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TexLaw
TexLaw, Lawyer
Category: Employment Law
Satisfied Customers: 4213
Experience:  Contracts, Wrongful termination and discrimination
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EEOC / employer

Customer Question

We own a small 20 year old business with approx 40 employees, five months ago a pregnant woman came in and asked for an application. we were not hiring at the time.. she was told to check back after the baby is born to see if we had anything, (I guess that was the wrong choice of words but it wasn't meant in a mean way) she decided to file with the EEOC. She got a job three months later, however we never hired anyone until several weeks after that. (we found that out in the documents). She was never interviewed yet they EEOC came back (after what I consider a witch hunt and as I see it she had an agenda) with back pay for a forty hour week from the day she filed the application (we dont hire full time) AND 45,000 in damages (WHAT damages.. we didn't have any openings and she was never interviewed let alone an employee. what I would like to know is two things.. we made a token counter (1000.00) and may go up to 2000.00 but thats it.. if they don't agree (she now has this number in her head she is going to get "rich" ) I am told it would more then likely die in the EEOC since they don't usually file suits unless they are high profile and that she can sue but she would have to pay for her laywer, which I wonder how many take cases like hers on contingency ( I know what laywers cost). i need a "realistic" view of what we are looking at.. t hank you (I am in NC)


 


Also I am not emotional on this but I do believe that case worker we beyond biased.  Can we file an appeal, I am told no.. that seems odd to me.

Submitted: 1 year ago.
Category: Employment Law
Expert:  TexLaw replied 1 year ago.
Hi,

Thank you for your question.

It is true that the EEOC does not always file a lawsuit after finding cause against the employer in a claim. That being said, it is not something that you can guarantee won't happen. I would be remiss to tell you that you should just expect the EEOC to go away.

However, generally, unless it is a high profile case, the EEOC will not file a lawsuit and will simply issue a "Right to Sue" letter to the woman. The woman may then take this to shop around for a personal employment attorney if she does not already have one. I would expect that the woman will be able to find an attorney and that the attorney will file suit against you. As an attorney who has represented both sides in these sort of actions, if a person came to me with a right to sue letter and an EEOC recommendation for a 45K damage payment plus back pay, I would be interested in the case.

That being said, you have a defense to the case and you could win the case (the EEOC is biased against employers in their findings generally). But you don't want to get sued, as the defense costs are not something you can generally recoup and have negative consequences even if your insurance company covers it (premiums go up).

It would be wise to cut this off before it gets to that point, so I would encourage you to ask the EEOC for a mediation and make your counter-proposals there.

When you are the employer, it becomes a business decision in the end, because there is likely a number that will make her go away and will still be less than you would have to spend to hire an attorney to defend the case. I think you are on the right track, but I would be prepared to go up a little higher in your offer to simply make this case go away before she sues you. Once she sues you, it is unlikely to be settled for under $5,000.00.

Please let me know if you have any further questions. Please also kindly consider rating my answer positively so that I am compensated by the website for my work on your question. Rating positively does not cause an additional charge and does not prevent us from further discussing your questions.

Best Regards,
ZDN
TexLaw, Lawyer
Category: Employment Law
Satisfied Customers: 4213
Experience: Contracts, Wrongful termination and discrimination
TexLaw and 5 other Employment Law Specialists are ready to help you
Customer: replied 1 year ago.


You mention back pay. however she was never an employee to start with. She simply asked for an application, I also believe that the case worker was very biased for reasons I can't put online but would be glad to share with you privately. I was told we can not ask for another case worker, which seems unreasonable. I know she does not have the funds for an attorney. Even one of our employees testified she was told by her husband to file since they were "about to be evicited" however that does not seem to be part of the case. I find it hard to believe there is no appeal on this "slam dunk"

 

Also our office here as of last year no longer does mediation. It was a letter, a meeting and then the "demand" that was it. apparently they are bogged down and can no longer take mediation requests but those are done at "random" .. not sure what that entails.

 

This is why I asked about contingincy.. because its the only way she could afford it I believe.

 

Again I am at a loss here and of course I have no issue with giving you a positive rating. I appreciate any help here

 

 

Expert:  TexLaw replied 1 year ago.
Backpay is simply the term for wages in the past. The EEOC is saying that you should pay her for 40 hours worth of work (in the past), which is called backpay.

In regard to the bias information, I think you can safely assume that the EEOC is biased. They are an agency which is established to be advocates for employees. However, you must remember that the EEOC finding has no actual effect other than to simply give you an idea of what an advocate against you believes you owe. In other words, there is nothing to appeal at this point. The next step is the "conciliation" process where the EEOC tries to get you to settle with the woman.

It is only where the EEOC files suit that you can really take any action to combat them.

