I made some predictions last year about what to expect in 2022. How did I do? Pretty darned well. Here is the breakdown.
1. More pro-employee NLRB: I predicted we'd see NLRB cracking down on employer retaliation and union busting efforts, and we'd also be back to seeing more pro-employee decisions on non-union "concerted activity" retaliation. This year they expanded the remedies that can be awarded for unfair labor practices, reinstated the possibility of micro-units, required employers to give access to union protesters, and are undoing the Trump-era anti-employee joint employer rule to make it easier for employees to bring claims.
2. EEOC will re-energize: I predicted they'd start to bounce back from the severe cuts under the past administration, and they have. They're catching up on backlog and hiring more mediators. I also predicted that they would focus on issues like sexual orientation that got pushed aside under the last administration, and they have. However some conservative courts vacated a guidance on this topic so the fight will continue to go on.
3. Supremes go anti-employee: I predicted that, while the agencies will be more pro-employee, the courts are going to take a sharp anti-employee turn. I said we should look for really pro-management decisions on the federal level. Yeah. That happened. Sigh.
4. Paralysis on noncompetes: I predicted that, even though President Biden issued an executive order asking the federal agencies to focus on noncompetes, there would be little the agencies can do without legislation. I predicted that Congress won't do anything. It didn't. I predicted that neither will the Florida legislature. It certainly didn't. However, the FTC just announced it plans to ban noncompetes. How will that work? I suspect not well, and there will be a huge fight, but we'll see.
5. Sexual harassment crackdown: I predicted that, with President Biden's order criminalizing sexual harassment in the military, the issue will get more attention. I predicted we would see some more crackdown on sexual harassers. The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act was signed in March, and that's a good step in the right direction.
6. COVID, COVID, COVID: I predicted the virus wouldcontinue to be an issue. Yeah. SMH. I predicted that OSHA would continue to try to get employers to maintain safe workplaces. The Supremes and the right wing will continue to fight. The Supremes blocked OSHA’s national Emergency Temporary Standard which required employers with at least 100 employees implement mandatory COVID vaccination for employees or opt for a weekly testing alternative. I predicted Florida would continue to be the Wild West. And it did. It just empaneled a grand jury to investigate vaccine mandates. Sigh.
7. More unions: I predicted that, as NLRB becomes more employee-friendly, we'd see more unionization attempts. I predicted that Amazon would have a union in 2022, and I'm proud to day my daughter was part of that successful effort. I predicted that, once Amazon had a union, employees of other workplaces previously thought impossible would begin efforts to unionize. They did. I also precicted that union busters would make a fortune in 2022 as employers try to fight back. They almost certainly did.
8. Disability discrimination: I predicted that, now that employees realize that it's easy to work remotely, and now that employers want employees back in the office, we'd see more disability discrimination cases. I predicted that employees who sought remote work as a reasonable accommodation would face resistance, but employers would lose the argument that granting the accommodation is a hardship. There have been quite a few cases this year, and more are in the pipeline.
9. Zoom: I predicted that Zoom would remain in many courtrooms, depositions and mediations. So far that has been the case.
10. Anti-employee laws: I predicted some extreme anti-employee laws in red states attacking LGBT folks, abortion, marijuana, protests, and free speech. And, of course this has happened. I did not predict that Roe would be overturned last year, but it is something I certainly have been warning about for years as a possibility. The red states have gone nuts. Florida in particular. It will get worse before it gets better.
Showing posts with label predictions. Show all posts
Showing posts with label predictions. Show all posts
Thursday, January 26, 2023
Thursday, January 27, 2022
What To Expect In #Employment Law In 2022
If you are a regular reader, you've probably noticed that I haven't done any predictions in the past few years. Because how could anything have possibly been predicted? But employment law is becoming more predictable now, and I think it's time to take a deep breath and do my Cassandra bit. Here are my predictions for 2022:
1. More pro-employee NLRB: We've already seen this with some very pro-employee, pro-union decisions coming down regarding Amazon, Starbucks, and other unionization attempts. As the year progresses, we'll see NLRB cracking down on employer retaliation and union busting efforts. We'll also be back to seeing more pro-employee decisions on non-union "concerted activity" retaliation.
2. EEOC will re-energize: They were cut to the bone in budget and staffing under the last administration, so it's taking a bit for them to bounce back. They'll also focus on issues like sexual orientation that got pushed aside under the last administration. I hope they'll fully staff the mediation divisions, because those folks are really terrific at settling cases.
3. Supremes go anti-employee: Unfortunately, while the agencies will be more pro-employee, the courts are going to take a sharp anti-employee turn. Look for really pro-management decisions on the federal level.
4. Paralysis on noncompetes: Even though President Biden issued an executive order asking the federal agencies to focus on noncompetes, there's little the agencies can do without legislation. Congress won't do anything. Neither will the Florida legislature. Maybe some pro-employee states will limit or ban noncompetes. Some have done it already. Will more follow?
5. Sexual harassment crackdown: With President Biden's order criminalizing sexual harassment in the military, the issue will get more attention. Where the military goes, usually goes the rest of the nation, so we should see some more crackdown on sexual harassers.
6. COVID, COVID, COVID: The virus will continue to be an issue. OSHA will continue to try to get employers to maintain safe workplaces. The Supremes and the right wing will continue to fight. Florida will continue to be the Wild West.
7. More unions: As NLRB becomes more employee-friendly, we'll see more unionization attempts. Once Amazon is forced to allow a union (and it will happen this year), employees of other workplaces previously thought impossible will begin efforts to unionize. Some will succeed. The Great Resignation has made employees more conscious of working conditions. They'll continue to fight to be treated fairly. Union busters will make a fortune this year as employers try to fight back.
8. Disability discrimination: Now that employees realize that it's easy to work remotely, and now that employers want employees back in the office, we'll see more disability discrimination cases. Employees who seek remote work as a reasonable accommodation will face resistance, but employers will lose the argument that granting the accommodation is a hardship. After all, they had a year or more of remote work very successfully.
9. Zoom: I don't know about you, but I love Zoom. Having to do a 2 - 3 hour round trip for a 5 minute hearing is a huge waste of resources. Judges like it because they have more control. For non-evidentiary hearings, Zoom will remain in many courtrooms. We'll also continue to see more Zoom depositions and mediations, which work very well on that platform. This will make attendance by employees much less onerous. They won't miss as much work, for one. In employment law, it will be a huge benefit. I find that employees are way more likely to settle in a Zoom mediation where they feel comfortable and more relaxed. Employers will also continue to utlize Zoom or similar platforms for meetings rather than having employees commute from remote locations.
10. Anti-employee laws: We'll see some extreme anti-employee laws in red states as the right wing pushes to be more and more extreme. Expect some laws attacking LGBT folks, abortion, marijuana, protests, and free speech. Some of these laws will give employers extra protection against lawsuits for terminating employees for their activities outside of work.
Well, that's about all I think I can predict for now. Let's see how I do. It's still crazy out there, but hopefully things will get a bit more normal as 2022 progresses.
Friday, January 25, 2019
My Employment Law Predictions For 2019
Honestly, I thought about skipping predictions this year, because what's happening with the president is unpredictable. However, I'll take my best shot. Here are my predictions for employment law in 2019:
Overall, we'll have a bad year for employees, with some possible hope in Florida for a change. Vote better folks.
- Florida might be more pro-employee: Although our new governor was a Trump pick, I don't think that's the end of the story. He's already fighting to lift some legislatively-imposed restrictions on medical marijuana. His new Chief of Staff was also Charlie Crist's Chief. You might remember that Charlie, although a Republican at the time, was actually pretty good for employees in Florida. I'm thinking we might get some pleasantly pro-employee action out of Tallahassee this year. The legislature is still gruesomely anti-employee though. So we'll see if the new governor can make a difference for working people.
- More anti-employee executive orders: One thing that Trump has been consistent with is his attacks on working people. He'll continue his anti-employee agenda.
- More anti-employee federal agencies: All the federal agencies that are supposed to be helping working people, like OSHA, DOJ, EEOC, and NLRB have become more anti-employee under Trump. That will continue.
- Anti-employee Supreme Court: The Supremes will be pretty consistently anti-employee. They already upheld the transgender military ban. It will only get worse.
- Pro-employee legislation in the House: The House will pass multiple pro-employee laws. The Senate won't. Even if something miraculously got through, it wouldn't be signed. Sad.
- Legal marijuana will spread: Despite repeated promises from the Trumpian DOJ to crack down, more states will legalize marijuana. Some will even protect employees from being fired for legal use, or from being fired for approved medical use.
- Federal employee slavery will end: Eventually, the shutdown will end and the enforced work-without-pay of federal employees will end. Will this cause federal employee unions to demand more protections? Will people leave the federal government in droves knowing this could happen again and again? Very possibly.
Overall, we'll have a bad year for employees, with some possible hope in Florida for a change. Vote better folks.
Friday, December 21, 2018
How I Did On My Predictions for 2018
I predicted that 2018 would not be a good year overall for employees, and I was right. Here's how my predictions turned out.
