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Friday, December 28, 2012

My Employment Law Predictions For 2012 (Mostly) Come True

I must be psychic. You may remember my predictions for 2012, done at the end of 2011. I went back over them to see how I did. I was (mostly) right. Here's what I predicted and what actually happened. Next week, I'll make my predictions for 2013.

Prediction 1: Lots of USERRA litigation.


Sure enough, employers didn't want Johnny to march home and get their old jobs back. Returning service members alleged that employers made up charges against them when they got home or simply fired them outright due to their service. An employer raised the ire of the Department of Justice when they reduced military members' pension benefits. In another, DOJ sued when an employer unjustly terminated a service member a year after they returned to work. In a case of first impression, a court found that a release in a severance agreement did not prevent a service member from suing under USERRA. Employers paid out this year when they were caught firing employees for their service.

Prediction 2: Attempts to weaken sexual harassment protections


What I didn't predict was that it would be the military leading the way in failing female workers. Military service members were sexually assaulted and sexually harassed in droves, yet the Department of Defense did little to help female service members. We saw a case where an employer was allowed to fire a female employee because he found her "irresistible" and fired her so he wouldn't sexually harass her. Apparently his wife found inappropriate texts he'd sent her and demanded the employee be fired. And this wasn't sexual harassment? Other cases found not to be sexual harassment: butt slapping by supervisor and making homosexual slurs and using antibacterial wipes around a straight male employee. Courts also made it more difficult to bring class actions for widespread sexual harassment. Sexual harassment victims were ordered to turn over cell phones and social media passwords to support employers' "she asked for it" defensess. In all, a terrible year for sexual harassment victims.

Prediction 3: Courts will weaken anti-retaliation laws

In one court ruling, a Sarbanes-Oxley whistleblower had his claim dismissed when he failed to "approximate the basic elements of a claim of securities fraud." No law degree? No whistleblower claim. Another court found that whistleblowing overseas against a U.S company doesn't count. A U.S. citizen who blew the whistle on illegal activity of a government contractor and who was tortured by U.S. military for his trouble had no remedy according to a federal court.

On the other hand, the President and Congress have enhanced whistleblower protections. The President issued a directive protecting intelligence agency whistleblowers for the first time. Congress passed the Whistleblower Protection Enhancement Act to try to plug some court-created loopholes and expand whistleblower protections.


Prediction 4: No state will pass an anti-bullying law


None did

Prediction 5: The Civil Rights Tax Relief Act will languish again

It did.

Prediction 6: More states will pass laws protecting the unemployed against discrimination

At least 17 states considered legislation to protect the unemployed against discrimination due to the fact that they are jobless. Only two states and Washington DC managed to pass and get laws signed. California passed a law that was vetoed. New Jersey passed a law in 2011. Oregon followed at the beginning of 2012, and no state has passed any such law since. President Obama has proposed the American Jobs Act, which includes a prohibition against discriminating against the unemployed. It didn't pass, at least not in 2012.


Prediction 7: Wage theft laws will start to spread


It's moving glacially, but wage theft laws are starting to happen. Miami-Dade County was the first county in the nation to pass such a law. This year, Broward County, just north of there, passed its own ordinance, to go into effect in 2013. Palm Beach County punted and failed to pass one. A recent study showed that 44 of 50 states have utterly inadequate protections in place to protect employees who are victims of stolen wages. Yet efforts in Houston, Texas; Alachua County, Florida; Shelby County, Tennessee; and the State of New Jersey have so far not passed.

Prediction 8: Employers will gain more rights to enforce noncompetes against employees; antitrust laws will be used to attack noncompetes

Sure enough, employers have continued to use noncompetes to bully employees into staying in terrible jobs, and into bankruptcy if they dare leave. Fortunately, antitrust laws offer a ray of hope. The Department of Justice is pursuing employers who agree not to hire each others' employees for violating antitrust laws. They cite studies showing these agreements suppress wages. Can other noncompete agreements be far behind?


Prediction 9
: Confidentiality and trade secret agreements will be used to prevent employees from working for competitors

Employers are using trade secrets laws, confidentiality agreements, and intellectual property agreements to make grabs at everything employees think of or do while they're working for the company, from Twitter accounts to books to doll designs. Plus, courts are continuing to use the "inevitable disclosure" doctrine to find noncompete obligations even where no noncompete agreement exists.

Prediction 10: Employees will wake up and start fighting for their rights

This year gave me a glimmer of hope that American workers would, as Samuel L. Jackson so eloquently put it, "wake the f*#! up." [Note: please don't click that link at work!] We saw nonunion workers at places like Wal-Mart striking. Later, fast food employees followed suit and rose up against abusive employer practices. We also saw a national election where voters said no to putting a so-called "job-creator" in office, despite bullying tactics by his CEO friends who threatened their employees if they reelected the President.

Next week: my predictions for 2013.

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