Employment discrimination complaints against private sector employers reached an all-time high in the most recent fiscal year, federal regulators said this week.

The U.S. Equal Employment Opportunity Commission (EEOC), the federal agency that handles these claims before they go to Court, said it received a record 99,947 charges of employment discrimination and obtained $455.6 million in relief through its administrative program and litigation in fiscal year 2011. The commission said it resolved more charges than it took in with 112,499 resolutions (7,500 more resolutions than FY 2010—an increase of 7 percent)—leaving 78,136 pending charges, a 10 percent decrease in its inventory, the first year the agency has seen a reduction since 2002. A similar increase in these types of claims has also been seen by the New Hampshire Commission for Human Rights, the New Hampshire Agency that handles most discrimination claims in New Hampshire before they go to Court, although actual numbers are not yet available.

The EEOC records show that:

- In both the private and federal sectors, 5.4 million individuals benefited from changes in employment policies or practices in their workplace during the past fiscal year.

- The EEOC obtained a record $455.6 million in relief for private sector, state, and local employees and applicants, a more than $51 million increase from the past fiscal year and continuing the upward trend of the past three fiscal years.

- The mediation program reached record levels, both in the number of resolutions – 9,831 – which is 5 percent more than in FY 2010 (9,362), and benefits — $170,053,021– $28 million more than FY 2010.

- The EEOC filed 300 lawsuits and its litigation efforts resulted in $91 million of relief, representing the third year in a row that the relief obtained was greater than in the preceding year. Twenty-three of the lawsuits filed involved systemic allegations involving large numbers of people and an additional 67 had multiple victims (less than 20).

The total number of charges received was up slightly from last fiscal year’s record total. Once again, charges alleging retaliation under all the statutes the EEOC enforces were the most numerous at 37,334 charges received, or 37.4 percent of all charges, closely followed by charges involving claims of race discrimination at 35,395 charges or 35.4 percent. While the numbers of charges with race and sex discrimination allegations declined from the previous year, charges with the two other most frequently-cited allegations increased:

- Disability discrimination–25,742

- Age discrimination—23,465

The agency’s enforcement of Americans with Disabilities Act (ADA) produced the highest increase in monetary relief among all of the statutes: the administrative relief obtained for disability discrimination charges increased by almost 35.9 percent to $103.4 million compared to $76.1 million in the previous fiscal year. Back impairments were the most frequently cited impairment under the ADA, followed by other orthopedic impairments, depression, anxiety disorder and diabetes.

If you think you have been discriminated against, please call our office at 1-800-240-1988 or fill out on online Contact Form.

The New Hampshire Department of Labor recently decided a wage claim against an employer who had handed out to its employees a paragraph that was to be inserted into the employee handbook. The paragraph said that if an employee became employed by a competitor they would forfeit all vacation, sick and personal time accrued. The employee in question denied ever receiving the addendum to the handbook but both sides agreed he had never signed anything acknowledging receipt of that change. When the employee was denied over $3,000 in vacation and sick time he appealed to the Department of Labor and it ruled in his favor.

Under New Hampshire law, the employer must obtain a signed notification from an employee reflecting a change of its practices or policies affecting paid vacations, holidays, sick leave, bonuses, severance pay, personal days, payment of employee expenses, pensions or other fringe benefit for it to be effective. That does not mean the employee can negate the employer’s changes but the employee must acknowledge receipt of the change.

President Obama recently announced that the United States would pull its troops out of Iraq by the end of the year. This announcement likely means that many soldiers will be returning to civilian status and seeking jobs–in many cases the jobs they held before they were deployed.

Returning soldiers and their employers need to be aware that returning soldiers hold special rights to reinstatement under a Federal law called the Uniformed Services Employment and Reemployment Rights Act (USERRA). Under USERRA, the employer of a returning soldier must reemploy the soldier if the soldier meets certain conditions. First, the soldier must have provided the employer advance notice of his service. Second, the soldier’s absence from employment must not have exceeded five (5) years. Third, the soldier must report the intent to obtain reemployment within 90 days of the completion of the soldier’s period of service.

Employers that violate USERRA face steep penalties. The employer must pay all lost wages the returning soldier incurs as a result of the employer’s breach of its duty to reemploy the soldier, plus an additional amount equivalent to the soldier’s monetary losses as “liquidated damages” for a willful violation of the law or a reckless disregard of it. The employer must also pay the soldier’s reasonable attorney’s fees.

If you have returned from service and have been denied reemployment by your employer at the time of your deployment, you should contact an experienced employment discrimination attorney such as the attorneys at Douglas, Leonard & Garvey, P.C. to make sure your rights are protected. Call our office at 1-800-240-1988 or complete our online contact form.

