targetFor many years, I’ve used my first post each year to look back and ahead at the area of employment law.  My record of predictions has been about what you would expect someone predicting the future — about average.

Last year at this time, I said a few things though that seem to resonate with me including this:

That said, it feels like we’re in a period where employment law issues are being tweaked rather than rewritten.  There hasn’t been a new federal law on employment law in many years, for example.  And at the state legislature, you wonder how much more laws can be put in place on employment law before employers say “enough”.  (See, e.g., General Electric.)

Instead, what we are seeing and will likely continue to see are new rules being promulgated at the agency level — such the decision from the NLRB last week regarding recordings in the workplace.  Even the new white-collar overtime regulations may have less of an impact in Connecticut than some fear.

Thus, for 2016, I don’t think we’ll see as much as some predict.

So far pretty good. Even the white-collar exemptions got placed on hold, so there’s been no impact in Connecticut.

But I went on with this kicker:

Then again, let’s just check back in again in a year. There will be a new President and perhaps a change of political parties.

If there’s one thing I’ve learned about predictions, it’s that the future is never exactly what we think it will be.

Not bad, though I’m not sure there were many predicting both a Trump administration with Republican majorities in Congress to boot.

And so, 2017 is going to be different. Very different it seems.  The USDOL nominee is an outgoing fast-food company CEO for starters.  He’ll bring a management perspective far different than the current administration.

The biggest change we’ll see will come from the appointments to the National Labor Relations Board.  Expect the appointees to be management-friendly and roll back several decisions and rulings from the NLRB.  Those decisions, however, may take some time to work through however.

Federal increases to minimum wage or federal legislation on things like paid sick leave or employment law protection based on gender identity or sexual orientation also seem unlikely.

What happens at the U.S. Supreme Court is still up in the air as well, though don’t be surprised to see a return of a union dues or “agency fees” case.

What will happen at the state level? Stay tuned.

monkeyAh, predictions.

Way back at the start of 2015, I made a series of predictions regarding employment law in the then-upcoming year.

Not a lot of them occurred in exactly the same way I predicted. Sure, I talked about changes to the CHRO’s procedures, but my prediction regarding a Connecticut Supreme Court free speech case didn’t pan out.

So, for 2016, I resolve NOT to make any predictions.

That said, it feels like we’re in a period where employment law issues are being tweaked rather than rewritten.  There hasn’t been a new federal law on employment law in many years, for example.  And at the state legislature, you wonder how much more laws can be put in place on employment law before employers say “enough”.  (See, e.g., General Electric.)

Instead, what we are seeing and will likely continue to see are new rules being promulgated at the agency level — such the decision from the NLRB last week regarding recordings in the workplace.  Even the new white-collar overtime regulations may have less of an impact in Connecticut than some fear.

Thus, for 2016, I don’t think we’ll see as much as some predict.

Then again, let’s just check back in again in a year. There will be a new President and perhaps a change of political parties.

If there’s one thing I’ve learned about predictions, it’s that the future is never exactly what we think it will be.

 

Today, cross-posted on the LXBN site, I reflected on the biggest legal developments of the first half of the decade.  I am reposting it here, but my sincere thanks to Lexblog for the support it has given me over the past 8 1/2 years and for the opportunity to provide some insight on its site.

yearsWhen I was asked by LexBlog to provide insight into my most significant story I’ve written about in the first half of this decade (and wondering if it started on January 1, 2010 or 2011?), I first thought about looking at some statistics of pages visited on my blog.

Turns out that my most read story was….a blurb on what the IRS reimbursement rate for business travel was in 2010. (Followed by stories on the rates for 2015, 2011 and 2012.).

So, let’s just say that blogging statistics can be a bit deceiving. Though, one other statistic really stands out: There’s been a huge rise in viewing the blog on both social media and on mobile phones.

And that, I think leads me what I think is the big overall story of the 2010s: The rise of social media in employment law.

This is, of course, not new. Back in 2012, I indicated that the biggest story then was the rise of social media.

That has only been amplified in the following years.

For the first few years of the 2010s, it seemed that every other presentation I did was on social media. First, it was to educate employers on what social media was. But then beyond that, was the second layer — how was social media impacting the workforce.  In 2012, I helped plan WESFACCA’s “Day of Social Media” to help educate in-house lawyers on the perils of social media.

