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Friday, January 4, 2013

And The Crystal Ball Says: My Predictions for 2013 Employment Law

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.

5. Strikes

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.

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