More signs this week that the federal government is ramping up enforcement of employment laws. The Department of Justice Civil Rights Division is seeking a $22 million budget increase for 2010, and is seeking to hire 50 new attorneys. Law Memo Employment Law Blog reports that the EEOC has been very active recently in filing lawsuits. The Agency filed 32 lawsuits against employers during one seven day period in September. Add to that 13 new lawsuits filed or announced on September 29 alone. The Department of Labor is in the process of hiring 250 new investigators to look for wage and hour violations, particularly in the areas of overtime requirements, minimum wage, and employee breaks. If you have not done so already, now would be a good time to conduct an audit of your employment practices and procedures.
This post on HR Daily Advisor offers practical advice on how to avoid retaliation claims. The first rule: don’t let managers or supervisors take adverse action against employees who have complained without first checking with HR.
Washington DC Employment Law Update reports that Senate Judiciary Committee Chairman Patrick Leahy (D, VT) announced his committee is going to hold a hearing to investigate whether the Supreme Court has been misinterpreting laws designed to protect workers from discrimination. On the witness list, Jack Gross, the plaintiff from Des Moines in the case Gross v. FBL Financial Services, Inc. (See our related post on this subject here, as well as this one from Workplace Prof Blog). Gross held that an age discrimination plaintiff must prove that age was the "but-for" reason for the adverse employment action; in other words, the employment action would not have been taken "but-for" the employee’s age. Before Gross, most courts required the plaintiff to prove only that age was "a motivating factor". Amending the ADEA to lower the burden of proof for employees may be added to Congress’ list of pending employment legislation.
Are lawyers giving bad advice about the impact of new technology in the workplace? In this post on the Fistful of Talent blog, Kris Dunn complains that lawyers too often advise clients only about the perils of social networking and other cutting edge communication tools. She contends this type of legal advice only scares HR professionals away from modern technology, rather than empowering them to use it effectively. Attorney Anthony Zaller of California Employment Law Report proposes this solution: if you want practical legal advice about social networking technology, make sure your employment lawyer uses Facebook, LinkedIn or Twitter, or at least uses a Blackberry or iPhone. I’m not sure a lawyer’s own use of social networking technology will allow them to give better advice on the subject; but, the point is well taken that clients need solutions to the legal issues this technology presents, not merely warnings about the inevitable lawsuits.
Next Friday (October 9) I will be presenting a talk entitled "the Brave New World of Employment Law: What’s New in 2009 and What to Expect in the Year Ahead" at the 3rd Annual American Corporate Counsel Association (Iowa Chapter) Annual Seminar in Iowa City. This has become a marquee event for corporate counsel in Iowa, and I look forward to seeing many of you there.