I'm getting out my iPad's magic 8-ball app and looking
into the future. I see a big year for employment law issues in 2012. Here's
where I think we'll see lots of litigation or legislation:
Military: With loads of returning military members, Congress will
scramble to plug any new loopholes that keep military service people from being
protected in their jobs. Look for lots of USERRA litigation when employers
realize they don't want to let the person who has been in the position go when
Johnny comes marching home. Without a doubt.
Sexual harassment: Now that sexual harassment has become a hot-button
political issue again, watch for attempts to weaken sexual harassment
protections. Also watch the federal courts continue to erode what few
protections employees have left. Will the Democrats have the will and the
ability to stop sexual harassment from becoming legal? Very doubtful.
Retaliation: Retaliation has been hot, hot, hot, and it will continue to
be so. Watch for attempts to weaken whistleblower laws, both legislative and
judicial. While the courts have consistently enforced retaliation laws, they've
been reluctant to rule in favor of employees in any situations where there was
doubt about the legislative intent. For instance, the Fair Labor Standards Act
doesn't expressly prohibit employers from discriminating against potential
employees who have sued former employers for overtime or unpaid wages. Watch
for more courts to hold that the word "employees" doesn't mean "potential
employees." Will there be a public outcry when potential employers refuse to
hire people who demanded they be paid? My sources say no.
Bullying: No state will have the political willpower to pass
anti-bullying laws, despite the growing evidence that bullying is more
traumatic for employees than sexual harassment. It is decidedly so.
Tax relief: The Civil Rights Tax Relief Act will stall yet again,
meaning that employment law settlements will continue to be taxed where
personal injury cases aren't. Try again later.
Unemployed: The unemployed will start to get some rights. More states
will pass laws protecting the unemployed against discrimination. Employers will
get more creative in denying them jobs by using credit checks and other
excuses. Eventually, Congress will have to take action, but gridlock is likely
in this election year. Outlook not so good.
Wage theft: As more employers decide the way to save money is to fail to
pay employees or former employees, wage theft laws will begin to spread across
the country. Maybe seeing a few deadbeat employers hauled off in handcuffs will
be good for the economy. As I see it, yes.
Noncompete: Desperate employers trying to prevent employees from
skipping to competitors who will treat them better and pay more money are using
noncompete agreements as virtual indentured servitude. You'd think that elected
officials would look at noncompete abuse and side with their constituents, but
instead the trend is to give employers even more right to restrict competition.
I predict more states will beef up employers' ability to enforce noncompetes.
The good news is that employees with resources will be using antitrust laws and
the lack of legitimate interests to enforce to fight back. Noncompetes will
continue to be the weapon of choice to bully former employees. Without a doubt.
Confidentiality and trade secrets: Agreements where employees promise to
keep employer confidential and trade secret information confidential will go
hand in hand with noncompetes as a weapon against former employees. Employees
who never signed noncompetes will be told by former employers that working for
a competitor would inevitable result in disclosure of confidential information.
Will judges side with employees who resist indentured servitude? Don't count on
Employees strike back: Working people and the unemployed will eventually
wake up to what is happening to them. They'll start standing up for their
rights and demanding that their elected representatives work for them to
restore their right to quit and work somewhere else, to get paid and not have a
potential employer hold that against them, and that they be able to work free
from sexual harassment. Will they do it in time for the November election? Ask
See more employment law posts on Donna Ballman's
blog, Screw You Guys, I'm Going Home.
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