If the EEOC won't conduct a mediation, then I can almost guarantee you that they will not sue. There is case law out there which would force the EEOC to drop the case and go back to mediation, as the EEOC has a statutory duty to try to conciliate the case before they file suit. Sending you a letter and demanding that you pay without giving you a chance to mediate is hardly meeting that duty.

So, in this case, I think you should go ahead and make your offers to the woman. If she gets a right to sue letter and then retains an attorney, you should go ahead and get an attorney to defend you.

What she has against you is a facially valid claim because of the things that were said to her. However, you can explain what was said and can also show that you were not hiring at that time. If you are not hiring, you are not hiring...its a valid defense and it wins.

I understand you are at a loss as to why this is going on, because it is not fair. But this is a process and unfortunately, you have to jump through the hoops and probably throw some money at the problem to make it go away.
Customer: replied 1 year ago.


Thank you.. that is what the letter was it was a conciliation letter.

 

Can you tell me one more thing.. the defense we have is simple.. we didn't hire anyone at that time but DID hire two employees a few weeks after she found another full time job (we did not know this of course at the time) those employees were hired at 15 hours a week, so she would have never had a 40 hour schedule to start with (we don't hire full time for new employees).

 

We simply had no job for her. we did request the mediation thats when we were told it was random. But they did conduct and "investigation" which required us to go downtown (the girl who filed was not required to be there) and to get our statements and the statements of hiring managers. Then there were several more phone calls asking the same questions over and over again (this was getting annoying) then the letter. That was all.

 

I do appreciate your help.. this is all new territory I have never experienced this before as you can imagine and i am sure this is nothing new in your world :)

 

i admit I was blown back by this 45,000 number which seemed to come out of thin air.. she was out NOTHING. I know you can't predict but the more I read the more confusing it becomes.

 

I guess this is my long way of going about asking if you think we have a strong enough case if it comes to that (again I KNOW you can only give your best guess)

 

Thank You again for being here in the "wee hours"

 

"Jenny"

Expert:  TexLaw replied 1 year ago.
No problem. I'm glad to help.

I think you have a case where you are exposed to being hit with a judgment that you should have hired her at 15-30 hours per week. It's going to turn on you telling her to come back after she's had a baby...that's facially discriminatory, and people will hear it and judge you immediately for it.

I think you also have the possibility of winning the case by proving that you simply were not hiring. Also, the fact that she found a job later on drastically reduces her damages ($40K is completely overstated).

My predictions if you can't settle it, is that you will have to settle for $5-10K if she gets a lawyer. This will cheaper for you than paying 10s of thousands of dollars to go to trial and defend the case and win.
Customer: replied 1 year ago.


Thanks, XXXXX XXXXX never used this site before so I hope I am doing the ratings correctly. am I able to contact you in a day or two if I think of something else or does this "close" it out once we finish. (I want to make sure I am doing it right.. LOL)

 

I like your advice and it makes sense. SO if I understand what you "suggest" (I understand this is not in place of legal advice)

 

make a counter offer or two, but if we can't agree on this then take the risk the EEOC will not bring it to suit, which it sounds like it wouldn't be based on the info you are reading.. however she may bring it to suit (but again I am asking how easy can she get a lawyer that will work on contingency only, I understand in these cases that is not easy)

 

and if that happens try to settle at that point.. am I getting all this correct?

 

OH I forgot to mention the job she was applying for was min wage

 

Expert:  TexLaw replied 1 year ago.
You are correct in what you are saying. I'm not sure how hard it is to find an attorney to take a case like this in your local area (I practice in Texas and internationally).

In Texas, she would probably be able to find a lawyer, but I don't think they would fight very hard because I do not think the damages are high in her case. For example, if she gets a contingency attorney, the fee will be set at 33-45 percent of the winnings. I think any attorney would assess the settlement value as I have ($5-10K) and will not want to go to trial over it (as they only get $2-4K in payment).

I know the website has actually been changing on your end, so I'm not certain if you will be able to respond through this thread once you close it out. If not, you can always send in a new question and request me directly. At the beginning of your question, say "for ZDNLAW only" and then ask the question.

I've received payment, so whatever you did, you did it correctly. Thanks and have a good night!
Customer: replied 1 year ago.


Good! I paid it and gave you the highest rating, I want to know your time and insight is appreciated. (Love Texas btw, I have family in Sugarland and Corpus)


 


I just wanted to make sure that the 40K plus really was "la la land" and it sounds like it is. (one persons random figures based on the EEOC table based on number of employees from what I could gather from the website)


 


I appreciate that break down.. you have been a great help, If I have further questions I will find you again. Have a wonderful weekend.


 


If you have any other info before we close this out... anything else is appreciated.


 


warmest regards


"Jenny"


 


 

Expert:  TexLaw replied 1 year ago.
I do think the figure is high.

I'm glad to be able to help you.

-ZDN

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