2009 will not go down as the most exciting year for employment law. There were a number of "honorable mentions" for items that have had an impact, but nothing — in my view really stands out.
I suppose for Connecticut, the Ricci v. DeStefano case has to be put up at the top of the list of noteworthy developments. After all, it’s rare that a case from the Constitution State gets heard in front of the nation’s highest court and even rarer that it is an employment case.
But six months after the case was decided, I still have a hard time seeing any wide-ranging impacts from the decision for private employers. And frankly, I still think the case only drew the attention it did because of the nomination of Sonia Sotomayor (who was involved in the decision at the Second Circuit stage) to the U.S. Supreme Court.
As for the some other Supreme Court cases, the one that could stand out is Gross v. FBL Financial Service case — which addresses the burden of proof in age discrimination cases — have yet to explored fully and may be overturned by legislation in any event.
I would argue that the biggest development for employment law isn’t a case or a new law, but the incorporation and adoption of social media — both in policy and usage. It seems like every week or two, I’ve been asked to give a presentation or comment on an article on the topic. In fact, a webinar I did earlier this year drew the highest attendance for any of our webinars.
But because social media wasn’t developed in 2009 and is really impacting life in so many different ways, I’m taking it out of the running for the biggest employment law story for 2009.
Other potential nominees for important employment law developments are:
- The Lilly Ledbetter Fair Pay Act — But as I suggested last January, the impact of this new legislation has been limited.
- The FMLA amended regulations – Again, this had the potential to shake things up, but considering Connecticut has its own set of rules that haven’t been amended, all its done is create more headaches for employers.
- Employee Free Choice Act – This bill — which would get rid of some secret ballot union elections and institute mandatory arbitration for some initial collective bargaining agreements — has been on the table for much of 2009. If passed, it could have a large impact on employers in Connecticut and nation-wide. But so far, the votes haven’t been there.
- The COBRA subsidy (and extension) – This was more of an administrative burden than anything else and while you could argue with the means that the government used, the intent — making sure that people did not lose their health insurance — was certainly laudable. And with new health care legislation now looking like a reality, we’ll see whether revisions to COBRA are further discussed.
- GINA – The effective date for GINA was mid November 2009 and the government started to release new regulations enforcing GINA (which prohibits genetic discrimination in employmen). But (yawn) here in Connecticut we’ve had that type of law for years. No big deal or change.
What does 2010 hold in store? I’ll save that for another day….