Sexual harassment: I predicted that, despite all the brouhaha on #MeToo and sexual harassment, no new legislation would pass and that there would be backlash, and lots of it. There was no way I could predict Kavanaugh though. On the federal level, there was no new legislation, but the states stepped in and took some action. Much of the legislation related to sexual harassment by legislators, which was rampant. Many states decided to police their own. New York stepped up in a big way with prohibition of mandatory arbitration clauses and confidential sexual harassment settlements, among other changes to their sexual harassment laws. Still no laws that I've seen protecting unpaid interns from sexual harassment.
Agency paralysis: I predicted that, with cuts to EEOC, DOJ and NLRB, these agencies would develop backlogs and go into paralysis. I predicted that employees could expect little help from the feds this year. While EEOC actually went into overdrive to clear some backlogs, it was at the expense of employees actually expecting real investigations and serious treatment. DOJ and NLRB went out of their way to reverse Obama-era policies and decisions that favored employees. I said it last year and I was right, that EEOC mediations are still going strong. I stand by my statement that EEOC mediators, at least down here, are some of the best I've ever seen, government or private. I predicted that we would still see cases resolved in EEOC mediations unless the mediation program is cut too. That was correct, but I have noticed that fewer cases are being chosen for mediation, so there were clearly cuts to the mediation program.
Guns at work: I predicted that, thanks to high school students down here, we might start to see states revisiting those idiotic guns at work laws that have been all the rage. I was wrong. Not one state repealed these laws, and West Virginia passed one. I predicted some baby steps on common sense gun control for the first time in this country in a long time, and there was, but we have a long way to go.
Immigration raids: I predicted we'd see more employers being raided to round up illegal immigrants and arrest the bosses for hiring them, along with more traffic stops to round up immigrants. I was right. I never predicted we'd see families separated at the border.
Antitrust: The Department of Justice announced it would start cracking down on no-poach agreements between employers. I predicted this would be a ray of sunshine in an otherwise awful year for employees. DOJ brought a whopping one no-poach antitrust suit this year. It settled. Huzzah!
LGBT rights: I predicted the courts would continue to battle over whether or not Title VII'a sex discrimination prohibition covers sexual orientation. I said the Supremes wouldn't get to the issue this year, and they didn't.
Marijuana crackdowns: I predicted that the feds would start cracking down on legal marijuana use. It's still illegal on the federal level, no matter what your state says. I predicted the crackdown this year would be on the businesses, not on individuals. Fortunately, nothing much happened, and it was Jeff Sessions who was really fueling the anti-marijuana stuff on the federal level. He's gone, so yay I guess.
Overall, we saw nothing much pro-employee in 2018, and lots more reversals of Obama-era pro-employee policies. We saw anti-employee judges and NLRB members appointed. We saw chaos at DOJ. I'd give 2018 a big thumbs down from employees.
Sexual harassment: I predicted that, despite all the brouhaha on #MeToo and sexual harassment, no new legislation would pass and that there would be backlash, and lots of it. There was no way I could predict Kavanaugh though. On the federal level, there was no new legislation, but the states stepped in and took some action. Much of the legislation related to sexual harassment by legislators, which was rampant. Many states decided to police their own. New York stepped up in a big way with prohibition of mandatory arbitration clauses and confidential sexual harassment settlements, among other changes to their sexual harassment laws. Still no laws that I've seen protecting unpaid interns from sexual harassment.
Agency paralysis: I predicted that, with cuts to EEOC, DOJ and NLRB, these agencies would develop backlogs and go into paralysis. I predicted that employees could expect little help from the feds this year. While EEOC actually went into overdrive to clear some backlogs, it was at the expense of employees actually expecting real investigations and serious treatment. DOJ and NLRB went out of their way to reverse Obama-era policies and decisions that favored employees. I said it last year and I was right, that EEOC mediations are still going strong. I stand by my statement that EEOC mediators, at least down here, are some of the best I've ever seen, government or private. I predicted that we would still see cases resolved in EEOC mediations unless the mediation program is cut too. That was correct, but I have noticed that fewer cases are being chosen for mediation, so there were clearly cuts to the mediation program.
Guns at work: I predicted that, thanks to high school students down here, we might start to see states revisiting those idiotic guns at work laws that have been all the rage. I was wrong. Not one state repealed these laws, and West Virginia passed one. I predicted some baby steps on common sense gun control for the first time in this country in a long time, and there was, but we have a long way to go.
Immigration raids: I predicted we'd see more employers being raided to round up illegal immigrants and arrest the bosses for hiring them, along with more traffic stops to round up immigrants. I was right. I never predicted we'd see families separated at the border.
Antitrust: The Department of Justice announced it would start cracking down on no-poach agreements between employers. I predicted this would be a ray of sunshine in an otherwise awful year for employees. DOJ brought a whopping one no-poach antitrust suit this year. It settled. Huzzah!
LGBT rights: I predicted the courts would continue to battle over whether or not Title VII'a sex discrimination prohibition covers sexual orientation. I said the Supremes wouldn't get to the issue this year, and they didn't.
Marijuana crackdowns: I predicted that the feds would start cracking down on legal marijuana use. It's still illegal on the federal level, no matter what your state says. I predicted the crackdown this year would be on the businesses, not on individuals. Fortunately, nothing much happened, and it was Jeff Sessions who was really fueling the anti-marijuana stuff on the federal level. He's gone, so yay I guess.
Overall, we saw nothing much pro-employee in 2018, and lots more reversals of Obama-era pro-employee policies. We saw anti-employee judges and NLRB members appointed. We saw chaos at DOJ. I'd give 2018 a big thumbs down from employees.
Monday, February 26, 2018
My 2018 Predictions
Okay, okay. So I've been promising these for awhile. It has taken me a bit to wrap my head around things that have happened so far since the presidential election. The good news is that the GOP remains the party that couldn't shoot straight (no pun intended). So far, little has been done against employees on the legislative front. It's mostly been done by executive order.
So what can we expect for the rest of 2018? Here are my predictions:
Sexual harassment: Despite all the brouhaha on #MeToo and sexual harassment, no new legislation will pass and we'll see some judicial and jury decisions penalizing sexual harassment victims. There will be backlash, and lots of it.
Agcncy paralysis: With cuts to EEOC, DOJ and NLRB, these agencies will develop backlogs and go into paralysis. Employees can expect little help from the feds this year. The one hopeful thing I see is that EEOC mediations are still going strong. The EEOC mediators, at least down here, are some of the best I've ever seen, government or private. We will still see cases resolved in EEOC mediations unless the mediation program is cut too.
Guns at work: Thanks to high school students down here, we may start to see states revisiting those idiotic guns at work laws that have been all the rage. On the other hand, the orange one is pressing to arm teachers in classrooms. What could possibly go wrong? I think we will actually see some baby steps on common sense gun control for the first time in this country in a long time. It will take awhile, probably years, but there will probably ultimately be a drop in workplace shootings if these laws pass.
Immigration raids: We've already started to see employers being raided to round up illegal immigrants and arrest the bosses for hiring them. We're also seeing traffic stops to round up immigrants. That will continue. Employers and employees beware.
Antitrust: The Department of Justice has announced it will start cracking down on no-poach agreements between employers. That's a ray of sunshine in what will be an awful year for employees. I would caution employers who threaten to sue competitors for hiring former employees, then quietly settle with a no-poach agreement. The government will come after you as well as my colleagues and me for these illegal arrangements.
LGBT rights: The courts will continue to battle over whether or not Title VII'a sex discrimination prohibition covers sexual orientation. I don't think the Supremes will get to the issue this year, so we'll have a split among circuits on this. So far, the 2nd and 7th Circuits say it's covered. The 11th, which covers my home state of Florida, says no.
Marijuana crackdowns: I've been predicting for awhile that the feds will start cracking down on legal marijuana use. It's still illegal on the federal level, no matter what your state says. That handy-dandy card allowing you to buy will be a nice tool for the feds to use to claim probable cause to search your house. They'll probably go after growers and dispensaries first, but if people don't rise up and resist, they'll come after individuals next. I'm guessing the crackdown this year will be on the businesses, not on individuals.
Overall, this won't be a good year for employee rights. But then, you knew that already. Resistance is not futile.
So what can we expect for the rest of 2018? Here are my predictions:
Sexual harassment: Despite all the brouhaha on #MeToo and sexual harassment, no new legislation will pass and we'll see some judicial and jury decisions penalizing sexual harassment victims. There will be backlash, and lots of it.
Agcncy paralysis: With cuts to EEOC, DOJ and NLRB, these agencies will develop backlogs and go into paralysis. Employees can expect little help from the feds this year. The one hopeful thing I see is that EEOC mediations are still going strong. The EEOC mediators, at least down here, are some of the best I've ever seen, government or private. We will still see cases resolved in EEOC mediations unless the mediation program is cut too.
Guns at work: Thanks to high school students down here, we may start to see states revisiting those idiotic guns at work laws that have been all the rage. On the other hand, the orange one is pressing to arm teachers in classrooms. What could possibly go wrong? I think we will actually see some baby steps on common sense gun control for the first time in this country in a long time. It will take awhile, probably years, but there will probably ultimately be a drop in workplace shootings if these laws pass.
