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Etats-Unis - Voies de recours et procédure contentieuse en cas de litiges individuels


Voies de recours et procédure contentieuse en cas de litiges individuels - Etats-Unis - 2017    

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Compensation pour licenciement injustifié - montant librement déterminé par la cour: Non

Remarks:
  • The existence and the extent of compensatory damages for discriminatory dismissals depends on the applicable statutory provisions (see below).

Compensation pour licenciement injustifié - limites légales (plafond en mois ou methode de calcul définie) :
1) Discriminatory dismissals complaints filed with the EEOC:
a) Discriminatory dismissals on account of race, color, national origin, sex (including pregnancy), religion, disability, or genetic information and age: back pay (in lieu of reinstatement or for the period from judgment until reinstatement), as well as attorney's fees and other costs. A two-year statute of limitations applies to the recovery of back pay.
b) Compensatory and punitive damages may be awarded by the Court in cases involving intentional discrimination based on a person's race, color, national origin, sex (including pregnancy), religion, disability, or genetic information (but not age).
There are caps on the amount of compensatory and punitive damages a employee can recover which vary according to the size of the employer as follows:
* $50,000 for employers with 15-100 employees;
* $100,000 for employers with 101-200 employees;
* $200,000 for employers with 201-500 employees; and
* $300,000 for employers with more than 500 employees.

c) For age discrimination under the ADEA, the employee is entitled liquidated damages in an amount equal to lost wages in cases of "wilful violation" in addition to reinstatement and back pay.

2) Under the NRLA, available remedies for unlawful dismissal do not include compensation in lieu of reinstatement. Reinstatement is the ordinary remedy but it can be refused by the employee. The employee will always be entitled to back pay which accrues from the time of the discriminatory discharge until such time as the employer makes a valid offer of reinstatement but is reduced by any interim earnings of the worker on a quarterly basis.

3) No compensation in lieu of reinstatement under OSHA for retaliatory discharge. Available remedies only include reinstatement and back pay.
4) Under the FMLA, available remedies include liquidated damages equal to the amount of any compensation lost or denied in addition to reinstatement, back pay, and reasonable attorney's fees and other costs.
5) Under SOX, available remedies include reinstatement, back pay, and compensation for any special damages sustained as a result of the discrimination, including litigation costs, expert witness fees, and reasonable attorney's fees.
6) Under The Jury System Improvements Act of 1978, available remedies for violations of this law include back pay and reinstatement as well as imposition of a civil penalty of up to $5,000 dollars on the employer and reasonable attorney fees.
7) Under the WARN, if the employer does not provide the requisite advance 60 days' notice, the employer must provide a day's wages for each day notice was not given.

Remarks:
  • Specific legal provisions referred to are listed below:
    1- a):
    *CRA, Title VII: [sec. 706(g)(1)] 42 U.S.C. sec. 2000e-5(g)(1)
    *ADA: [sec. 107], 42 U.S.C. 12117, referring to enforcement provisions of the CRA.
    * GINA: [sec. 207] referring to enforcement provisions of the CRA.
    * AEDA: [sec. 7] 29 U.S.C. sec. 626 (b) by reference to the remedial provisions of the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. sec. 216 (b).
    b) Compensatory and punitive damages for unlawful intentional discrimination: introduced by The Civil Rights Act of 1991 amending CRA Title VII and the ADA, see [sec. 1977A], 42 U.S.C. sec. 1981a. See also GINA [sec. 207(a)2)].
    c) Age discrimination: ADEA [sec. 7] 29 U.S.C. sec. 626 (b): liquidated damages in an amount equal to lost wages in cases of "wilful violation".
    2) NRLA: [sec. 10(c)], 29 U.S.C. sec. 160(c).
    3) OSHA: [sec. 11(c)(2)], 29 U.S.C sec. 660(c)(2)
    4) FLMA: [sec. 104(a)], 29 U.S.C sec. 2617(a)
    5) SOX: [sec. 806] 18 U.S.C § 1514A
    6) JSIA: 28 U.S.C sec. § 1875
    6) WARN: 29 U.S.C. sec. 2104

    Please note that where common law actions based on contract or tort are successful, these will attract the usual remedies available for actions in such suits. Litigants may be awarded equitable relief such as reinstatement and back pay, monetary damages such as reimbursement for lost wages, compensatory damages for pain and suffering and punitive or exemplary damages where the employer is found to have acted maliciously.

