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.
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Have a general question about employment law? Want to share a story? I welcome all comments and questions. I can't give legal advice here about specific situations but will be glad to discuss general issues and try to point you in the right direction. If you need legal advice, contact an employment lawyer in your state. Remember, anything you post here will be seen publicly, and I will comment publicly on it. It will not be confidential. Govern yourself accordingly. If you want to communicate with me confidentially as Donna Ballman, Florida lawyer rather than as Donna Ballman, blogger, my firm's website is here.
Thursday, January 26, 2023
How Did I Do On 2022 Predictions? Call Me Cassandra
Posted by Donna Ballman at 7:30 AM
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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.