Immigration raids: We've already started to see employers being raided to round up illegal immigrants and arrest the bosses for hiring them. We're also seeing traffic stops to round up immigrants. That will continue. Employers and employees beware.
Antitrust: The Department of Justice has announced it will start cracking down on no-poach agreements between employers. That's a ray of sunshine in what will be an awful year for employees. I would caution employers who threaten to sue competitors for hiring former employees, then quietly settle with a no-poach agreement. The government will come after you as well as my colleagues and me for these illegal arrangements.
LGBT rights: The courts will continue to battle over whether or not Title VII'a sex discrimination prohibition covers sexual orientation. I don't think the Supremes will get to the issue this year, so we'll have a split among circuits on this. So far, the 2nd and 7th Circuits say it's covered. The 11th, which covers my home state of Florida, says no.
Marijuana crackdowns: I've been predicting for awhile that the feds will start cracking down on legal marijuana use. It's still illegal on the federal level, no matter what your state says. That handy-dandy card allowing you to buy will be a nice tool for the feds to use to claim probable cause to search your house. They'll probably go after growers and dispensaries first, but if people don't rise up and resist, they'll come after individuals next. I'm guessing the crackdown this year will be on the businesses, not on individuals.
Overall, this won't be a good year for employee rights. But then, you knew that already. Resistance is not futile.
Friday, January 12, 2018
How I Did On My 2017 Predictions
Last year my predictions were all gloom and doom. After all, Republicans have control of the Presidency, the House, the Senate and the Supreme Court. Plus they are appointing federal judges in droves after holding up those appointments for years under President Obama. I expected a quick rain of disaster for employees. I was only partially wrong. It's been more like a series of showers.
Here's how my predictions for 2017 turned out:
Executive orders: I predicted the scrubbing of Obama-era executive orders, including some pro-employee regulations and the protections for employees of federal contractors. I wasn't wrong. President Trump reversed every pro-employee Obama action he could with the stroke of a pen.
Obamacare gone: They tried and tried and failed. Now they're trying slow strangulation. Despite shortening the enrollment period, refusing to advertise and cutting subsidies, 8.7 million Americans enrolled for 2018.
Marijuana jailings: I was called a fear-mongerer after writing about what will happen if the Feds start to enforce marijuana laws. It didn't happen in 2017, but Jeff Sessions just announced his plans to start enforcing the law. So I was a few days late.
LGBT rights curtailed: We started to see this early in 2017. A bill to allow LGBT discrimination on religious grounds was introduced and Trump promised to sign it. Fortunately, it stalled. They did overturn President Obama's order on LGBT discrimination regarding federal contractors. The President attempted to block transgender military members from serving but have so far been blocked in court. We saw anti-gay legislation pass in Mississippi, Puerto Rico, Texas, There will be a true red/blue dichotomy. Florida remained unfriendly to the LGBT community as expected, failing to pass a corporate-supported law to protect LGBT workers against discrimination.
Muslim discrimination: We saw Trump attempting to keep even permanent residents who happen to be Muslim from re-entering the country after traveling for funerals and education. Fortunately, the travel ban was blocked until December, when the Supreme Court allowed the latest version to take effect. We haven't seen much fallout yet. I predicted that blatant acts of discrimination by the Administration would embolden racists who feel they have the right to discriminate against brown people and that this would be a horrible, horrible year to be Muslim. This was a year of increased assaults against Muslims. The number of anti-Muslim groups tripled. It was a rough year.
Sex discrimination: I predicted active attempts to ban abortion rights for women. The Trump Administration sought and failed to block an abortion for a teen immigrant. They passed a law allowing states to refuse to fund doctors who perform abortions. The House passed a bill that would criminalize abortions after 20 weeks. I predicted that attempts to reverse sexual harassment and other protections for women, would not happen much in 2017. Thankfully, the #MeToo movement made any such attempts impossible, for now.
EEOC changes priorities: EEOC started early in 2017 backing down on lawsuits involving transgender rights. However, it was the Justice Department, not EEOC, that took an active stance that Title VII does not protect against LGBT discrimination. The Supreme Court refused to decide the issue. I predicted that EEOC would reverse its position that banning hire of those with criminal records has a disparate impact on race/national origin, but the guidance is still in effect.
No help with overtime: I predicted that President Obama's attempt to expand overtime and update antique standards for overtime will be overturned. It was.
Non-Christians: I predicted that there would be a push to marginalize any protections for anyone who is not Christian. So far, other than with Muslims, that hasn't happened. Yet. Indeed, even the War on Christmas folks were oddly quiet this year.
What we got in 2017 quite a bit of were a boatload of judicial and administration appointments of anti-gay, anti-woman, anti-anyone-but-Christian appointees that will cause long-term negative outcomes. Fortunately, the chaotic White House kept the apocalypse somewhat at bay.
The good news is that many states were proactive in passing pro-employee laws such as ban-the-box, raising the minimum wage, paid sick leave, salary history, predictive scheduling and other pro-employee measures. Florida did nothing to help its workers. As usual.
Next up - my predictions for 2018.
Here's how my predictions for 2017 turned out:
Executive orders: I predicted the scrubbing of Obama-era executive orders, including some pro-employee regulations and the protections for employees of federal contractors. I wasn't wrong. President Trump reversed every pro-employee Obama action he could with the stroke of a pen.
Obamacare gone: They tried and tried and failed. Now they're trying slow strangulation. Despite shortening the enrollment period, refusing to advertise and cutting subsidies, 8.7 million Americans enrolled for 2018.
Marijuana jailings: I was called a fear-mongerer after writing about what will happen if the Feds start to enforce marijuana laws. It didn't happen in 2017, but Jeff Sessions just announced his plans to start enforcing the law. So I was a few days late.
LGBT rights curtailed: We started to see this early in 2017. A bill to allow LGBT discrimination on religious grounds was introduced and Trump promised to sign it. Fortunately, it stalled. They did overturn President Obama's order on LGBT discrimination regarding federal contractors. The President attempted to block transgender military members from serving but have so far been blocked in court. We saw anti-gay legislation pass in Mississippi, Puerto Rico, Texas, There will be a true red/blue dichotomy. Florida remained unfriendly to the LGBT community as expected, failing to pass a corporate-supported law to protect LGBT workers against discrimination.
Muslim discrimination: We saw Trump attempting to keep even permanent residents who happen to be Muslim from re-entering the country after traveling for funerals and education. Fortunately, the travel ban was blocked until December, when the Supreme Court allowed the latest version to take effect. We haven't seen much fallout yet. I predicted that blatant acts of discrimination by the Administration would embolden racists who feel they have the right to discriminate against brown people and that this would be a horrible, horrible year to be Muslim. This was a year of increased assaults against Muslims. The number of anti-Muslim groups tripled. It was a rough year.
Sex discrimination: I predicted active attempts to ban abortion rights for women. The Trump Administration sought and failed to block an abortion for a teen immigrant. They passed a law allowing states to refuse to fund doctors who perform abortions. The House passed a bill that would criminalize abortions after 20 weeks. I predicted that attempts to reverse sexual harassment and other protections for women, would not happen much in 2017. Thankfully, the #MeToo movement made any such attempts impossible, for now.
EEOC changes priorities: EEOC started early in 2017 backing down on lawsuits involving transgender rights. However, it was the Justice Department, not EEOC, that took an active stance that Title VII does not protect against LGBT discrimination. The Supreme Court refused to decide the issue. I predicted that EEOC would reverse its position that banning hire of those with criminal records has a disparate impact on race/national origin, but the guidance is still in effect.
No help with overtime: I predicted that President Obama's attempt to expand overtime and update antique standards for overtime will be overturned. It was.
Non-Christians: I predicted that there would be a push to marginalize any protections for anyone who is not Christian. So far, other than with Muslims, that hasn't happened. Yet. Indeed, even the War on Christmas folks were oddly quiet this year.
What we got in 2017 quite a bit of were a boatload of judicial and administration appointments of anti-gay, anti-woman, anti-anyone-but-Christian appointees that will cause long-term negative outcomes. Fortunately, the chaotic White House kept the apocalypse somewhat at bay.
The good news is that many states were proactive in passing pro-employee laws such as ban-the-box, raising the minimum wage, paid sick leave, salary history, predictive scheduling and other pro-employee measures. Florida did nothing to help its workers. As usual.
Next up - my predictions for 2018.
Monday, January 30, 2017
My 2017 Predictions: It Won't Be Pretty
We've now seen one week of the new Administration, and so we know Mr. Trump was not kidding about his extreme promises. This will not be a good year for employees. The only thing I'm sure of is that we really have no idea what will happen this year. But I'll do my best to predict the unpredictable:
Executive orders: Okay, this wasn't a hard one since it's already started. We'll see lots of executive orders curtailing employee rights, LGBT rights and women's rights. I've already made some predictions about what regulations Trump will scrub, and the reversal of protections for employees of federal contractors.
