Top 5 Employment Law Issues to Expect in 2012

by Mike Mintz on December 28, 2011 · 0 comments

in martindale.com

As we conclude this year, the changes in employment law are noteworthy.  Indeed, there are a few issues that will likely become more popular in the coming year.  Here’s a list of the top five hot employment law issues, of which to beware in 2012:

  1. Severe Obesity as a Disability under the Americans with Disabilities Act.  This month, a federal court found that severe obesity is considered a disability under the ADA.  According to the EEOC, severe obesity is body weight 100% over the norm.  Other courts have found that for severe obesity to be a covered disability, it must be the result of an underlying physiological disorder.  However, this court found that severe obesity is a covered disability regardless of any underlying disorder.  As a result, case law now exists, which gives severely obese employees the right to sue under the ADA.  Employers should consider this when an employee requests an accommodation as a result of his immobility from severe obesity.  For more, see “Court Rules Severe Obesity Is a Disability Under the ADA.”
  2. The Importance of Social Networking to Employees.  Your employees can’t live without Facebook, Twitter and their smart phones.  These technologies are the equivalent to water and air to this generation.  Sure, employers can limit their employees’ access to social networking sites with the intention of increasing productivity, but there’s no limiting their smart phone access at the workplace.  Additionally, employees feel offended when their employers restrict their Internet access to social networking sites, because they feel that their employers don’t trust them.  In fact, employees admit that they would take a lower paying job, which doesn’t restrict their access to social networking sites, than a higher paying one, which limits their Internet access.  So, as an employer, try to find a good balance between employee trust and productivity.  Understand how important these technologies are to your employees and factor it into your hiring and human resources decisions.  For more, see “6 Things You Must Know About Social Media & Your Workforce.”
  3. Prevention of Workplace Bullying and Harassment.  Employment law experts have drafted a congressional bill, which, if passed, will hold employers responsible for workplace bullying and harassment, even if the bullying is not the result of the victim’s protected class.  If this law is passed, employers should expect workplace harassment suits to rise significantly.  To attempt to prevent such suits, employers should modify their workplace harassment policies according to the law and make every effort to educate their employees on the new law.  Additionally, employers should inform their employees on the importance of reporting workplace bullying so as to promptly resolve these issues.  For more, see “Bullying and Workplace Employment.”
  4. Retaliating Against a Complainant’s Family Member, Friend or Fiancé & Standing.  In January of 2011, the U.S. Supreme Court held in Thompson v. N. Am. Stainless, LP, 2011 U.S. Lexis 913 (Jan. 24, 2011) that a terminated employee, who was fired three weeks after his fiancé filed a sexual harassment claim against the employer, had standing to bring a Title VII retaliation action against the employer.  This case could lead to a slippery slope of terminated employees suing for Title VII retaliation, based on relationships with Title VII claimants.  As a result, employers might expect everyone and their brother…or fiancé…to file Title VII retaliation suits against their employers.  For more, go here.
  5. The Age Discrimination in Employment Act & Disparate Impact.  The EEOC recently finalized its regulation clarifying the ADEA’s “reasonable factors other than age” test.  The new standard makes it easier for employees to establish a prima facie case of disparate impact discrimination by eliminating the “business necessity test.”  The EEOC’s modification of this test is in response to two federal ADEA disparate impact cases, which eliminated the business necessity test.  So, with yet another law, which has been made easier for employees to sue their employers, employers should expect more suits and will have to strategize other ways to defend ADEA disparate impact cases.  For more, see “EEOC Approves New Age Bias Regulation.”

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