Jan 12, 2010

The Year to Come: How Will Employment Law Change in 2010?

My last post covered some of the many employment law developments of 2009, but what about the future? This could be another big year in the field, mainly because of the recent retirement announcements by Senator Dodd and Senator Dorgan, both Democrats. This means 2010 could be the swan song of the 60-vote Democrat (and Independent) filibuster-proof majority, giving some extra urgency to some of the labor and employee protective measures under consideration, such as:

  • The Employment Nondiscrimination Act (ENDA), which would add sexual orientation and gender identity to the list of protected characteristics under Title VII. I'm putting it first because I think it's most likely to pass. There, I said it.  
  • The Employee Free Choice Act, with or without the card check provision. This bill would increase penalties for labor law violations and require quicker elections, among other things. As currently written, it also requires the NLRB to certify a union if a majority of employees in the bargaining unit sign cards authorizing the union to represent them -- this is the card check provision. Last year, Democrats in the Senate indicated that they were willing to drop this most controversial part of the bill (perhaps in exchange for other rights, such as requiring employers to allow union organizers on company property). Now that unions feel that they are being asked to take the tax hit on their "cadillac" health care plans, however, they might feel they are owed a bit more from the Democrats.  
  • Leave provisions. There are a number of bills that expand employee rights to take leave, including the Healthy Families Act, which would require paid sick leave. There are some changes to the FMLA under consideration (including adding domestic partners, grandparents, siblings, and others as family members and undoing some of the recent revisions to the regulations). And then there's the bill to require time off for swine flu (it's not clear how long the shelf life is on this one).
  • The Civil Rights Act of 2010. OK, so no such bill has been introduced, but there has been enough grumbling about certain Supreme Court cases, including the Ricci case, the Gross case, and the Hulteen case, to make it a possibility.

Then, there are a few Supreme Court cases that should be interesting, including the Quon text messaging case, a case on whether two members of the NLRB have the right to issue decisions, and a disparate impact case on when a claim accrues. The court is also considering whether to hear a case on third-party retaliation, in which a man claims he was fired because his fiance filed a charge of discrimination against their employer with the EEOC.

Put all this together with the grand plans from the regulatory agenda I recently wrote about, and it adds up to another potential blockbuster year.