EEOC, WHD FY 2020 Enforcement Numbers Fall

Author: Robert S. Teachout, XpertHR Legal Editor

October 22, 2020

The number of enforcement actions for the Equal Employment Opportunity Commission(EEOC) and the Labor Department's Wage and Hour Division (WHD) decreased in fiscal year 2020, following several years of increases. The reversals are tied to the impact of the coronavirus (COVID-19) pandemic on the agencies' enforcement programs.

"For the better part of the last 25 years, the EEOC's Fiscal Year has ended with a predictable spike in the filing of enforcement lawsuits - August and September filings often eclipsed the entire rest of the year combined from a numbers standpoint," said Gerald Maatman, a partner in Seyfarth Shaw's Chicago office. "Not so this year." Seyfarth, which tracks the litigation, reported onĀ  the EEOC data on its website.

The EEOC filed only 33 lawsuits in September of this year compared with 52 filed in September of FY 2019 and 84 in FY 2018. The total number of lawsuits filed for the year also fell dramatically. As the fiscal year closed at the end of September, the agency had filed only 101 suits (94 merits lawsuits and 7 subpoena enforcement actions). By contrast, total cases in the previous two years were:

  • 149 total EEOC cases in FY 2019 (141 merits lawsuits and 8 subpoena enforcement actions); and
  • 217 actions in FY 2018 (197 merits lawsuits and 20 subpoena enforcement actions).

"FY 2020 went in an unexpected direction by a number of factors - most notably the COVID-19 pandemic and a change in the Commission's leadership - thereby causing a reduction in the number of lawsuits in the EEOC's enforcement and litigation program," said Maatman.

As the COVID-19 pandemic began to force businesses to shut down and made in-person investigations difficult, the EEOC took steps to address the difficulties faced by parties to a charge. In March 2020, the EEOC announced that it would cease issuing charge closure documents (i.e., Notices of Right to Sue). By doing so, the agency effectively extended the time in which employees could pursue their own court actions. The EEOC began to issue Right to Sue notices again beginning August 3, 2020.

Like the EEOC, the WHD enforcement statistics had been increasing over the past two fiscal years. However, the number of investigations and amount of recovered minimum wages and overtime pay reported by the WHD is expected by be significantly lower for FY 2020.

In August, the Labor Department's Inspector General stated that, as a result of the coronavirus pandemic, the WHD has conducted most of its investigations remotely, with only four in-person investigations for Families First Coronavirus Response Act (FFCRA) violations being conducted from March through May. Further, only 213 agency-initiated investigations generally were initiated in April 2020 compared to 799 in April 2019, a reduction of 73 percent.

Preliminary data also show at least a $50 million decrease for FY2020 recoveries, down from the record high of $322 million for FY2049 and $304 million collected in FY 2018. Final WHD data for FY 2020 have not been released yet.