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 The U.S. Equal Employment Opportunity Commission (EEOC) issued its annual Performance Report last week, stating that the agency is making progress in rebuilding its capacity to enforce the civil rights laws protecting the nation’s workers. Over the past two years, the EEOC has begun to replenish its depleted ranks and dedicate significant resources to training employees, the largest sustained training effort the agency has conducted in at least a decade.

As a result, the federal agency ended Fiscal Year 2010 with 86,338 pending charges—an increase of only 570 charges, or less than one percent. Between fiscal years 2008 and 2009, the EEOC’s pending inventory increased 15.9 percent.

“The EEOC is on the path toward rebuilding and on track to make further progress in the upcoming fiscal year to more efficiently and effectively enforce the federal laws prohibiting employment discrimination,” said EEOC Chair Jacqueline A. Berrien.

The EEOC received a record 99,922 charges in FY 2010, which ended Sept. 30, —the highest number of charges in the agency’s 45-year history. EEOC staff also delivered historic relief for victims of workplace discrimination. The agency secured more than $319 million in monetary benefits for individuals—the highest level of relief obtained through administrative enforcement in the Commission’s history. Among other agency achievements:

• The mediation program ended the year with a record 9,370 resolutions, 10 percent more than FY 2009 levels, and more than $142 million in monetary benefits;
• The EEOC also expanded its reach to underserved communities by providing educational training, and public outreach events to approximately 250,000 persons;
• The agency continued its concerted effort to build a strong national systemic enforcement program. At the end of the fiscal year, 465 systemic investigations, involving more than 2,000 charges, were being undertaken;
• The EEOC resolved a total of 7,213 requests for hearings in the Federal Sector, securing more than $63 million in relief for parties who requested hearings. The agency also timely resolved more than 66 percent of Federal Sector appeals.

The EEOC’s FY 2010 annual Performance and Accountability Report is posted on the agency’s web site at http://www.eeoc.gov/eeoc/plan/2010par.cfm. Comprehensive enforcement and litigation statistics for FY 2010 will be available in early 2011.

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 The cross-street of social media and the workplace continues to complicate the relationship between employers and workers.  This week the government has filed a fascinating case under the National Labor Relations Act ("NLRA") alleging that an employer illegally terminated an employee for posting negative comments about her supervisor on the Facebook social media site.

To my knowledge, this is the first time the NLRB (or any other agency for that matter) has taken such a position in court.  The Board's position is that an employee's activity of discussing the workplace online is protected "concerted" activity under the NLRA.  Generally, the NLRA forbids employers from retaliating against employees (whether unionized or not) for discussing working conditions.  The Board has taken the position that it makes no difference whether the discussion is around the traditional water cooler or around the new digital water cooler that is social media - protected activity is protected activity.  

The NLRB's position would seem to call into questions many companies' current social media policies, which forbid making negative postings about the employer on the internet. Arguably such policies are now illegal under the NLRB's interpretation of applicable law.  And remember -- this applies to all employers, whether unionized or not.

This will be an interesting case to watch.  An administrative law judge is scheduled to begin hearing the case on Jan. 25.  The material I have read about this case indicates that the Facebook post was responded to by several co-workers who were the employee's Facebook "friends".  I think this likely bolsters her position considerably.  A much more difficult question would be a situation in which an employee makes such a post but has no co-workers as Facebook friends or has co-workers as friends but cannot establish that any of them saw or were otherwise aware of the posting.

Source: New York Times Article

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