at The Washington Post (free reg. req'd).

NLRB Says Employers' Social Media Policies Shouldn't be Too Broad

A new report from the National Labor Relations Board says essentially that employers should not craft overly broad social media policies that infringe on employee activities already protected by federal labor laws. And disciplining workers for violating such overly broad policies is unlawful, the NLRB says.
Read full story at Pacific Business News.

Ex-Groupon Employee Files Countersuit After Joining Google

Former Groupon sales representatives sued by that company after leaving for Google have filed a countersuit, claiming their former employer is pursuing "sham" litigation to keep them from joining rivals. Groupon, which runs the world's largest online coupon website, had accused Nikki Dorough, Brian Hanna and Michael Nolan of taking confidential trade secrets when they moved to the world's largest Internet search company.
Read full story at Reuters.

Teacher Fired for Asking for Maternity Leave at Catholic School

When Christa Dias of Cincinnati, Ohio, was hired as a part-time technology teacher in 2008 at Holy Family School, and in 2009 at St. Lawrence Catholic School, she had to sign employment contracts agreeing to comply with the teachings of the Roman Catholic Church. Ms. Dias is not, herself, Catholic. In October 2010, shortly after Ms. Dias asked for maternity leave, she was fired from both schools for breaching her employment contracts.
Read full story at New York Law School.