Obamacare gone: I've written about what will happen with the end of Obamacare, and the resulting end of nursing breaks if Obamacare is repealed. This is already starting to happen.
Marijuana jailings: I've also written about what will happen if the Feds start to enforce marijuana laws. I stand by my predictions, despite being called a fear-mongerer.
LGBT rights curtailed: We've started to see this already. A bill to allow LGBT discrimination on religious grounds has been introduced and Trump promises to sign it. They are likely planning to overturn President Obama's order on LGBT discrimination regarding federal contractors. There will be attempts to overturn gay marriage altogether, and to at least treat it as a second class kind of marriage where clerks can refuse to perform ceremonies. We may see an attempt at a federal bathroom bill similar to the obnoxious North Carolina bill. We'll see states moving to curtail LGBT rights, but we'll also see some states moving to protect them. There will be a true red/blue dichotomy. Florida will be a state that remains unfriendly to the LGBT community, and our legislature will feel emboldened to trample on rights.
Muslim discrimination: Already, Trump has attempted to keep even permanent residents who happen to be Muslim from re-entering the country after traveling for funerals and education. This will affect employees who have to travel for work. Many Muslims will lose their jobs when they can no longer safely leave the country. The blatant acts of discrimination by the Administration will embolden racists who feel they have the right to discriminate against brown people. This will be a horrible, horrible year to be Muslim. Some states will try to step up protections for Muslim people. The blatant discrimination will also help recruiting efforts for terrorist organizations.
Sex discrimination: There will be active attempts to ban abortion rights for women. This will turn women into second-class citizens. It's only a matter of time, once abortion becomes illegal again, that sexist politicians will turn their eyes on other aspects of women's reproductive and health issues. Once women can't control their own bodies without political interference, they will be hampered in their careers. There is a whole scary element of the Trump regime that believes women shouldn't work, so don't expect any pro-female laws. We may see some attempts to reverse sexual harassment and other protections for women, but I don't think this will happen immediately. They will be too busy harassing gays and Muslims this year.
EEOC changes priorities: EEOC is already backing down on lawsuits involving transgender rights. They will stop pushing cases where they have asserted that Title VII protects against LGBT discrimination, so it will be up to employee-side employment attorneys to push the issue. Also gone will be arguments that banning hire of those with criminal records has a disparate impact on race/national origin.
No help with overtime: President Obama's attempt to expand overtime and update antique standards for overtime will be overturned.
Non-Christians: Religious discrimination laws protect all religions and sincerely held beliefs, but there will be a push to marginalize any protections for anyone who is not Christian. Those who believe the U.S. is a Christian nation will push to force us all into their narrow religious beliefs. It will become open season on non-Christians.
This is truly the most depressing set of predictions I've ever made. And I could go on. I think very few other than rich white males will have a good year, employment law-wise. I'm hoping the resistance will stay strong, but I still fear that, with the House, Senate, Presidency and soon the Supreme Court under the thumb of right-wing conservatives, we are in for a very bad year. I really most sincerely hope I am wrong.
Executive orders: Okay, this wasn't a hard one since it's already started. We'll see lots of executive orders curtailing employee rights, LGBT rights and women's rights. I've already made some predictions about what regulations Trump will scrub, and the reversal of protections for employees of federal contractors.
Obamacare gone: I've written about what will happen with the end of Obamacare, and the resulting end of nursing breaks if Obamacare is repealed. This is already starting to happen.
Marijuana jailings: I've also written about what will happen if the Feds start to enforce marijuana laws. I stand by my predictions, despite being called a fear-mongerer.
LGBT rights curtailed: We've started to see this already. A bill to allow LGBT discrimination on religious grounds has been introduced and Trump promises to sign it. They are likely planning to overturn President Obama's order on LGBT discrimination regarding federal contractors. There will be attempts to overturn gay marriage altogether, and to at least treat it as a second class kind of marriage where clerks can refuse to perform ceremonies. We may see an attempt at a federal bathroom bill similar to the obnoxious North Carolina bill. We'll see states moving to curtail LGBT rights, but we'll also see some states moving to protect them. There will be a true red/blue dichotomy. Florida will be a state that remains unfriendly to the LGBT community, and our legislature will feel emboldened to trample on rights.
Muslim discrimination: Already, Trump has attempted to keep even permanent residents who happen to be Muslim from re-entering the country after traveling for funerals and education. This will affect employees who have to travel for work. Many Muslims will lose their jobs when they can no longer safely leave the country. The blatant acts of discrimination by the Administration will embolden racists who feel they have the right to discriminate against brown people. This will be a horrible, horrible year to be Muslim. Some states will try to step up protections for Muslim people. The blatant discrimination will also help recruiting efforts for terrorist organizations.
Sex discrimination: There will be active attempts to ban abortion rights for women. This will turn women into second-class citizens. It's only a matter of time, once abortion becomes illegal again, that sexist politicians will turn their eyes on other aspects of women's reproductive and health issues. Once women can't control their own bodies without political interference, they will be hampered in their careers. There is a whole scary element of the Trump regime that believes women shouldn't work, so don't expect any pro-female laws. We may see some attempts to reverse sexual harassment and other protections for women, but I don't think this will happen immediately. They will be too busy harassing gays and Muslims this year.
EEOC changes priorities: EEOC is already backing down on lawsuits involving transgender rights. They will stop pushing cases where they have asserted that Title VII protects against LGBT discrimination, so it will be up to employee-side employment attorneys to push the issue. Also gone will be arguments that banning hire of those with criminal records has a disparate impact on race/national origin.
No help with overtime: President Obama's attempt to expand overtime and update antique standards for overtime will be overturned.
Non-Christians: Religious discrimination laws protect all religions and sincerely held beliefs, but there will be a push to marginalize any protections for anyone who is not Christian. Those who believe the U.S. is a Christian nation will push to force us all into their narrow religious beliefs. It will become open season on non-Christians.
This is truly the most depressing set of predictions I've ever made. And I could go on. I think very few other than rich white males will have a good year, employment law-wise. I'm hoping the resistance will stay strong, but I still fear that, with the House, Senate, Presidency and soon the Supreme Court under the thumb of right-wing conservatives, we are in for a very bad year. I really most sincerely hope I am wrong.
Friday, January 20, 2017
Cassandra Redux? How I Did On My 2016 #Emplaw Predictions
Every year I have done predictions for what I expected to happen in employment law and I'm usually right. After 30 years of law practice, it turns out I know stuff, despite what my teenagers say. Here's what I predicted for 2016 and how it turned out:
Political firings: I predicted a rash of political firings for discussing politics at work, and of course this happened. But it was less about the actual politics and more about the undercurrents. This year, there were more blatant comments about women, gays, the disabled and other protected groups than I've seen in my 30 years of law practice, and much of that was because of the tone of the political campaigns.
LGBT discrimination: I predicted that some states and localities would pass laws against LGBT discrimination, but my home state of Florida would fail again. That's exactly what happened. What I didn't predict was the rash of anti-gay legislation that would arise. From bathroom bills to religious exemptions, some states tried everything they could to put the screws to the gay community this year.
Obama to the rescue: I predicted the President would continue to be active with his pen and squeeze in some more pro-employee executive orders before he left office and he did. The new President says he'll reverse them all on his first day.
Clear choice: I predicted that the candidates for President would make their positions on working people very clear. That was certainly true. I told you to vote very carefully. I said you could easily lose many workplace rights if you vote wrong. Well, you're about to see how bad it can get.
EEOC step up: I predicted that EEOC would step up its activities in one final burst before the new President got a chance to gut it, and they did. There were a whole bunch of new guidances issued on mental disabilities, harassment, wellness notices, national origin, federal sector discrimination, retaliation, and affirmative action for people with disabilities.
NLRB step up: I predicted that NLRB would also try to help working people as much as it can while it still could, and that employers would complain bitterly. Yep.
Do-nothing Congress: I predicted Congress would do zip to help working people. They did nothing.
Criminalization: I said we'd see more employees arrested and prosecuted for things like trade secrets violations, whereas employers who steal wages would walk. That happened.
Joint employer: I predicted that whether franchises and placement agencies are joint employers with parent companies and the companies employees are placed with would be a hot issue this year and that the Supremes wouldn't decide the issue. That indeed continued to be a hot topic, with DOL and NLRB taking a big lead on the issue.
Guns at work redux: I predicted that employees and the NRA would push to allow employees with concealed weapons permits to carry into the workplace. We did see more of those guns-at-work parking lot laws, and Florida legislators are trying to repeal a law prohibiting guns in airports (doh!). We didn't see the push to take the guns from the parking lots to the workplace this year, but that push is coming.
So, I did pretty well, even though 2016 was a year nobody could have predicted. Next up are my predictions for 2017. Today, I'll be busy helping protect working people while they still have rights and ignoring the festivities in D.C.
Political firings: I predicted a rash of political firings for discussing politics at work, and of course this happened. But it was less about the actual politics and more about the undercurrents. This year, there were more blatant comments about women, gays, the disabled and other protected groups than I've seen in my 30 years of law practice, and much of that was because of the tone of the political campaigns.
