Employment Law: What to Expect in 2012

Employment law is a dynamic field with new legislation, new regulations, and new court decisions interpreting the laws. Here are several topics that should garner attention in 2012:
1.      Retaliation. The United States Supreme Court issued two decisions last year that are likely to increase the number of retaliation lawsuits because they expand the scope of protection. In Thompson v. North American Stainless, an employee filed an Equal Employment Opportunity Commission (EEOC) Charge of Discrimination. Shortly thereafter, her employer terminated her fiancĂ©e. The employee alleged retaliation and the Supreme Court agreed because of the close relationship between the employee who engaged in the protected activity (filed the Charge of Discrimination) and the terminated employee. The Supreme Court left open the issue of how close of a relationship will qualify for protection.
In Gasten v. Saint Gobain Performance Plastics Corp., the Supreme Court determined that oral complaints were afforded protection from retaliation under the Fair Labor Standards Act.
2.      Whistleblower lawsuits. The enactment of the Dodd-Frank Wall Street Reform Act creates causes of action for employees of businesses that offer or provide consumer financial products or services primarily for personal, family or household purposes, including banks, loan brokers, check-cashing companies, real estate settlement companies, and financial advisors. The Securities Exchange Commission’s (SEC) whistleblower regulations went into effect on August 12, 2011.
3.      The Genetic Information Nondiscrimination Act (GINA). GINA was signed into law in 2008 and the EEOC issued final regulations in November 2010. The law prohibits discrimination in employment and in group health plan coverage based on genetic information, which includes such things as family medical history. The relatively new law has not generated much litigation and generated only 201 charges of discrimination with the EEOC, but the number of lawsuits and charges of discrimination is sure to rise.
4.      Pharmaceutical Sales Representatives. The Supreme Court agreed to determine the issue of whether pharmaceutical sales representatives are exempt from the Fair Labor Standards Act. Federal courts have come down on both sides of the issue so the Supreme Court’s decision will provide needed clarification.
5.      Increased Agency Actions. The EEOC and Department of Labor (DOL) were busy last year. The EEOC experienced a record number of charges filed (99,947) in 2011 and increased the number of lawsuits it filed. The DOL increased its focus on enforcement actions related to worker safety and wage and hour issues.
The number of SEC enforcement actions increased slightly in 2011. Significantly, settlements entered into by the SEC shifted in focus with a higher number of settlements with companies as opposed to individuals.
Both the SEC and Department of Justice (DOJ) recently reiterated their commitment to aggressively enforcing the Foreign Corrupt Practices Act (FCPA). The FCPA generally makes it unlawful to make payments of anything of value to foreign government officials to obtain business. FCPA penalties may result in fines of up to $2 million for companies and $250,000 for individuals per violation and five years’ imprisonment for violations of the anti-bribery provisions, and fines of up to $25 million for companies and $5 million for individuals and 20 years’ imprisonment for willful violations of the Books and Records requirements of the FCPA.
Along those lines, the U.K. Bribery Act took effect on July 1, 2011, providing penalties against corporations who fail to prevent bribery. The Act applies to non-U.K. companies conducting business in the U.K. The penalties include a maximum 10 years’ imprisonment and an unlimited fine.
6.      ADA Claims. The Americans with Disabilities Amendment Act went into effect in January 2009. This Act significantly expands the definition of “disability” that results in broader coverage. Since the Act became effective, the number of ADA claims filed with the EEOC have increased by 17%.

Contact: Jon Secrest

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