EEOC Delays Issuing Right-To-Sue Notices

Negatively Impacts Employer Defenses to EEOC Charges

It is an understatement to say that the COVID-19 pandemic has severely impacted the financial well-being of employers and employees. Businesses have been forced to shut their doors, leading to terminations, furloughs, layoffs, and more than 16 million unemployment claims. This will likely result in increased filings of agency charges. In response, the Equal Employment Opportunity Commission (“EEOC”) paused issuing right-to-sue notices (“RTS Notices”) to employees who have filed charges, unless such employees specifically request RTS Notices. 

“The [EEOC] confirmed Tuesday [April 7, 2020] that it has largely paused its issuance of key notices that start the clock for workers to sue their employers for bias, the same day that civil rights advocates urged the agency to do more to safeguard workers’ ability to pursue claims during the novel coronavirus pandemic.”

Prior to the EEOC’s pause, many of the allegations in a Charge stemmed from conduct that occurred six months before the Charge was filed with the EEOC and around 1-2 years before a complaint was filed in court, depending on how long the EEOC investigation took. 

Once charge filers receive an RTS Notice, they have 90 days to file a lawsuit in court.  Thus, the EEOC’s pause is an effort to delay triggering the 90-day deadline. With this pause, it could be an undetermined amount of time before a complaint is filed in court. Employee separations due to COVID-19 could lead to the loss of potential witnesses for both sides of an EEOC Charge. As a result, the delayed issuance of RTS Notices may result in it being even more difficult for employers to mount a defense against discrimination lawsuits that are filed against them in the coming months.

Because of the EEOC’s action, employers can expect an uptick in lawsuits once the EEOC lifts its pause.  There also may be an increase in suits under the Families First Coronavirus Relief Act, which is administered by the Department of Labor, rather than the EEOC.  Employers may see an increase in National Labor Relations Act charges as employees work together to attempt to improve their working conditions, including the availability of personal protective equipment, hazard pay and remote work options.  Finally, employers can expect tort claims, like wrongful death suits, filed by employees or their families, if employees believe their employers unnecessarily exposed them to COVID-19. 

Employers must be diligent about maintaining information regarding what they did to protect employees, what policies and procedures they have in place, what investigations were conducted, and getting as much information from their employees, including signed statements and the best contact information from employees so that they can be reached if they are needed as witnesses down the road.

At ELS, we are monitoring COVID-19 developments and related laws so that we can advise our clients during this difficult time.  Let us know how we can help you.  We are all in this together! 

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