Possibilité de réintégration dans l'emploi: Oui

Remarks:
  • - Reinstatement is always available under the anti-discrimination laws:
    * CRA, Title VII: [sec. 706(g)(1)] 42 U.S.C. sec. 2000e-5(g)(1)
    * ADA: [sec. 107], 42 U.S.C. 12117
    * GINA: [sec. 207]
    * AEDA: [sec. 7] 29 U.S.C. sec. 626 (b) by reference to the remedial provisions of the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. sec. 216 (b).
    * NRLA: [sec. 10(c)], 29 U.S.C. sec. 160(c).
    * OSHA: [sec. 11(c)(2)], 29 U.S.C sec. 660(c)(2)
    * FLMA: [sec. 104(a)], 29 U.S.C sec. 2617(a)
    * SOX: [sec. 806] 18 U.S.C § 1514A
    * JSIA: 28 U.S.C sec. § 1875

    However, infringement by the employer of the WARN Act notice provisions does not entail reinstatement: 29 U.S.C. sec. 2104.

    Please note that reinstatement may be awarded where common law actions based on contract or tort are successful.
    In general, the reinstatement is provided as a remedy for breach of a collective agreement or the violation of a constitutional liberty, rather than a remedy for the breach of an individual contract of employment.

Conciliation préalable obligatoire: Oui

Remarks:
  • Although there is no general requirement for mandatory conciliation in unlawful discharge cases, the EEOC, which enforces Title VII, the ADA, the ADEA, and GINA, uses "informal methods of conference, conciliation, and persuasion" to eliminate the unlawful employment practice. Only once this process is exhausted, will the EEOC issue a charging party a "right to sue letter" which permits her/him to proceed in federal court on the claim ([CRA Title VII sec. 706], 42 U.S.C. sec. 2000e-5).
    There is no preliminary mandatory conciliation before the NLRB, however cases can always be settled at any point during the investigation or the litigation process through private settlement or board settlement.

Courts ou tribunaux compétents : juridiction ordinaire ; autorité administative

Remarks:
  • 1) the Equal Employment Opportunity Commission (EEOC), receives and investigates complaints of discrimination. Where investigation reveals reasonable cause to believe that a complaint is true, the EEOC uses "informal methods of conference, conciliation, and persuasion" to eliminate the unlawful employment practice. If no settlement is reached, the EEOC may either file a civil action in federal court or notify the complainant, who may, within 90 days of such notice, proceed to federal court ([CRA, Title VII, sec. 706], 42 U.S.C. sec. 2000e-5).

    2)The National Labor Relations Board (the NLRB or the Board) receives and investigates complaints filed by unions, employers and workers. If, upon investigation of the charge, a threshold of merit is found, the General Counsel may issue complaint. A hearing is held pursuant to the complaint before an Administrative Law Judge (ALJ) regarding the allegations of the complaint, and the ALJ provides a recommended decision and order in the matter. The decision of the ALJ becomes final unless exceptions are filed by either of the parties. If exceptions are filed, the ALJ's decision is subject to review by the Board which issues a final order in the matter ([NLRA, sec. 10(c)],29 U.S.C sec. 160(c)). A person aggrieved by a final order of the Board may obtain review of the order in a United States court of appeals in the appropriate circuit or in the United States Court of Appeals for the District of Columbia ([NLRA, sec. 10(f)], 29 U.S.C sec. 160(f)).

    3) Under the OSHA complaints shall be made to the Secretary of Labour who will investigate it. if merit is found, he or she will bring an action in federal court against the employer ([sec. 11(c)(2)], 29 U.S.C, sec. 660(c)(2)).

    4) Under SOX, an employee who believes s/he has been discharged in violation of this subsection may file a complaint with the Secretary of Labor and, if no final decision is made on the complaint within 180 days, may bring an action in federal district court assuming the delay was not due to bad faith of the employee (18 U.S.C. sec. 1514A (b)(1))

    5) Complaints alleging violation of the WARN Act are heard by the United States district courts (29 U.S.C sec. 2104)

    In addition, the employee can bring common law actions based on contract or tort.

Règlement des litiges individuels par arbitrage: Oui

Remarks:
  • For employees represented by a union, the collective-bargaining agreement setting forth terms and conditions of employment almost always contains a grievance and arbitration clause. An employee who believes s/he has been discharged in violation of the collective-bargaining agreement may file a grievance with the union and the union may proceed to arbitration on behalf of the employee if the matter is not resolved through the grievance process.

Durée de la procédure: 120 jour(s) (légal(e))

Remarks:
  • - Under CRA Title VII, the EEOC is charged to reach a determination in regard to charges filed "as promptly as possible and, so far as practicable, not later than 120 days from the filing of the charge" ([sec. 706(b)], 42 U.S.C.A. Sec. 2000e-5 (b)). However, if the Commission issues the charging party a "right to sue" letter he or she may proceed to federal district court within 90 days of such notice and so the length of the procedure is dependent on whether the individual proceeds to federal court.

    - Under the NLRA, there is no statutory time frame for the conclusion of the NLRB's investigative and adjudicatory process. The duration of the process depends in part on whether exceptions are filed with the Board to the decision of the ALJ and whether final orders of the Board in such cases are appealed to federal court.