LGBT discrimination: I predicted that some states and localities would pass laws against LGBT discrimination, but my home state of Florida would fail again. That's exactly what happened. What I didn't predict was the rash of anti-gay legislation that would arise. From bathroom bills to religious exemptions, some states tried everything they could to put the screws to the gay community this year.
Obama to the rescue: I predicted the President would continue to be active with his pen and squeeze in some more pro-employee executive orders before he left office and he did. The new President says he'll reverse them all on his first day.
Clear choice: I predicted that the candidates for President would make their positions on working people very clear. That was certainly true. I told you to vote very carefully. I said you could easily lose many workplace rights if you vote wrong. Well, you're about to see how bad it can get.
EEOC step up: I predicted that EEOC would step up its activities in one final burst before the new President got a chance to gut it, and they did. There were a whole bunch of new guidances issued on mental disabilities, harassment, wellness notices, national origin, federal sector discrimination, retaliation, and affirmative action for people with disabilities.
NLRB step up: I predicted that NLRB would also try to help working people as much as it can while it still could, and that employers would complain bitterly. Yep.
Do-nothing Congress: I predicted Congress would do zip to help working people. They did nothing.
Criminalization: I said we'd see more employees arrested and prosecuted for things like trade secrets violations, whereas employers who steal wages would walk. That happened.
Joint employer: I predicted that whether franchises and placement agencies are joint employers with parent companies and the companies employees are placed with would be a hot issue this year and that the Supremes wouldn't decide the issue. That indeed continued to be a hot topic, with DOL and NLRB taking a big lead on the issue.
Guns at work redux: I predicted that employees and the NRA would push to allow employees with concealed weapons permits to carry into the workplace. We did see more of those guns-at-work parking lot laws, and Florida legislators are trying to repeal a law prohibiting guns in airports (doh!). We didn't see the push to take the guns from the parking lots to the workplace this year, but that push is coming.
So, I did pretty well, even though 2016 was a year nobody could have predicted. Next up are my predictions for 2017. Today, I'll be busy helping protect working people while they still have rights and ignoring the festivities in D.C.
Friday, February 5, 2016
My Predictions for 2016
OK, so I waited a bit, and a month of 2016 has already passed. Still, I promised that I'd give you my predictions for the year, so here they are:
Political firings: Since it's an election year, we'll hear about people being fired for discussing politics at work, for supporting the wrong candidate, and for being involved in certain campaigns. We'll also hear some threats from CEOs and other corporate types that if their employees vote for certain candidates (read: not Republicans) they'll be fired. Is that illegal? Depends on the state. In some cases, it depends on the city or county. Should be an interesting and litigious campaign season.
LGBT discrimination: Some states and localities will pass laws against LGBT discrimination, but my home state of Florida will fail again.
Obama to the rescue: The President will continue to be active with his pen. He'll try to squeeze in some more pro-employee executive orders before he goes to the big speaking circuit.
Clear choice: The candidates for President will make their positions on working people very clear. You will need to vote very carefully. You could easily lose many workplace rights if you vote wrong.
EEOC steps up: EEOC will step up its activities in one final burst before the new President gets a chance to gut it (or not gut it - see above about voting well).
NLRB steps up: NLRB will also try to help working people as much as it can while it still can. Employers will complain bitterly.
Do-nothing Congress: Congress will do zip to help working people. They're too busy campaigning and fighting among themselves. They will try some anti-employee crap. The President will veto it.
Criminalization: We'll see more employees arrested and prosecuted for things like trade secrets violations, whereas employers who steal wages will walk.
Joint employer: Whether franchises and placement agencies are joint employers with parent companies and the companies employees are placed with will be a hot issue this year. Federal agencies say yes. Some courts will say no. The Supremes won't decide this year, so more litigation will ensue.
Guns at work redux: We have many states with take-your-guns-to-work laws that protect employees from being fired as long as they have guns in lock boxes in their vehicles. Now employees and the NRA are going to push to allow employees with concealed weapons permits to carry into the workplace. Next, if they succeed, they'll push open carry in the workplace. Will employers wake up and rise up against the NRA? Not likely this year because they're supporting the same candidates. Be careful what you wish for, employers.
There will be lots more going on than all this because the elections usually cause some havoc. But here you have my predictions for the year. Vote well, so I can have some good predictions in 2017.
Political firings: Since it's an election year, we'll hear about people being fired for discussing politics at work, for supporting the wrong candidate, and for being involved in certain campaigns. We'll also hear some threats from CEOs and other corporate types that if their employees vote for certain candidates (read: not Republicans) they'll be fired. Is that illegal? Depends on the state. In some cases, it depends on the city or county. Should be an interesting and litigious campaign season.
LGBT discrimination: Some states and localities will pass laws against LGBT discrimination, but my home state of Florida will fail again.
Obama to the rescue: The President will continue to be active with his pen. He'll try to squeeze in some more pro-employee executive orders before he goes to the big speaking circuit.
Clear choice: The candidates for President will make their positions on working people very clear. You will need to vote very carefully. You could easily lose many workplace rights if you vote wrong.
EEOC steps up: EEOC will step up its activities in one final burst before the new President gets a chance to gut it (or not gut it - see above about voting well).
NLRB steps up: NLRB will also try to help working people as much as it can while it still can. Employers will complain bitterly.
Do-nothing Congress: Congress will do zip to help working people. They're too busy campaigning and fighting among themselves. They will try some anti-employee crap. The President will veto it.
Criminalization: We'll see more employees arrested and prosecuted for things like trade secrets violations, whereas employers who steal wages will walk.
Joint employer: Whether franchises and placement agencies are joint employers with parent companies and the companies employees are placed with will be a hot issue this year. Federal agencies say yes. Some courts will say no. The Supremes won't decide this year, so more litigation will ensue.
Guns at work redux: We have many states with take-your-guns-to-work laws that protect employees from being fired as long as they have guns in lock boxes in their vehicles. Now employees and the NRA are going to push to allow employees with concealed weapons permits to carry into the workplace. Next, if they succeed, they'll push open carry in the workplace. Will employers wake up and rise up against the NRA? Not likely this year because they're supporting the same candidates. Be careful what you wish for, employers.
There will be lots more going on than all this because the elections usually cause some havoc. But here you have my predictions for the year. Vote well, so I can have some good predictions in 2017.
Monday, December 21, 2015
Call Me Karnak: How I Did On My Predictions For 2015
It's time to see how I did on my predictions for 2015. I have to say, I did pretty well. See for yourself. Here's what I predicted, and what really happened:
1. Intern sexual harassment: I predicted that Miami-Dade County would follow Broward County's lead and pass an ordinance banning sexual harassment of interns. Boy, was I wrong. Broward's proposed ordinance stalled indefinitely. Miami-Dade did nothing to protect interns. I predicted a bill would be introduced in the Florida legislature, but that Republicans in charge of both houses and the governorship would block it. I was right. On the national front, I correctly predicted we'd see a move afoot in other states to pass a law similar to the ones passed in California, New York, Oregon and Illinois. This year Connecticut and New Jersey passed legal protection for interns and a bill was introduced in Michigan.
2. Micro-unions: I predicted that micro-unions would start popping up more in 2015, but it seems that there wasn't exactly a rush to unionize small groups of employees of bigger employers. Still, there were a few micro-unions that were voted in in 2015. A small group of Volkswagen skilled trade employees were approved to vote on unionizing. Pharmacists at a Target in Brooklyn voted in a micro-union, giving unions a foothold for the first time in the mega-retailer. It wasn't the woe-is-me rush that anti-union folks predicted, but it's a start.
3. Minimum wage: I predicted that 2015 wouldn't be as big a year for increases because it isn't an election year, but that we'd see some more states and local governments raise the minimum wage to over $10/hour. Rhode Island passed an increase to $9.60 an hour, so very close but no cigar. Cities did better by their workers in 2015. Los Angeles and Sacramento raised their minimum wage to $10.50. Mountain View, Santa Clara and Palo Alto, CA and Santa Fe, NM went up to $11.00. Mountain View's rate will gradually reach $15.00 in 2018. Portland, ME went to $10.10.
4. Obama as employee advocate: I predicted that President Obama would continue to use executive orders to push for employee rights, and he certainly did that. I predicted that his push to pass a paid sick leave law would fail and that members of Congress with elephantitis would do everything they could to make sure workers remain oppressed and that certainly happened. For more about what President Obama did with his pen, check out my blog post on it here.
5. Gay marriage: I predicted that we'd continue to see marriage equality expand. Yep. Called that one.
6. Marijuana: I predicted that legalized marijuana and medical marijuana would continue to expand, but not one new state legalized it in 2015. However, Delaware finally restarted its medical marijuana program this year and opened its first dispensary. Illinois also opened up its first dispensary. Some states added certain medical conditions to their approved list of conditions for which marijuana could be prescribed. So there was movement, but not the surge I expected. Several states are trying again next year. I predicted that employees who use marijuana for medical purposes would continue to get fired due to lack of laws protecting them even when they have a prescription, and that definitely happened.