My discussions ranged from the now seemingly quaint “Facebook firing” case of November 2010 to the September 2013 case where a Facebook “like” was deemed a protected activity to the new 2015 Connecticut law restricting employer access to personal social media accounts.

But I do think the tide is turning a bit.  Social media has become so mainstream that it is now just part of the myriad of things human resources has to keep track of.  People are less shocked by a Facebook post and employees have become smarter about their use of privacy settings too.

Sure, people still say stupid things on social media and they are still getting fired for it (appropriately, in some instances) but employers are now able to keep some perspective about the whole thing too.

So, in five years (and heaven help all of us if I’m still writing this blog in five years), I think it’s unlikely to still be dominating posts like it did for the first half.

What will take it’s place? My wager is on data privacy.  Yes, it’s a bit self-serving of me to predict this in light of the presentation we did this month on this very topic.  But judging by the interest we’ve been getting in the subject, I think we’re on to something.

Employee data is just one aspect of this.  Rather, employers who store information on a computer are subject to attempts at hacking and theft on a daily basis.  Plus, employees who transmit information may do so without encrypting the information — leaving the data open to prying eyes.

I don’t know where it all will lead, but I will say that if you aren’t doing everything you can to ensure the safety of the data on your networks, you probably aren’t doing enough.

Having tackled the predictions in employment law on a federal level, what does the future hold for employers in Connecticut?

Besides a debate on Family & Medical Leave Insurance, there are a few things we’re likely to see.

1. New bills at the General Assembly: The first one comes courtesy of Mara Lee over at the Hartford Courant; with “predictable scheduling” now become a cause celebre for unions (see this article in The New York Times back in August), the co-chair of the General Assembly’s Labor Committee promises a hearing on the subject.  A bill seems still far off, but issues like this have a tendency to percolate for a bit. Expect to hear a lot more about this.

What else? I still think a bill on workplace bullying will again come up for debate.  And the Commission on Human Rights and Opportunities will again push for changes to their procedures as well, according to minutes from recent CHRO meetings.  Non-compete legislation always seems to be popular too.  With a new two-year cycle starting up soon in the “long” session, it’s likely to be busier than last year.

My prediction? We’ll see a new rule or two, but with all the mandates that have been passed in the last four years, I expect there to be more bluster from politicians, but that we’ll actually see a bit less interference when all is said and done — at least for now.

2. Clarification on Free Speech Rights for Private Employees: The Connecticut Supreme Court is set to hear arguments later this winter on whether the Connecticut Constitution offers private employees more free speech rights than the First Amendment to the U.S. Constitution.  At issue in Trusz v. UBS is whether speech that relates to an employee’s official job duties is protected under the Connecticut Constitution; under the Schumann case from a few years ago that I was involved with, the Court found that such speech isn’t protected under federal law but left open the issue under state law.

My prediction? The court will find that such speech isn’t protected under the Connecticut Constitution.  But I should disclose that I’m not exactly an impartial observer; I am leading a team of attorneys here that filed an amicus brief on behalf of the Connecticut Business & Industry Association this fall advocating the same thing.   My more confident prediction is that the decision from the court will not be unanimous.

3. Agencies and Task Forces Take Leading Roles: There are several issues that have been “floating” out there for a while. Expect to see movement on some of them.  For example, the Domestic Workers Task Force is set to issue a report on October 1, 2015 that could set the tone for future legislation on the subject.  And on July 1, 2015, new electronic prevailing wage notices go into effect.

At the CHRO, expect to see some additional visibility from this group. With Gary Collins’ leadership at the CHRO, a long-standing backlog on cases continues to get winnowed down.  And with new leadership from Tanya Hughes, we’re seeing more public outreach through programs, newsletters and even a new blog developed by interns (and which has a nicer splash page than this one….).  And a new computer system for the agency — set to start last week — will finally bring it up speed, years after a prior system outlived its useful life.

On the flip side at the CHRO, there is little stopping the trend of the overwhelming number of cases being retained for mediation and investigation.  For employers, this means that cases filed at the agency will, on average, continue to be more expensive to defend than five years ago.

My prediction? Beyond these, I also predict that we’ll see some impact from the introduction of revised white-collar overtime rules at the federal level.  Connecticut may use those changes to revisit the rules at the state level.

