Last year I did pretty well with my predictions. Here's
what I see on the horizon for 2013.
1. Even More Active NLRB
With zero Republicans left, the possibility of gridlock is nil. We've seen a
very active NLRB on issues involving non-union workplaces. Look for stepped up
activity against employers on social media restrictions, attempts to suppress
worker concerted activities and lopsided agreements. NLRB will do what other
government agencies have punted on: help employees.
2. EEOC Will Start Stepping Up
Not to be outdone by NLRB, EEOC will become more active as well. This year saw
the beginnings of activity to address gay rights and retaliatory
confidentiality agreements. Look for more activity that actually helps
employees, and for an agency that no longer accepts employer position
statements as gospel.
3. Marijuana Litigation
With flat-out legalization in two states and legal medical marijuana in many
more, we'll start to see litigation on the employment-protection provisions
built into many of these new state statutes. The fact that it's still illegal
under federal law will make things complicated. Will the feds finally give up
and recognize state's rights? Probably not this year, but definitely within the
next 5 years.
4. Gay Rights Expansion
Speaking of states' rights, with gay marriage spreading across the country, the
feds can't be far behind. We probably won't see Congress adding sexual
orientation to Title VII or gay spouses to FMLA this year, but I think it's
going to happen this Presidential term.
All of a sudden, workers are waking up. They've realized they don't have to put
up with crappy working conditions in silence. We'll see more non-unionized
workforces going on strike. We'll also see some Wal-Mart and fast food
corporations retaliating for the strikes that have happened last year and which
will continue in 2013. Fortunately, I think NLRB will take action to slap
employers for illegal retaliation.
6. Federal Courts Become (Slightly) Less Anti-Employee
While federal courts have long been a sad place for employees, especially here
in the 11th Circuit, some recent cases indicate that the times may be changing.
Look for some rulings in favor of employees for a change. All it will take is a
couple of Supreme Court appointments over the next four years and it will be a
different world for employees. This year, the Supremes will, for the most part,
continue to bend toward corporate interests instead of the working people.
7. Arbitration Under Fire
Although arbitration clauses have been the darling of employers, who are
sneaking them into applications, handbooks and that giant stack of papers
employees sign on their first day, look for some attacks this year coming from
government agencies. The courts tend to love arbitration because it clears
their dockets, so expect little help from those in robes. Watch for NLRB, EEOC,
FTC and maybe even DOJ to subject arbitration agreements to extra scrutiny.
It's doubtful Congress will take action this year, but if they do something to
help consumers, employees will probably be able to benefit.
8. Bullies Will Slide
Although states periodically consider anti-bullying laws, they always fail to
pass. It's likely 2013 will be no different. Watch for more
consciousness-raising but no legal action this year.
9. Privacy Protections
More state legislatures will pass laws against demanding employee social media
passwords and other egregious employer snooping. Congress might even do
something to stop some of the worse invasions of privacy, but I won't hold my
breath. They're too busy with gridlock to actually do anything that might
protect their constituents.
10. Background Check Restrictions
More states will place limitations on background checks and what background
information employers can use against applicants. Watch for laws limiting use
of criminal records, unemployment, and credit history against applicants. EEOC
will continue looking for disparate impact of background check information
against women and minorities. It's only a matter of time, say 2013 or 2014,
before we see a case arguing that use of criminal records has a disparate
impact on men, but it won't come from EEOC.
One thing for sure: 2013 will be a hot year for employment law issues. Stay
tuned here and on my Twitter feed for the latest updates.
See more employment law posts on Donna
Ballman's blog, Screw You Guys, I'm Going Home.
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