7. Republican roll-back: I predicted that Republicans would try to roll back worker rights. I predicted they'd attack the Fair Labor Standards Act. They did, trying to pass legislation to allow comp time instead of overtime pay. I said they'd attack the NLRB. They did, as they tried to reverse NLRB's ruling on franchises as joint employers and on simplifying union elections. I said they'd try to repeal Obamacare. They did. I said President Obama would veto these efforts. He did.
8. Noncompetes come into question: I predicted we'd start to see some antitrust investigations of the more extreme and abusive noncompete agreements. Michigan legislators took a swing at noncompetes, as did Maryland and Rhode Island legislators, but didn't manage to ban them yet. I said there will be another effort in Massachusetts to ban them, but it will likely fail. So far, there's no ban there, but legislation is still pending. I predicted no states would ban them yet, but that eyes would begin to open on how abusive they can be. I was actually wrong, since Hawaii banned noncompete agreements for many tech workers this year. Senator Franken has introduced legislation to ban noncompetes against low wage workers. A $415 million settlement in a no-poach agreement case should also shake some employers up to the implications of illegally barring employees from working for competitors.
9. Gridlock: I predicted that zero would actually happen on the national level. ENDA, Civil Rights Tax Fairness Act, FAMILY Act, and Arbitration Fairness Act. Nothing happened.
10. Ban the box: I predicted more states and local governments would ban employers from asking about arrests and convictions on applications, and would limit the use of convictions found in background checks to those that are actually relevant to the job sought. Georgia, Hawaii, New York, Ohio, Oregon, Vermont and Virginia brought the total to 19 states and over 100 municipalities that have passed some form of ban-the-box legislation, policy or executive order. President Obama has also banned the box for federal employers.
1. Intern sexual harassment: I predicted that Miami-Dade County would follow Broward County's lead and pass an ordinance banning sexual harassment of interns. Boy, was I wrong. Broward's proposed ordinance stalled indefinitely. Miami-Dade did nothing to protect interns. I predicted a bill would be introduced in the Florida legislature, but that Republicans in charge of both houses and the governorship would block it. I was right. On the national front, I correctly predicted we'd see a move afoot in other states to pass a law similar to the ones passed in California, New York, Oregon and Illinois. This year Connecticut and New Jersey passed legal protection for interns and a bill was introduced in Michigan.
2. Micro-unions: I predicted that micro-unions would start popping up more in 2015, but it seems that there wasn't exactly a rush to unionize small groups of employees of bigger employers. Still, there were a few micro-unions that were voted in in 2015. A small group of Volkswagen skilled trade employees were approved to vote on unionizing. Pharmacists at a Target in Brooklyn voted in a micro-union, giving unions a foothold for the first time in the mega-retailer. It wasn't the woe-is-me rush that anti-union folks predicted, but it's a start.
3. Minimum wage: I predicted that 2015 wouldn't be as big a year for increases because it isn't an election year, but that we'd see some more states and local governments raise the minimum wage to over $10/hour. Rhode Island passed an increase to $9.60 an hour, so very close but no cigar. Cities did better by their workers in 2015. Los Angeles and Sacramento raised their minimum wage to $10.50. Mountain View, Santa Clara and Palo Alto, CA and Santa Fe, NM went up to $11.00. Mountain View's rate will gradually reach $15.00 in 2018. Portland, ME went to $10.10.
4. Obama as employee advocate: I predicted that President Obama would continue to use executive orders to push for employee rights, and he certainly did that. I predicted that his push to pass a paid sick leave law would fail and that members of Congress with elephantitis would do everything they could to make sure workers remain oppressed and that certainly happened. For more about what President Obama did with his pen, check out my blog post on it here.
5. Gay marriage: I predicted that we'd continue to see marriage equality expand. Yep. Called that one.
6. Marijuana: I predicted that legalized marijuana and medical marijuana would continue to expand, but not one new state legalized it in 2015. However, Delaware finally restarted its medical marijuana program this year and opened its first dispensary. Illinois also opened up its first dispensary. Some states added certain medical conditions to their approved list of conditions for which marijuana could be prescribed. So there was movement, but not the surge I expected. Several states are trying again next year. I predicted that employees who use marijuana for medical purposes would continue to get fired due to lack of laws protecting them even when they have a prescription, and that definitely happened.
7. Republican roll-back: I predicted that Republicans would try to roll back worker rights. I predicted they'd attack the Fair Labor Standards Act. They did, trying to pass legislation to allow comp time instead of overtime pay. I said they'd attack the NLRB. They did, as they tried to reverse NLRB's ruling on franchises as joint employers and on simplifying union elections. I said they'd try to repeal Obamacare. They did. I said President Obama would veto these efforts. He did.
8. Noncompetes come into question: I predicted we'd start to see some antitrust investigations of the more extreme and abusive noncompete agreements. Michigan legislators took a swing at noncompetes, as did Maryland and Rhode Island legislators, but didn't manage to ban them yet. I said there will be another effort in Massachusetts to ban them, but it will likely fail. So far, there's no ban there, but legislation is still pending. I predicted no states would ban them yet, but that eyes would begin to open on how abusive they can be. I was actually wrong, since Hawaii banned noncompete agreements for many tech workers this year. Senator Franken has introduced legislation to ban noncompetes against low wage workers. A $415 million settlement in a no-poach agreement case should also shake some employers up to the implications of illegally barring employees from working for competitors.
9. Gridlock: I predicted that zero would actually happen on the national level. ENDA, Civil Rights Tax Fairness Act, FAMILY Act, and Arbitration Fairness Act. Nothing happened.
10. Ban the box: I predicted more states and local governments would ban employers from asking about arrests and convictions on applications, and would limit the use of convictions found in background checks to those that are actually relevant to the job sought. Georgia, Hawaii, New York, Ohio, Oregon, Vermont and Virginia brought the total to 19 states and over 100 municipalities that have passed some form of ban-the-box legislation, policy or executive order. President Obama has also banned the box for federal employers.
Overall, I think I did pretty well in predicting 2015. Next, I'll share my predictions for 2016.
Monday, January 19, 2015
What I See In My Crystal Ball For Employment Law In 2015
So far I've been pretty prescient in my annual predictions, so better pay attention here. My predictions for what will happen on the employment law scene in 2015 are:
1. Intern sexual harassment: With Broward County moving to develop an ordinance to ban sexual harassment of interns, can Miami-Dade County be far behind? While I predict a bill will be introduced in the Florida legislature, Republicans in charge of both houses and the governorship will block it. Who can be in favor of sexual harassment of our teenagers? I'm guessing pretty much anyone who has an elephant as their symbol. On the national front, we'll see a move afoot in other states to pass a law similar to the ones passed in California, New York, Oregon and Illinois.
2. Micro-unions: As the NLRB flexes its muscles to ease union organizing, and big unions like AFL-CIO pushing organization of smaller units, the union movement will slowly start coming back swinging. Employees who realize they have been getting the short end of the stick will start organization efforts of smaller groups. Micro-unions will start popping up more this year.
3. Minimum wage: 2014 was a huge year for minimum wage increases, and employees will continue fighting for raises in 2015. It won't be as big a year for increases because it isn't an election year, but we'll see some more states and local governments raise the minimum wage to over $10/hour.
4. Obama as employee advocate: Now that he has nothing to lose, President Obama will continue to use executive orders to push for employee rights. He has just penned expansions to federal employee and federal contractor employees' minimum wage and medical leave, and to help immigrant-employees. He'll do everything he can with his pen to expand worker rights. His push to pass a paid sick leave law will fail. Members of Congress with elephantitis will do everything they can to make sure workers remain oppressed.
5. Gay marriage: Having reached the tipping point with a solid majority of states legalizing gay marriage, we'll continue to see marriage equality expand. This may not be the year for complete legalization, but it's all over but the shouting for pro-discrimination folks.
6. Marijuana: Legalized marijuana and medical marijuana will continue to expand. Employees who use marijuana for medical purposes will continue to get fired as employers fail to wake up to the fact that marijuana actually helps people and isn't as bad as, say, codeine or benadryl for workers on duty.
7. Republican roll-back: The President will have to exercise his veto pen lots this year, as Republicans try to roll back worker rights. Look for very excited Rs to try to roll back the Fair Labor Standards Act, National Labor Relations Act, ObamaCare, safety laws, discrimination laws, and pretty much every pro-employee law they can think of. They long for the days of the Triangle Shirtwaist Factory. The President will promptly veto all such attempts, which will egg them on to even more extreme positions.
8. Noncompetes come into question: With Jimmy Johns and other minimum wage noncompete agreements coming to light, legislators are starting to wake up to the abuses that these agreements impose on employees. We'll start to see some antitrust investigations of the more extreme noncompete agreements. There will be another effort in Massachusetts to ban them, but it will likely fail as both parties cave to employer interests. This won't be the year states start banning or limiting them, but eyes will start to open.