2014 was a relatively quiet year in employment law overall in Connecticut. I expect a busier and buzzier year in 2015.

If you spend anytime on the Internet, you’ve come across headlines like this one. (Yes, it’s a little bait-and-switch, but you were expecting that, weren’t you?).

Indeed, sites like Upworthy have become big business in the last year all due to headlines that you can’t resist.

Well, that and Grumpy Cats.

(For an excellent recap of how we’ve all created a viral content monster, check out this post as well. No really.)

These headlines are the modern-day equivalent of the toddler who screams for attention. With the number of employment law blogs and social media channels that have proliferated out there, every new case is treated (by some, not all) as the MOST IMPORTANT CASE EVER filed by or decided by (choose one: NLRB, other federal agency, federal appeals court, state court, etc.)

But looking back over 2013 and looking forward to 2014, it feels that we’ve been in a period of incremental changes — not revolutionary ones.  And thus, the headlines seem unwarranted.

Yes, social media has been this new OMG thing in the workplace. But, it’s been around now for 5+ years.  In fact, last January, I joked that I was writing my “last” post about social media.

While that prediction was doomed to fail (as I also predicted), the law of social media in the workplace is looking a lot more predictable than most experts would care to admit.

Take the notion that a Facebook “like” could be protected speech.  Under the facts of a case that was decided last fall, the court’s decision that a “like” of a political candidate’s page might be protected free speech doesn’t seem so foreign.  The court said it was the modern day equivalent to a political lawn sign.   That seems about right.

And if an employee is on Facebook for four hours a day? Discipline them. Just like you would for an employee who took a 4 hour lunch break.  Again, not so revolutionary.

And then think about federal legislation.  Hard pressed to think of ANY that have passed in the last 3 years? That’s because there essentially hasn’t been any federal employment laws that have passed since we’ve had a gridlocked Congress.  Sure, bills get filed but they basically have zero shot at passing Congress.

Now, that’s not to say Connecticut is entirely quiet; the minimum wage increased on Wednesday, for example.  And we had changes to the state’s personnel files law too.  But an attempt to modify the state’s non-compete laws was vetoed by the Governor and even a privacy bill for social media passwords went nowhere.  And Connecticut court decisions on employment law tended to be yawn-worthy as well.

And while the NLRB is still trying to expand its reach (see the latest ALJ decision ruling that a company’s “no gossip” policy violated federal labor laws), courts seem to be reigning the board back in.

Before the holidays I gave a recap to BloombergBNA regarding some of the developments, but again, it was hard to get too excited about what has transpired.

Will 2014 be different? Perhaps.  I can’t predict the future anymore than you can. (If you want to see how my predictions for 2013 turned out, check them out here.)

But the lesson I would draw from the last year is to read more than just headlines.  Employers in Connecticut have enough to worry about, but it’s hard to see that any one bill or decision will “restore your faith in humanity” or “shock you to your core”.

And so we are left with this headline: Employment Lawyer Recaps 2013 and Predicts 2014.  Yawns Slightly. 

Happy New Year.

In this week’s Connecticut Law Tribune, I filed my annual “forecast” of employment law for 2013. As with the weather forecasts, it is subject to change on a moment’s notice. So drink your “tea” with a grain of salt.

So, last year, I brought out my trusted Magic 8-Ball to make my 2012 predictions. Looking back on those predictions, it did pretty well. It’s only flaw was suggesting that new NLRB notice rules would go into effect in 2012; a court injunction prevented that from happening.

But alas this year, the Magic 8-Ball was blown away by Hurricane Sandy. Fortunately, I’ve been catching up on the Harry Potter series and the art of reading tea leaves.

Will our tasseography be as accurate? Only Divination Teacher Sybill Trelawney knows for sure.

Tea Cup #1 — Wand

Reading the Tea Leaves

After the first cup of green tea, the tea leaves seem to leave an imprint of a magic wand.

The horrific Newtown shooting will surely be a defining moment here in the state, much like 1983 Stratford toll booth crash or even the 1944 Hartford circus fire.  

What might this mean for employment law? There will likely be a renewed appetite for legislative solutions to incidents of violence. And keeping violence out of the workplace and schools is no doubt going to be an important area to focus on.