Chuck Douglas and Jason Major of Douglas, Leonard & Garvey just finished a two-week long jury trial in Merrimack County with a $150,000.00 victory against the New Hampshire Department of Corrections in a free-speech case brought by correctional officer Mark Jordan. Here is a copy of the jury verdict form completed by the jury.

Mr. Jordan was suspended without pay or benefits for a year following a parking lot altercation started by another Corrections Department employee on March 10, 2010. Corrections Commissioner William Wrenn also referred the case to the State Police for criminal charges against Mr. Jordan. Evidence that demonstrated that the other employee was the aggressor was available to but ignored by Commissioner Wrenn. The aggressive employee, who had a history of angrily confronting his co-workers, was not placed on suspension or charged with any crime.

Why was Mr. Jordan singled out and placed on a year-long suspension without pay if he was not the aggressor in the parking lot incident? Mr. Jordan happens to be the president of the New England Police Benevolent Association chapter that represents New Hampshire correctional officers. He had been a vocal advocate for the safety of his fellow officers in late 2009 and early 2010, going on the record to challenge what his union saw as dangerous choices to layoff 56 correctional workers (leading to unsafe levels of understaffing), and Commissioner Wrenn’s support for SB500, a bill which proposed the early release of violent offenders and provided weaker sentences for parole violators. Mr. Jordan also began an investigation of allegations of corruption at the Men’s Prison in Concord related to excessive force charges against a fellow correctional officer, which he also made public.

Following the voicing of his opinions in early 2010, Mr. Jordan’s previously strong personal relationship with Commissioner Wrenn broke down, and when the parking lot altercation occurred on March 10, 2010, Wrenn seized the opportunity to attempt to silence and discredit Mr. Jordan by placing him on suspension and under a criminal investigation (which led to a simple assault charge) for a full year. Mr. Jordan was acquitted of the criminal charges against him on February 28, 2011, and finally returned to his job in June of 2011. The State did provide him with back-pay for the year of work he missed, and retroactively reinstated his health insurance.

However, the State refused to acknowledge the damage done to Mr. Jordan while he was out of work without pay. Mr. Jordan fell behind on his bills and his family had to make sparing use of medical care despite a serious health condition that Mr. Jordan suffers from (which came to light after he was assaulted by an inmate in 2009). Mr. Jordan’s wife Pam described the year without pay and benefits, with bogus criminal charges hanging over Mr. Jordan’s head, as being a “year of hell,” with fear and desperation predominating over their family during that time.

The case was tried before Superior Court Judge Richard McNamara from October 18 through October 28, 2010, resulting a verdict for Mr. Jordan in the amount of $150,000.00. The case was tried under RSA 98-E, a statute which guarantees the free speech and criticism rights of State employees like Mr. Jordan. It is believed to be the first jury verdict under RSA 98-E. The statute provides for an award of attorneys’ fees to the prevailing party as well as damages. The case received press coverage in both the Union Leader and Concord Monitor.

We have commented before about Facebook and the concern that certain employees may be posting comments about co-workers or their boss in violation of employer policies. Of course, if the employee is unaware of a policy against cell phone usage during work, or Facebook postings, then they cannot be disciplined for violating an unknown and undistributed policy.

On the other hand, if you have been warned and specifically shown a policy at work, then termination or discipline is possible depending on whether the policy calls for termination or merely discipline. Some employers use a Facebook comment as a pretext for firing workers who otherwise had complained about bad management practices. Each case will turn on its facts, so just be aware that the comments you make on your cell phone or computer are potentially going to be used against you by your employer. Employers should also be aware that undistributed policies or seat of the pants decisions do not count as a proper basis for termination or discipline. Employees cannot be expected to be mind readers.

A waitress waited on tables during the week but when she asked to pick up extra shifts on the weekend she agreed to work only for tips until business picked up. After she worked for several hours over weekends she filed a wage claim for unpaid compensation. The New Hampshire Department of Labor hearing officer held that despite the oral agreement that she was only working for tips, the employer was not relieved of its obligation to pay an hourly wage. The waitress was awarded almost $4,000 for the weekends she worked over the year.

Because the employer had not kept accurate employee records it was not able to reduce the amount she claimed she was owed. Employees should get whatever their compensation understandings are in writing. Otherwise, you can end up hoping that you win a Department of Labor hearing. Of course, the employer has the duty to reduce the deal to writing and keep accurate records, though many small employers don’t do that.

As a technician for a heating company providing on-site maintenance and service, the employee was required to travel. Because he was an hourly employee he used a time card and at the end of each work day had to return to the home base of the operation to punch out. The employer and an employee had an oral side agreement that the employee would not be paid for travel time from his last service stop to the employer’s residence which was where the company was located. After the employee filed an unpaid overtime claim he obtained almost $15,000 from the Department of Labor. The employee’s records indicated he was owed approximately a half hour’s pay for each day involved but because the employer could not produce better records, the estimate by the employee was adopted as the proper measure of unpaid wages. Once again, oral side deals can get an employer into trouble.

