Alabama Employment Law Report
Hot Topics in Employment Law
Last week, I attended the 6th Annual American Bar Association's Annual Labor and Employment Law conference. It was attended by lawyers from around the world, and focused on the current state of labor and employment law and what the hot topics of today and the immediate future. In no particular order, here are some of the topics talked about:
1. The National Labor Relations Board has been very active pushing it's agenda, and focusing on policies and procedures. Remember that the National Labor Relations Act provides protection to employees who engage in protected concerted activity as it relates to the terms and conditions of employment, in both union and non-union settings. The NLRB has recently addressed polices concerning social media, at will employment, and the confidentiality of investigations as the result of allegations of harassment and discrimination.
2. Retaliation charges filed with the EEOC are now number one in that 37% of all charges filed contain allegations of retaliation. This is a higher percentage then race and sexual harassment charges.
3. The Fair Labors Standards Act continues to account for a great deal of litigation, both for overtime and misclassification of workers as either exempt or as independent contractors.
4. The improper use of computers can lead to both criminal and civil liability under the Computer Fraud and Abuse Act, the Electronic Espionage Act (criminal only), the Electronic Communications Privacy Act, the Stored Communications Act, and various state laws. The local U.S. Attorneys' office has a Computer Hacking and Intellectual Properties (CHIP) lawyer, and can be contacted should there be any issues. You can visit Cybercrime.gov, for more information and resources from the Department of Justice.
5. The EEOC continues to be busy, but like most governmental agencies claims a budget shortfall. The EEOC will continue to be active in issuing regulations and enforcement guidance, but will be more selective when filing lawsuits. According to one of the attorneys for the EEOC, they are "trying to push the envelope" in certain areas, including same sex harassment, gender stereotyping, and in the LGBT arena.
6. Social Media continues to raise concerns in the workplace. In the U.S., 163 million people, or 53% of the population, use Facebook. Globally, there are over 1 billion users of Facebook, and there are 2.5 billion posts a day. There is an average of 3,000 tweets a second, with the record being set during the last presidential debate, with 100,000 tweets per second. The use of other SM sites continues to grow.
7. Workplace bullying, both in person and cyber-bullying is growing.
Practice pointer. As we approach the end of the year, now is a good time for employers to review and/or have an audit done of their policies and procedures, and revise them as necessary to comply with the changes that have occurred over the past year. Make sure there is proper classification of employees for FLSA purposes, that the NLRA is not violated, and that other policies are current and up to date. Now is also a good time to train all workers, including supervisors, on various employment related issues, including harassment, discrimination, social media policies and other workplace rules and regulations.