While the legislature will undoubtedly want to wave a magic wand with legislation to make it all better, sadly, even they know that it’ll take more than a wand.

Tea Cup #2 – Tweeting Bird

Our second cup of black tea leaves a bird – surely, a symbol of Twitter.

Are you tired of social media yet? No? Good, because expect more stories about employees who behave badly online and employers who overreact to a tweet about their business that no one saw anyway.

2012 certainly brought more noise to the issue. What it still lacks though, is defining clarity. The NLRB issued various decisions, many of which erred on the side of the employee, saying that employee use of Facebook is a protected concerted activity.

Of course, that presumes a level of sophistication by most employees who are not using Facebook to “rally the troops”; they use it to share an anecdote about their day or to rant about a bad day at work.

I sense two developments relating to social media.

First, I see more legislation restricting employers from violating employee privacy. Already, Maryland and California passed new laws prohibiting employers from seeking Facebook passwords. Connecticut can’t be that far behind.

Second, I forecast some judicial clarity on “protected” activity and appropriate employer policies. As these cases wind their way through the NLRB, we are due to have courts finally add their perspective. Expect some circuit splits to develop as to what should be protected and how employers can react.

Continue Reading Reading the Tea Leaves for Employment Law in 2013 (Harry Potter Edition)

A few weeks ago, I sat down and crafted an article for the Connecticut Law Tribune that laid out my predictions for 2012.  That article was finally published this week here.

Among the topics I tackle are new U.S. Supreme Court and Connecticut Supreme Court decisions, possible new legislative developments, and whether the trend of wage/hour cases will continue.

Of course, in between the time I wrote the article and the time it was published, one of the topics has already been affected. The NLRB announced late last year that it was postponing implementation of the new posting requirements from January 31, 2012 to April 30, 2012.  While I still think that the posting requirements are going to be upheld by a court, the persistent delays by the NLRB have me thinking that perhaps the posters may not be a sure thing after all.  We’ll have to wait and see.

In such a short article, there’s plenty that I was not able to cover.  For example, employers are unlikely to see any new developments from U.S. Congress as gridlock continues.  And what’s the future of the NLRB in light of such gridlock?  Other questions persist as well: Can employers still use the expired FMLA forms? (Jeff Nowak of the FMLA Insights blog tackles that one today.)

What are your predictions for 2012? Post them in the comments below and we’ll check on them at the end of the year.

It’s easy to make predictions about the future.

It’s far harder to look back at them and see if you were right.  Fortunately or unfortunately for me, my predictions are in print — there for a looking.

So how did my prediction go for 2011?

Well, in my main article, I predicted that on a national-level, there wouldn’t be much, if any, legislation to think about:

As the new year begins, there’s a tendency to try to predict what the new year will bring. Indeed, while catching up on some posts, I’ve been struck by the hysterical tone that some are using to scare employers into believing the entire employment law world is going to be turned upside down in 2011.

I’m here to tell you one simple thing:   It won’t.

Yes, some of the federal agencies are going to roll out some new rules. But let’s be honest — these types of changes always happen. With a Republican-controlled House of Representatives, it is unlikely (though not impossible) that we’re going to see any significant legislation coming out of Congress that will impact employers in any meaningful way.

What we are going to see is more of the same. More enforcement of existing rules. More efforts by the government to ensure compliance.

Not too bad at all.  In fact, there were no new employment laws to speak of, only actions by both the DOL and the NLRB to enforce (and some would say, expand) existing laws.

And on a local level? Well, after the election of Governor Malloy, I had one big prediction: Mandatory Paid Sick Leave.   By now, we all know how that turned out.   I also indicated that gender identity anti-discrimination and workplace bullying would also receive a lot of attention and sure enough, that proved correct as well.

Of course, there were plenty of other developments as well, including some notable U.S. Supreme Court cases and unexpected changes to the CHRO process.  So, while I was far from perfect in predicting all of the things to consider, I can look back at the predictions for this year with a bit of a smile.

And what will 2012 bring? Well, I’ve drafted an entire piece for the Connecticut Law Tribune that should appear next week.  But here’s one sneak peek at my prediction: We will likely see the one of the most significant free-speech-in-the-workplace decisions come out of the Connecticut Supreme Court by mid-2012.

So stay tuned.