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Friday, December 30, 2011

Donna’s Employment Law Predictions for 2012

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 it.

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 again later.


  1. Nice post, I found this on google

  2. I was hired to work for the Department of the Air Force (DAF) as a Schedule A employee which means that they knowingly hired me with the knowledge that I have a severely physically impairment and was under medical care.  On the first day of employment, I requested a reasonable accommodations in the form of a special chair that amounted to less than $200.  Although the medical information I submitted before I was hired that noted my impairment was available at human resources, I was asked by my supervisor to resubmit the information from my Physician at the Veteran's Hospital.  Scheduling an appointment at a Veteran's Hospital commonly takes  2-3 month to get.
    Due to my severe pain, I waited at my Physician's office for 8 hours with no appointment in order to get the document the Air Force supervisor asked me for.  
    Once I presented the Physician's letter that stated my impairment and the type of chair I needed,  my supervisor told me that funding wasn't available even though I gave her this additional, repeat document less than a week from the time she requested it.  I spoke to the workplace purchaser with the charge card and he confirmed available funding and stated it was being used  for miscellaneous office items by management.  
    After the continual refusal to purchase my accommodation, my injury had worsen and I requested and was denied LWOP for medical treatment. I filed a Department of Labor (DOL) injury report which my employer refused to sign the section specific to them in order to fail to submit my injury report.  This meant the incident could never be investigated since it was purposely not submitted by my supervisor and became nonexistent to the DOL.  

    After 6 months of aggravating my already severe condition, being verbally harassed in an effort to force me to quit, falsely reporting negative reports to human resources as well as referring to me as a drug addict for taking my prescribed medication for my impairment, I was forced to resign.

    I filed a complaint of workplace discrimination with the military EEO in 2012 while still working for the (DAF).  Additionally, in February 2013, I requested the EEO evidence gathered which included witness interrogation and emails in addition to voice recordings of the harassment I received, to be investigated by the Federal EEOC Agency which claims to be impartial.  The EEOC reported a backlog in complaints and a lack of resources and administrative judges and stated it could take years to address my charges.  

    After future research,  I learned that this is the game played by employers, Agencies and EEOC Administrative Judges.   Employers realize that employees do not have the monetary resources to pursue their rights. They also realize that the EEOC backlog leaves no possibility for an investigation.

    The Agency like in my case (the Secretary of the Air Force) already has the paid staff on hand to circumvent these issues by taking their time to address the charges in hopes that the complaining employee will quit,  give up or exceed the established EEOC timelines; thereby, tossing the complaint out as if the suffering of a disabled veteran in the workplace meant nothing.  The  Agency  in my case,  continues to file motions to suppress a hearing with the EEOC so that the evidence I presented along with witness interrogations to support my case, including emails and voice recordings could never be heard.  The EEOC Administrative Judges which are already backlogged and understaffed, use this as an opportunity to never open your file to even acquaint themselves with the charges you are making, the file that in my case presented the greatest violation to me as a military disabled veteran and as an individual which i put together myself since i do not have an attorney; will never be heard because the Administrative Judge personally called me to tell me it's not going to happen.


I appreciate your comments and general questions but this isn't the place to ask confidential legal questions. If you need an employee-side employment lawyer, try http://exchange.nela.org/findalawyer to locate one in your state.