Facebook, Twitter, etc. are fast becoming a popular tool for employers looking for information about future employees. The social networking sites, according to one source, are used by 45% of employers to screen potential job candidates. At least a third of those employers have rejected an applicant because of information they discovered from social networking sites where the future employee talked about drug and alcohol use, nudity, bad mouthed a former employer, bragged about misconduct or made discriminatory remarks.

This is another reminder that postings on the internet are available for many people to see – even those you don’t intend to read it or use the information. All of those folks who are having fun on the internet should realize that it may cost them a future job because for employers it’s fast, free and easy and there is a treasure trove of ridiculous information posted by people. Young people especially enjoy putting their wild and crazy times on the internet for the rest of eternity. Social networking sites, including profiles, will tell an employer most information they might want to do know but are afraid to ask such as, gender, marital status, religion, age, and even a photograph to help show ethnicity, race, etc.

For future employees, beware of what you decide to post on the internet because it may come back in many ways.

The New Hampshire Department of Labor (“DOL”) has regulations which protect hourly workers and require that employers pay you in a timely way. The regulations require your employer to pay all wages due within 8 days, including Sundays, after the expiration of the workweek on regular paydays designated in advance. Employers may pay workers less frequently, but have to meet specific DOL requirements. In this day and age, many people have been discharged by work. If that happens, under New Hampshire law, your employer must pay all wages owed within 72 hours either by physically giving payment to the employee or by mailing the payment to the employee, at the employee’s choice.

If you quit work, the employer must pay you in full no later than the next regular payday, or within 72 hours if you are not allowed to work after you tell your employer that you quit. Every employer shall pay without condition and within the required time frames all wages or parts thereof that are due. The employer must pay wages based upon recorded hours and in accordance with written or verbal agreements between you and your employer.

Wage and hour laws and regulations can be complicated but exist to protect employees. If your employer makes a mistake or willfully withholds wages based upon commissions or hourly work, you may have the right to bring a wage claim before the Department of Labor. The process is relatively quick, but an experienced employer lawyer can maximize your chances of recovering wages or commissions that are owed to you. If the DOL finds that wages have willfully been withheld, and the employer had the ability to pay those wages/commissions, you may be able to recover double damages. The lawyers at Douglas, Leonard & Garvey regularly practice before the New Hampshire Department of Labor and are available to help you recover the wages/commissions that you deserve. Call our office at 1-800-240-1988 or fill out our contact form online.

If you have suffered a work-related injury, you may be entitled to permanent impairment compensation under New Hampshire statutory law, and you may pursue your permanent impairment award years after the injury occurred.<p>>

 Most rights that New Hampshire workers’ compensation law confers on injured employees have expiration dates.  This is true of most rights under the law.  If you do not act to preserve your right within a specified time period, you lose the right.<p>

The permanent impairment award is the rare exception.  Three (3) events must transpire for an injured employee to qualify for a permanent impairment award.  First, the injured employee must reach maximum medical improvement with respect to his work-related injury.   Second, the work injury must have caused the injured employee to suffer a permanent loss of use of the function of a body part.  Third, a doctor must evaluate the percentage loss of use according to the methods prescribed by a publication of the American Medical Association called the AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition.  Notably, New Hampshire Department of Labor regulations require that the carrier pay the doctor’s bill for evaluating the extent of impairment, if the employee has reached maximum medical improvement and has not previously undergone any medical evaluation for permanency.<p> 

The amount of the permanent impairment award is determined by this mathematical formula:  (Percentage loss of use as determined by the doctor) X (a certain number of weeks of disability benefits, which number depends on the affected body part) X (the injured employee’s compensation rate at the time of injury, which rate is equivalent to 60% of the employee’s average weekly wage).<p>

The Department of Labor must approve any permanent impairment award.  If the workers’ compensation carrier disputes the extent of the award owing, or disputes whether any award is owing at all, the employee may request a hearing before the Department of Labor to resolve the dispute.  The carrier will be represented by an attorney through this process, so the employee should be represented as well.<p> 

Unsurprisingly, carriers do not bend over backwards to inform injured employees of their potential rights to permanent impairment compensation.  But, unlike most other rights under the law, there is no expiration date on the right to this compensation.  If you have suffered a work injury that may have had some permanent impact on you, and you have not received a permanent impairment award, you should consult an experienced workers’ compensation attorney such as Benjamin King, Esquire, at Douglas, Leonard & Garvey, P.C. to discuss pursuing the compensation to which you may be entitled.  Call the office or fill our on-online contact form.