2008, and most analysts forecast positive results for employers.
In Sprint v. Mendelsohn, the Supreme Court is likely to rule that plaintiffs in discrimination lawsuits cannot introduce evidence at trial which would show that managers not involved in the decision challenged at trial might also harbor biased feelings (“me too”evidence).
In Kentucky River v. EEOC, the Court is likely to uphold an employer’s right to use age as a determining factor in a retirement plan, rejecting an ADEA challenge by the EEOC.
And in CBOCS West v. Humphries, the Supreme Court is expected to reject a plaintiff’s argument that they can use Section 1981 (a more liberal statute than Title VII) to bring retaliation claims normally filed under Title VII.
For more information, contact the author, a partner with Fisher &Phillips (www.laborlawyers.com), at email@example.com or (503) 242-4262.It’s sometimes tough to see what the future holds in the always unpredictable world of employment law. The state of the economy, new legislation, the politics of an election year, unexpected court decisions, societal trends, and media/cultural happenings all play a role in how our workplaces will be shaped in 2008.
My employment law forecast predicts an increase in employment litigation filed by disgruntled former (and current) employees.
The EEOC has announced a number of enforcement priorities for the new year, including a renewed emphasis on bread and butter”claims such as sexual harassment and retaliation, and a new emphasis on generational issues created by the mixture of different generations in the workplace.
In December, the agency issued a new fact sheet on the application of federal anti-discrimination laws to employer selection procedures, signaling intent to place a renewed emphasis on the process of screening applicants for hire and employees for promotion.
Combine an invigorated EEOC with the ever-increasing number of states that allow for unlimited punitive damage awards, a growing pool of potential litigants as baby boomers push the number of employees in protected classes to record levels, and an increasing employee awareness of individual rights, and you have the recipe for an increase in litigation in 2008.
Will non-competition matters continue to increase?
My forecast predicts the following conditions for 2008: a tight labor market, an increase in high-tech and professional sector jobs, and an increasingly younger and more transitory workforce. Add them together, and you have the formula for a burgeoning role in non-competition and trade secrets litigation.
I predict that employers will continue to recognize the need to aggressively protect their intellectual property through non-competition agreements and non-disclosure pacts in 2008, while employees (and their lawyers) who yearn to be free of these confines will actively litigate these matters in the coming year.
Will the ADA get stricter?
The Americans with Disabilities Act (ADA) used to be one of the favorite toys of attorneys of disgruntled workers, and the 1990’s were replete with stories of seemingly-frivolous disability claims filed by people who didn’t seem all that disabled (eyeglass wearers, mild headache sufferers, etc.).
Luckily for employers, the federal courts stemmed the tide of ADA lawsuits starting in 1999 with a series of decisive victories for defendants, and disability advocates (and plaintiffs’attorneys) have been hopping mad ever since.
To overcome these setbacks, Congressional legislators have introduced bills intended to toughen the ADA, but have always been defeated.
In 2008, they will once again push for greater employee rights with the “ADA Restoration Act,”a law that would provide much greater rights to employees and inevitably lead to more lawsuits (and greater jury verdicts and settlements).
My prediction is that the bill will once again face defeat in 2008, but if a Democratic president is elected in November, my forecast will probably change for 2009.
What about Title VII? Will it be amended in 2008?
The House of Representatives passed a bill that would amend Title VII in favor of employees in 2007, responding to the Supreme Court’s decision in Ledbetter v. Goodyear Tire.
That decision forces potential plaintiffs in wage discrimination claims to file their lawsuits quickly or forever be barred from suing. The proposed new law would extend the time frame in which plaintiffs could sue, and would obviously lead to more successful discrimination lawsuits being filed.
But as the calendar turns to 2008, the bill is stuck in the Senate and doesn’t seem to have any momentum.
Moreover, it is likely that the President would veto the bill if passed and doubtful that Congress could override any such veto. As with the ADA Restoration Act, expect this bill to die in 2008, but stay tuned for a potential reemergence in 2009 if Democrats win back the White House.
Are employers off the hook with immigration battles?
2007 was a roller coaster year for employers on the immigration front.
After President Bush’s immigration proposals were shot down by Congress in the summer, the administration announced a wide-sweeping course of action by the Social Security Administration which was to give real teeth to its program of verifying employee social security numbers.
If employers could not verify that workers were properly documented, they would be forced to fire the employee within 90 days or face serious consequences, including criminal sanctions.
But before the program could be rolled out, a series of legal challenges by labor unions and small business groups derailed the process and forced the government to rethink its strategy. As 2007 ended, the government retreated to its corner and vowed to come out swinging in March 2008.
Expect the SSA and the Department of Homeland Security to tackle workplace immigration issues with renewed fervor in 2008, and expect a flurry of no-match letters to be sent out by the middle of the year.
This will most likely lead to a run on legally-documented workers and a summer labor shortage, especially for the construction, hospitality, and agricultural industries, and may drive illegal workers into an ever-growing underground employment market.
Will wellness programs be a hot topic?
Rising health care costs will continue to challenge employers in 2008, but a growing trend in wellness programs is expected to offer safe haven for companies in ever-increasing numbers.
Thanks to new clarifying government regulations that went into effect in 2007, employers can now feel secure in charging more to employees who are obese or display other unhealthy lifestyle choices, while offering premiums to those workers who live a healthy lifestyle or who actively participate in company-sponsored wellness programs.
This is a welcome trend for employers and will no doubt accelerate in the coming year as more health-savvy employees request the cost breaks, and more employers become aware of the potential savings.
Is “FRD”the expected buzzword of 2008?
If you haven’t heard of FRD by now, you can bet you will have heard plenty of it by the end of the year. FRD stands for “family responsibility discrimination,”and although it doesn’t represent a new kind of discrimination law, it encompasses the growing number of cases that deal with issues involving worker’s family responsibilities -including child-rearing, pregnancy, breast-feeding, sick children and paternity leaves.
The EEOC has made FRD discrimination an enforcement priority for 2008, especially after seeing that the amount of pregnancy-related claims rose by 23% in the previous ten years while race and gender discrimination claims declined over that same time period, and also seeing that FRD claims in general increased by 400% since 1996.
The Commission recently issued new guidelines to cover FRD discrimination, which makes it almost certain that the rise in claims will continue in the new year.
As more mothers enter the workforce, and as the younger workforce is more aware of its rights under federal and local laws, it is virtually certain that you will hear about FRD claims in 2008 if you haven’t already.
Will the Supreme Court continue to be kind to employers?
Expect 2008 to see the continuation of a several-year trend which has seen the Supreme Court rule in a very pro-business manner.
There are more than a few employment cases on the Court’s current docket, all of which will be decided before the end of June