Reporting the Employer (Part I of II)

I am often asked how you report an employer for unlawful conduct.  The answer depends on what kind of activity is being reported.

If you suspect your employer is engaged in criminal activity, you should report it to law enforcement immediately.

Other than that, there are a number of agencies one can report an employer to, depending on the employer’s conduct.  While an employer may choose to commit an array of unlawful practices, we will address two of the most common types of unlawful practices at this time.

1.  Discrimination, based on

• Age
• Disability
• Equal Pay
• Genetic Information
• National Origin
• Pregnancy
• Race
• Color
• Religion
• Retaliation
• Sex and Sexual Harassment

2.  Unpaid wages and overtime.

Today we will briefly discuss how to report a discriminatory practice.  It is an unusually long post, but contains critical information that will assist you.  In Part II, soon to follow, we will discuss reporting a wage violation.

If you are unlawfully discriminated against

1. You must report the discrimination to the Equal Employment Opportunity Commission (the EEOC). Some types of discrimination allow you to file with the Florida Commission on Human Relations (FCHR).  As we will see later, it's what is inside your filing that matters most.
2. You must file a report with the EEOC within 180 days of the discrimination (45 days if you are a federal employee).   
3. For some of those classifications you could file with the Florida Commission on Human Relations (FCHR) within 365 days.  
4. You cannot sue your employer in court until you receive a right-to-sue letter from the EEOC or FCHR. 

The standard procedure is

1. You call the EEOC;
2. speak with an EEOC agent;
3. that agent fills out a form (EEOC Form 5) detailing the facts supporting your claim of discrimination;
4. The EEOC mails it to you for your signature.  

The chances of prevailing can change dramatically depending on whether you have retained an attorney prior to filing with the EEOC.

As any attorney will tell you, getting an attorney involved early who is experienced in the matters you are addressing is always the best way to go.  There are a number of reasons why this is particularly true for filing with the EEOC, but among the most obvious is the Form 5.

It is absolutely critical that Form 5 be completed thoroughly, because it basically controls the entirety of the rest of your case. This is because you can only sue in court for what you have alleged in this form.  Only an attorney is qualified to advise you as to whether or not you have a given claim of action, or if you might have missed a cause of action you didn't think you had.  

If the agent fails to check off the correct number of boxes and alleges only race discrimination where there was also religious discrimination, you can only sue for race discrimination.

• "Well, at least I’m suing them for something, right?"  
• Not necessarily.  What if your allegations of race discrimination are weak and a judge dismisses it, or high court comes down with a ruling that a case alleging a similar fact as yours cannot prevail.   Your case will have no legal merit and you cannot sue the employer again based on religious discrimination.  
• You usually get one bite at the apple for the different types of discrimination you could have alleged, unless additional discrimination has occurred after you filed the charge.   
• If the agent references only federal but not state law, you may be stuck having to litigate in federal court, when a better legal strategy would or could have been to litigate in state court.  
• If the agent failed to record a specific fact alleging an act of discrimination, it may result in a judge ordering that you cannot bring up that particular fact at a trial.  

Some of my clients have come to me with a draft of Form 5 completed by the EEOC agent.  I have noticed that the forms did not provide a complete statement of facts detailing the discriminatory acts, and/or did not list all of the legal causes of action, and/or did not list all of the applicable laws.  That is a big problem; remember, if it's not in the form, it may as well have not happened.

Most EEOC agents I have had the pleasure of dealing with are professional and competent.  However, the EEOC, like many other agencies, has undergone budget cuts, overloading their agents with work, resulting in the possibility that an agent may rush and file an incomplete form.  Given that, I would like to guess they would also prefer you see an attorney instead of calling them if the time allows.

As you can see, it is critical to your claim that you see an employment attorney prior to filing a charge of discrimination.  While no attorney can guarantee you will prevail, retaining one can very well mean the difference between prevailing and not prevailing.  If the 180 day deadline is upon you, go ahead and file, then retain an attorney.  That attorney can file an amended charge if necessary. 

Seek an attorney who has litigation, trial and employment law experience.  Look for someone who belongs to professional employment law organizations, such as the Florida Chapter of the National Employment Lawyers’ Association (NELA).  Those types of organizations provide services such as seminars on employment law and help keep the member attorneys up to date on the changes in the law that apply to you.

Again, this a broad article which only brushes the surface of the intricacies and strategies used when filing; whether to pursue litigation in State or Federal Court, and how to do that through the Form 5, is much too complicated for a blog post, and there are too many different pitfalls for us to adequately cover here.  The bottom line is you'll be far better off retaining a qualified employment law attorney early; only then can you rest assured your interests are fully and adequately represented.  Watch for future blog posts, where we'll discuss reporting your employer for unpaid wage and overtime, and thanks for reading!