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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.


  1. I wonder why it is so difficult to implement new laws which are in favor of employees. Everytime a new law is made, it is not necessarily implemented for atleast two or three years.

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