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.
Tea Cup #3 – Scales of Justice
Our next cup of white tea suggests a scales of justice. Even a young wizard like Ginny Weasley could make this easy prediction.
The Supreme Court has already heard arguments on several employment law cases this term; decisions are expected in early 2013.
In Vance v. Ball State Univ., the Court will decide whether a “supervisor” under Title VII includes someone who oversees other workers‘ on a daily basis but has no authority over their status — much like a “team leader” that some employers utilize.
If the court gets to the merits, it is probable that the court — in line with some of its retaliation cases — will keep a more expansive definition.
But some court observers think the court will pass on the merits and dismiss the case on procedural grounds. We’ll find out soon.
Other cases up for a decision include Genesis HealthCare Corp. v. Symczyk, which will decide whether an FLSA collective action is rendered moot if the defense makes an offer of judgment in the full amount of the representative plaintiff’s individual claim.
We could be surprised but overall, it’s hard to see any blockbuster employment law cases on the horizon.
Tea Cup #4 – A Porsche
Oh oolong tea. How you surprise us! The picture of a car (perhaps one caught in the Whomping Willow tree) threw me for a loop.
But then I recalled the case of Sarrazin v. Coastal Incorporated, a case pending oral argument at the Connecticut Supreme Court.
The case may help decide the parameters of what is appropriate “travel time” for workers in Connecticut.
Among the questions the court is being asked to decide: If a worker spends two hours each day driving the company truck to and from his home, is that compensable?
The court is also being asked to look at whether an award of attorneys’ fees is appropriate in these types of wage cases, absent a finding of bad faith.
Connecticut has yet to have a real blockbuster of a wage/hour case. But employers looking at workers’ commuting time may have to reconsider their practices. This case has the potential to shake things up.
There are other cases out there that the Connecticut court should be addressing in 2013, including Johnson v. Board of Education of New Haven, which may look at the effect of a “recall” provision in an employment contract.
Tea Cup # 5 – Shovel
The caffeine is starting to kick in and my head is starting to spin. Our last cup of tea — a rare red tea — shows a shovel. Does that mean a long winter? No, a shovel means work — and with work, the National Labor Relations Board comes to mind.
And 2013 has the potential to be banner year for union and worker related issues.
Already, in late 2012, the Board overturned 50-year precedent by announcing that employers may not unilaterally discontinue dues checkoff provisions after the expiration of collective bargaining agreements.
What else might be on the horizon? At-will disclaimers have been a recent target, though in late October, the Board seemed to be retreating a bit on that. And confidentiality of investigations is another.
But with the election results in November, Board members may be emboldened to pursue an ambitious agenda to reshape union-related law for years to come.
The U.S. Department of Labor may also be advancing some notable rules in the next year. A rule permitting domestic caregivers to earn overtime and minimum wage may be forthcoming relatively soon.
With sweeping new employment laws unlikely to pass both chambers of Congress, regulation and rule reform remains the obvious focus over the next year.
A Final Word
Reading the tea leaves is risky business.
But as Hermoine Granger once implored, “And now we wait.”