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Employers better beware

Business owners and managers, listen up: Someone could be watching your operation for signs of discrimination.

Since the Equal Employment Opportunity Commission opened a Las Vegas office in August, the agency’s local activity has increased, and labor lawyers say more area businesses could find themselves entangled in discrimination lawsuits.

Establishing an outpost in Las Vegas has meant more local business for the commission. The office houses a full-time attorney and three investigators, with a fourth on the way. The added manpower has allowed the agency to file more lawsuits: Commission lawyers have 16 lawsuits in federal court today, compared with five lawsuits in all of fiscal 2006, eight lawsuits in fiscal 2005 and nine lawsuits in fiscal 2004.

The uptick in legal activity has local defense attorneys on guard.

“I tell my clients routinely that because of the heightened presence of the EEOC here in Las Vegas, they have to be extraordinarily careful because they and every one of their colleagues are under a microscope now,” said Scott Abbott, an employers’ defense attorney and managing partner of the Las Vegas law firm of Kamer Zucker Abbott.

Anna Park, a regional commission attorney based in Los Angeles, said she’s pleased that lawyers are advising employers to be vigilant.

“There’s a sense in the cases we’ve done in Southern Nevada that there’s somehow no accountability,” Park said. “Employers think, ‘It’s the way we’ve always done it,’ or they think no one is going to call them on what is a real violation of federal law. When we do take action, they’re surprised. They shouldn’t be surprised. The (anti-discrimination) law has been in place since the 1960s.”

The commission is focusing locally on charges involving sexual harassment, age discrimination and retaliation against employees who report poor treatment on the job, Park said. A local restaurant told a man who applied for a job as a food server that the eatery reserves positions on the wait staff for women only. Another local business fired most of its older workers on the same day. Racial slurs were habitual at one local business. And commission officials have noticed an upswing in serious sexual harassment that includes physical touching and demands from superiors for sexual favors.

“The cases we’ve brought are pretty severe and pretty blatant,” Park said. “They’re not very subtle.”

Recent commission cases have ensnared notable businesses, including Lawry’s restaurant, U-Haul, the Golden Nugget and Caesars Palace.

Demographic shifts and economic vitality in Nevada are encouraging the commission’s closer look at equal-employment opportunities in the Silver State, Park said. A growing, diverse base of residents means more people to protect, she said, and businesses that expand quickly to serve an increasing population can be prone to hiring mistakes. That’s because there’s often pressure to hire many workers quickly, and an emphasis on growth can leave little time for training managers in the legalities of staffing an operation, Park said.

Mary Chapman, a plaintiffs’ attorney who represents employees filing workplace lawsuits, said the new office should help protect more local workers. Nevada doesn’t have many plaintiffs’ attorneys who handle employment law, because labor law often involves fact-heavy cases that can last as long as half a decade, Chapman said. Plus, employment law changes frequently, and it can be difficult for attorneys to keep up with the changes.

“Any extra help we (attorneys) can get in enforcement is important,” Chapman said. “It’s very good for workers.”

Lawyers who defend employers from workplace claims see less of a need for a local commission office. They say gains in the number of cases the agency handles are due to factors that have little to do with a rise in demand for the commission’s services.

Brisk population growth and record visitor volumes in Las Vegas have placed the area on “everyone’s radar screen” and drawn the attention of groups such as the commission, said Abbott, who’s representing the Golden Nugget in a harassment suit the commission filed in October.

Employees today are also more sophisticated about recourses for resolving workplace disputes than they were 10 to 15 years ago, Abbott said, so they’re more likely to seek redress through attorneys or federal agencies.

Patrick Hicks, founding partner of the Nevada office of Littler Mendelson, said he believes the agency is filing more lawsuits to justify its presence in Nevada.

“The increase in the number of claims is not, in my opinion, a reflection of the fact that there’s more discrimination in the market,” Hicks said. “(The commission is) here, and they’re going to do more.”

Hicks has practiced as a labor lawyer for more than 20 years, and he said a number of the commission’s current lawsuits seem flimsy compared with actions filed before the local office opened.

“Some of these cases are flat-out weak,” Hicks said.

Abbott also believes the surge in commission lawsuits comes less from pent-up demand for its services than from an interest in making the case for a Nevada office.

“In my opinion, they’re trying to validate their move to Las Vegas by being more aggressive in challenging employers when complaints come to their attention,” Abbott said.

Defense lawyers say the commission’s effort to substantiate its local office is evident in the types of cases its attorneys are filing.

Just before the commission’s local office opened in August, Hicks said, he noticed growing activity in class actions — lawsuits that involve multiple plaintiffs and hinge on allegations of companywide discrimination.

Abbott said he’s also seen greater commission interest in class-action lawsuits. He believes the agency is pursuing more class-action cases so it can get bigger judgments against high-profile employers and subsequently generate widespread publicity.

Park responded that the commission doesn’t need to make a case for its Las Vegas office. Before the Las Vegas office opened, about half of the lawsuits filed through the commission’s regional office in Southern California came out of Nevada. If there weren’t charges to investigate, Park said, the agency wouldn’t be here.

She acknowledged that the commission is concentrating on class action cases, but she credited the emphasis to scarce resources. Taking cases that involve numerous plaintiffs is a way for the commission to help more people per action filed, Park said. The agency won’t turn away individual complainants if officials think “something is seriously wrong” and the worker has no other recourse for legal action, Park added.

In the future, Park said, she’d like to see the Nevada commission office zero in on cases involving human trafficking. Employers who hire agencies to bring workers to America can be liable if the agency doesn’t pay, feed or house such workers, she said.

Park said the commission’s potential for business is so significant in Southern Nevada that it could use two more lawyers on top of the one already on staff here, but budget constraints could keep the commission from hiring new legal help. She doesn’t foresee any near-term additions to the legal staff of the office.

The commission’s local office might not receive any new legal help, but that doesn’t mean Las Vegas companies don’t need to stay proactive.

“There’s always going to be a small subset of employees who feel a company is not doing the right thing by them or that people are not acting in an appropriate manner,” Abbott said. “Employers need to make sure their employees are trained appropriately to know who to go to in the company or how to proceed if there are problems.”

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