9. Gridlock: Not difficult at all to predict will be that zero will actually happen on the national level. ENDA, Civil Rights Tax Fairness Act, FAMILY Act, and Arbitration Fairness Act are just some of the laws that will die a horrible death this year. It will be at least two years before anything at all can get done in the way of national legislation.
10. Ban the box: More states and local governments will ban employers from asking about arrests and convictions on applications, and will limit the use of convictions found in background checks to those that are actually relevant to the job sought.
That's all for this year's predictions. How do you think I will do? What are your predictions? Tell me about your thoughts in the comments section.
1. Intern sexual harassment: With Broward County moving to develop an ordinance to ban sexual harassment of interns, can Miami-Dade County be far behind? While I predict a bill will be introduced in the Florida legislature, Republicans in charge of both houses and the governorship will block it. Who can be in favor of sexual harassment of our teenagers? I'm guessing pretty much anyone who has an elephant as their symbol. On the national front, we'll see a move afoot in other states to pass a law similar to the ones passed in California, New York, Oregon and Illinois.
2. Micro-unions: As the NLRB flexes its muscles to ease union organizing, and big unions like AFL-CIO pushing organization of smaller units, the union movement will slowly start coming back swinging. Employees who realize they have been getting the short end of the stick will start organization efforts of smaller groups. Micro-unions will start popping up more this year.
3. Minimum wage: 2014 was a huge year for minimum wage increases, and employees will continue fighting for raises in 2015. It won't be as big a year for increases because it isn't an election year, but we'll see some more states and local governments raise the minimum wage to over $10/hour.
4. Obama as employee advocate: Now that he has nothing to lose, President Obama will continue to use executive orders to push for employee rights. He has just penned expansions to federal employee and federal contractor employees' minimum wage and medical leave, and to help immigrant-employees. He'll do everything he can with his pen to expand worker rights. His push to pass a paid sick leave law will fail. Members of Congress with elephantitis will do everything they can to make sure workers remain oppressed.
5. Gay marriage: Having reached the tipping point with a solid majority of states legalizing gay marriage, we'll continue to see marriage equality expand. This may not be the year for complete legalization, but it's all over but the shouting for pro-discrimination folks.
6. Marijuana: Legalized marijuana and medical marijuana will continue to expand. Employees who use marijuana for medical purposes will continue to get fired as employers fail to wake up to the fact that marijuana actually helps people and isn't as bad as, say, codeine or benadryl for workers on duty.
7. Republican roll-back: The President will have to exercise his veto pen lots this year, as Republicans try to roll back worker rights. Look for very excited Rs to try to roll back the Fair Labor Standards Act, National Labor Relations Act, ObamaCare, safety laws, discrimination laws, and pretty much every pro-employee law they can think of. They long for the days of the Triangle Shirtwaist Factory. The President will promptly veto all such attempts, which will egg them on to even more extreme positions.
8. Noncompetes come into question: With Jimmy Johns and other minimum wage noncompete agreements coming to light, legislators are starting to wake up to the abuses that these agreements impose on employees. We'll start to see some antitrust investigations of the more extreme noncompete agreements. There will be another effort in Massachusetts to ban them, but it will likely fail as both parties cave to employer interests. This won't be the year states start banning or limiting them, but eyes will start to open.
9. Gridlock: Not difficult at all to predict will be that zero will actually happen on the national level. ENDA, Civil Rights Tax Fairness Act, FAMILY Act, and Arbitration Fairness Act are just some of the laws that will die a horrible death this year. It will be at least two years before anything at all can get done in the way of national legislation.
10. Ban the box: More states and local governments will ban employers from asking about arrests and convictions on applications, and will limit the use of convictions found in background checks to those that are actually relevant to the job sought.
That's all for this year's predictions. How do you think I will do? What are your predictions? Tell me about your thoughts in the comments section.
Monday, January 12, 2015
How I Did On My Employment Law Predictions For 2014
Last year I made predictions for what would happen in 2014. How did I do? Call me Cassandra again, because I did pretty well:
- Minimum Wage: I predicted that raising the minimum wage would be a hot political issue in 2014. Eleven states enacted minimum wage increases and so did several municipalities. At the beginning of 2015, 23 states saw minimum wage increases. Five states had ballot measures approved by voters. Plus now federal contractors have to pay a minimum wage of $10.10/hour.
- Legalize It: I predicted that legalized marijuana would spread to more states, and two more states, Oregon and Alaska legalized it. 23 states and DC have legalized medical marijuana, with Maryland, Minnesota and New York legalizing it in 2014. Florida's ballot measure failed (it got a majority but not the super-majority it needed).
- Health Care: ObamaCare kicked in and I predicted it would cause come confusion and some stupid employers to start dumping insurance and cutting people to part-time to avoid paying insurance, but that most of the stupid employer activity would be at the end of the year and into 2015. While some employers did cut hours and dump insurance, the number of employees involuntarily cut to part time actually dropped this year.
- Internships Cut: I predicted we'd see unpaid internships cut and see some attempts to put interns under the protection of discrimination and sexual harassment laws, but that Congress would not pass such a law. It's true - unpaid internships are going the way of the dodo bird. New York, Illinois and California passed laws against sexual harassment of interns.
- Failed Again: Attempts to pass anti-bullying laws and the Civil Rights Tax Fairness Act will fail just like they do every year. States tried and failed, and New Hampshire passed one that was vetoed, but only Tennessee has managed to pass an anti-bullying law. California passed a law requiring that employers train supervisors regarding abusive conduct.
- NLRB and EEOC Cut Off By Courts: I predicted NLRB and EEOC would continue to try to expand the protections employees have and that courts would continue to stop them, but that they would inch forward with some new progress for employees. NLRB did make progress, saying employees can use employer email to organize unions. EEOC fought for its life against big sanctions, but managed to press for LGBT rights.
- Lip Service: I predicted lip service to pro-employee laws for the midterms but that little or nothing would pass due to gridlock. Failures included theFAMILY Act, Arbitration Fairness Act, and ENDA.
- Background Checks: I predicted that more states would ban or limit use of credit information in hiring but that federal efforts to do so would fail. I also predicted that more states will pass ban-the-box laws barring many inquiries about arrest and conviction records in job applications but that there was zero chance such a law will pass on the federal level this election year. No federal laws passed but Delaware passed a law prohibiting use of credit information in hiring decisions, making it the 11th state to limit or ban the use of credit information. Ban-the-box was a hot issue in 2014, with New Jersey, Illinois and DC adding themselves to the 13 states along with 67 cities and counties having passed these laws nationwide.
- Pregnancy Discrimination: I predicted the Florida Supreme Court would say that the Florida Civil Rights Act covered pregnancy discrimination. It did.
- LGBT Protections: I predicted that states and local governments would continue to pass discrimination laws banning LGBT discrimination. In 2014, Virginia and Maryland passed anti-discrimination laws along with many municipalities and counties.
- Religious Discrimination: I predicted that right-wing religious groups would push the argument that religious discrimination laws allow them to speak out against gay rights in the workplace. They did, with some states and local government passing or introducing "religious freedom" laws that say it's okay to oppress LGBT citizens in the name of religion.
Next week I'll put in my predictions for 2015.
Friday, January 10, 2014
Donna's Employment Law Predictions for 2014
Last week I revealed how I did on my predictions for 2013 (pretty darned good, if I do say so myself). Today, I look into my crystal ball for 2014. Here's what I see on the horizon:
- Minimum Wage: Raising the minimum wage will be a hot political issue in 2014. We saw some movements in 2013 to make significant increases, and that will continue. Unless something drastic happens in the midterm elections, it's doubtful we'll see anything significant on the national level, but look for more states to increase the minimum wage to the $ 9 - 10 range. Some may go even higher, like Seattle's move toward $15. Raising the minimum wage is great for the economy. Unlike trickle-down economics, it gets money circulating quickly. Henry Ford had the right idea: pay your employees enough so they can buy your products.
- Legalize It: Legalized marijuana will spread to more states, creating some confusion for employers. Can they fire employees who test positive, like Colorado? Or will their state prohibit firings for legal marijuana use like Connecticut, Arizona, Rhode Island, Maine, Colorado and New York? Colorado has a law, as do other states, prohibiting firing/discrimination for legal off-duty activities, so watch for some litigation over this issue there. Look for marijuana growers and sellers to push for laws like tobacco users have in several states protecting them from discrimination at work. In the meantime, medical marijuana users will seek protection under the ADA and other disability discrimination laws.
- Health Care: ObamaCare kicked in and it will change the way we look at health insurance. Sure, it isn't ideal. But when a million or so people who've never had health insurance or who haven't had it in years suddenly can get medical treatment, they'll start to expect to be treated like human beings instead of human waste. From here, we'll be very close to an upheaval in the way we deal with health insurance. This year, we'll see some confusion as the regulations kick in, some stupid employers dumping insurance and cutting people to part-time to avoid paying insurance, but the employer mandates have been delayed until 2015, so most of the stupid employer activity will be at the end of the year and into next year. I say that employers who do this are stupid because they'll ultimately lose good employees. With more people covered, there will be more health care jobs available.
