Employment law, like every other field of law-is evolving every day. The federal and state legislators pass new laws or amendments on existing laws. The agencies that have been tasked to enforce these laws issue directives that explain how the laws should be interpreted. The federal and state courts also interpret these same laws. Those of us who work in this field spend a good portion of each week simply reading what is going on in our profession.
Much of what will come in the future for employment law is being influenced by our economy, the stability of the world, the stock markets, and who is in charge in Washington. That being said, here is what I predict we can expect in the next few years.
• The cost of health care will continue to be an issue. The legislators and the courts will be slow to see any downside to employers promoting healthful behaviors through rewards and punishments.
• Some states will provide additional paid and unpaid leave, similar to the FMLA. Some of this paid leave may be sponsored by the state and paid for by employees.
• The courts will finally address the issue of employers that run an employee’s allotted FMLA time off concurrently with vacation or sick time for an employee who is out of work due to a medical condition.
• In the distant future, the issue of penalizing the overweight or the smokers with financial costs may become an issue of discrimination. However, this is far on the horizon.
• The next addition to the discrimination bases for the EEOC will be sexual orientation, followed by an additional penalty for military discrimination. A large number of states already have these two discrimination bases added to their laws.
• Existing laws will be modified to provide additional protection for returning military, families of service members, and disabled service members. In January 2008, President Bush signed an extension to the Family and Medical Leave Act to allow additional leave for family members caring for members of the military who were injured on duty and under other circumstances.
• There will be a tightening on what an employer can use in conducting a background check of potential employees.
• The EEOC will continue to look for creative ways to reduce its backlog of discrimination cases. While some offices have already tried stronger initial reviews and allowing investigators in other locations to assist, there is no universal consensus on how to resolve the exponentially growing number of complaints that the EEOC receives.
• States who are finding it hard to process all the discrimination complaints will provide options to employees who wish topursue their claims in a local court. Several states have already given employees the option to file their complaints in a state civil court instead of waiting for the state agency to perform the investigation. This will increase the cost to those employees who take this option, but will clear some of the backlog.
• The next hot topic in Washington will be how to keep U.S. businesses from outsourcing large numbers of jobs to foreign countries while causing massive layoffs here. Some suggestions considered will include penalties, taxes, and the limitation of stock trading.