- Internships Cut: With employers under attack for unpaid internship programs that don't actually educate the interns and replace regular employees, some programs will simply disappear. That's not all bad, since the interns-as-slaves programs need to die. We'll see better internship programs cropping up, ones that are truly educational, or paid internships. But most of the new programs will start up after this year. This will be a year of lost programs. We'll also see some attempts to put interns under the protection of discrimination and sexual harassment laws. Some may succeed on the state or local levels, but there's no way that happens on a national level with Congress as it is currently configured.
- Failed Again: Attempts to pass anti-bullying laws and the Civil Rights Tax Fairness Act will fail just like they do every year.
- NLRB and EEOC Cut Off By Courts: NLRB and EEOC will continue to try to expand the protections employees have. Courts will continue to stop them. Still, they'll inch forward with some new progress for employees. Baby steps.
- Lip Service: While the midterm elections kick in, we'll hear lots of big proposals to help employees. Little or nothing will pass due to gridlock. Failures will include the FAMILY Act, Arbitration Fairness Act, and ENDA. However, the fact that each of these bills will be blocked will become fodder to take down some of the more anti-employee members of Congress. Maybe 2015 will see some progress.
- Background Checks: EEOC's efforts to demonstrate that criminal background checks have a disparate impact on blacks have been pretty well crushed so far. However, there will continue to be efforts to ban credit checks. More states will ban or limit use of credit information in hiring. The federal efforts to do so will fail. More states will pass ban-the-box laws barring many inquiries about arrest and conviction records in job applications. There is zero chance such a law will pass on the federal level this election year.
- Pregnancy Discrimination: The issue of whether pregnancy is covered under the Florida Civil Rights Act will be resolved one way or the other by the end of the year. I think the Florida Supreme Court will say it is already covered. If not, then the legislature will pass a fix. The difference will be for all those women caught in between. If the Court doesn't rule for employees, lots of new moms who thought they were covered and sued under state law will be out of luck. Rule wisely, Supremes.
- LGBT Protections: States and local governments will continue to pass discrimination laws banning LGBT discrimination. The feds will fail again, but EEOC will continue to push for application of existing law to LGBT employees.
- Religious Discrimination: Religious employees will push the limits on their ability to proselytize and pray at work. There will be a disconnect between the right to practice religion vs. the right not to be harassed for not sharing a religion and also LGBT rights. Look for right-wing religious groups to push the argument that religious discrimination laws allow them to speak out against gay rights in the workplace. In an election year, we'll see extreme positions pushed on both sides.
Friday, January 3, 2014
Call Me Prescient: How My 2013 Employment Law Predictions Fared
If you are a regular reader, you'll recall that I made predictions at the beginning of 2013 about what I thought we could expect. How did I do? Call me Cassandra.
Here's what I said would happen, and what really did:
1. Even More Active NLRB: 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.
Sure enough, NLRB didn't disappoint. They were up to full strength by the middle of the year. They continued to press for employee rights in non-union workplaces. They struck down some overbroad social media policies and policies on confidentiality of investigations. They rolled out an app to inform employees in union and non-union workplaces about their rights. It wasn't all pro-employee. NLRB upheld several Facebook firings. See also here and here for some of 2013's social media cases.
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.
EEOC tried to step up with the issuance of a guidance and then a clarification to its guidance on criminal background checks, but was repeatedly shot down in the courts. Let's hope they don't give up on this important issue, which definitely has a disparate impact on minorities. EEOC also stepped up its enforcement of Title VII regarding LGBT employees under the theory of "sexual stereotyping." They also cracked down on overbroad agreements that limit employees' ability to file with EEOC. I still see a tendency to accept employer position statements as gospel, at least here in Florida, but there's definite progress. Baby steps.
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.
Sure enough, the litigation has begun. See also here and here. Still nothing on the federal front to recognize states' rights, but it's only a matter of time.
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.
Wow! What a year for gay rights. The Defense of Marriage Act was stricken down, which led to the Feds deciding that FMLA and EBSA do protect gay couples in states that legalized gay marriage. While there was no legislation passed to amend Title VII or FMLA, ENDA did pass the Senate (although it is stalled indefinitely in the House).
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.
2013 saw more fast food strikes and Wal-Mart strikes. As predicted, Wal-Mart retaliated and NLRB slapped them.
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.
There were some baby steps toward becoming more pro-employee in the federal courts. The usually very pro-employer 11th Circuit sided with the NLRB in a recess appointment case. Several federal courts found that sex discrimination includes sex stereotyping, providing protection for LGBT employees. Some other pro-employee decisions here and here. Still, the Supremes came in overwhelmingly pro-employer this year. Overall, the federal courts remain a relatively unfriendly place for employees in many circuits.
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. 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.
Some courts have tossed one-sided pro-employer arbitration agreements. However, the Supremes upheld class action waivers in arbitration agreements. The NLRB lost when it attempted to invalidate an arbitration agreement. Meanwhile, FTC is challenging a consumer arbitration clause. No legislation passed to help consumers or employees this year.
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.
Still no anti-bullying laws passed in 2013. Sigh.
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.
Arkansas, Colorado, Illinois, Nevada, New Jersey, New Mexico, Oregon, Utah, Vermont and Washington passed laws against demanding social media passwords, with at least 36 states trying to follow suit.
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.
10 states and almost 60 local governments have passed "ban the box" legislation prohibiting or limiting the use of criminal background checks. Some major employers also announced they'd end the practice. There was one unsuccessful case arguing that criminal background checks had a disparate impact on men. It didn't come from EEOC. As I discussed in 2 above, EEOC lost a number of criminal background cases this year based on racial impact. It is no surprise that it didn't try to expand the theory to include sex discrimination.
Overall, 2013 was a mixed bag for employees. Better than some years, and we definitely saw some activity to protect employees. The biggest surprise was the passage of some minimum wage increases, with 13 states raising the minimum wage.
Stay tuned for my predictions for 2014.
Here's what I said would happen, and what really did:
1. Even More Active NLRB: 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.
Sure enough, NLRB didn't disappoint. They were up to full strength by the middle of the year. They continued to press for employee rights in non-union workplaces. They struck down some overbroad social media policies and policies on confidentiality of investigations. They rolled out an app to inform employees in union and non-union workplaces about their rights. It wasn't all pro-employee. NLRB upheld several Facebook firings. See also here and here for some of 2013's social media cases.
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.
EEOC tried to step up with the issuance of a guidance and then a clarification to its guidance on criminal background checks, but was repeatedly shot down in the courts. Let's hope they don't give up on this important issue, which definitely has a disparate impact on minorities. EEOC also stepped up its enforcement of Title VII regarding LGBT employees under the theory of "sexual stereotyping." They also cracked down on overbroad agreements that limit employees' ability to file with EEOC. I still see a tendency to accept employer position statements as gospel, at least here in Florida, but there's definite progress. Baby steps.
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.
Sure enough, the litigation has begun. See also here and here. Still nothing on the federal front to recognize states' rights, but it's only a matter of time.
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.
Wow! What a year for gay rights. The Defense of Marriage Act was stricken down, which led to the Feds deciding that FMLA and EBSA do protect gay couples in states that legalized gay marriage. While there was no legislation passed to amend Title VII or FMLA, ENDA did pass the Senate (although it is stalled indefinitely in the House).
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.
2013 saw more fast food strikes and Wal-Mart strikes. As predicted, Wal-Mart retaliated and NLRB slapped them.
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.
There were some baby steps toward becoming more pro-employee in the federal courts. The usually very pro-employer 11th Circuit sided with the NLRB in a recess appointment case. Several federal courts found that sex discrimination includes sex stereotyping, providing protection for LGBT employees. Some other pro-employee decisions here and here. Still, the Supremes came in overwhelmingly pro-employer this year. Overall, the federal courts remain a relatively unfriendly place for employees in many circuits.
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. 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.
Some courts have tossed one-sided pro-employer arbitration agreements. However, the Supremes upheld class action waivers in arbitration agreements. The NLRB lost when it attempted to invalidate an arbitration agreement. Meanwhile, FTC is challenging a consumer arbitration clause. No legislation passed to help consumers or employees this year.
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.
Still no anti-bullying laws passed in 2013. Sigh.
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.
Arkansas, Colorado, Illinois, Nevada, New Jersey, New Mexico, Oregon, Utah, Vermont and Washington passed laws against demanding social media passwords, with at least 36 states trying to follow suit.
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.
10 states and almost 60 local governments have passed "ban the box" legislation prohibiting or limiting the use of criminal background checks. Some major employers also announced they'd end the practice. There was one unsuccessful case arguing that criminal background checks had a disparate impact on men. It didn't come from EEOC. As I discussed in 2 above, EEOC lost a number of criminal background cases this year based on racial impact. It is no surprise that it didn't try to expand the theory to include sex discrimination.
Overall, 2013 was a mixed bag for employees. Better than some years, and we definitely saw some activity to protect employees. The biggest surprise was the passage of some minimum wage increases, with 13 states raising the minimum wage.
Stay tuned for my predictions for 2014.
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.
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.
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.
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.
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