Looking back over the last twelve months, I can say with confidence that employee rights to complain and be protected – and to sue when their rights are trampled – grew substantially stronger in 2011.
1. The laws protecting employees who have complained to their HR departments got stronger. More employees than ever are coming forward to report discrimination and harassment, placing tremendous pressure on HR chiefs to act. Judges and juries are more harshly punishing employers, with ever-larger verdicts, when the company fails to act in the face of a report.
2. The law of retaliation expanded, and continues to grow. In the past, it was unclear to what extent a former employee can sue the old employer for interfering with subsequent jobs or job searches. For example, while it is clear a bad reference can be retaliation, it hasn’t been clear whether an employer who fails to answer reference inquiries can be held liable. Courts are giving real teeth to the laws forbidding retaliation, and recognizing more subtle post-employment conduct as intentional efforts to lash out at former employees who brought claims. The courts are even extending protection to those who are simply associated with someone who complained (such as a spouse who might be employed at the same or related companies).
3. Wage and hour laws are being more strictly enforced. Courts are imposing harsher punishments on employers who cheat employees of overtime pay, or who knowingly allow employees to work off the clock. Many workers, especially those less skilled, will work off the clock without complaining, solely out of a (well-justified) fear that complaining will get them fired.
4. The rights of employees with personal or family medical issues are growing stronger. This includes employees who are disabled, who are temporarily sidelined by on-the-job injuries, or who need time off to care for ailing family members. The U.S. Congress’ major rewrite of the Americans with Disabilities Act has led many more employees with physical or mental limitations to demand equal access to (and treatment in) the workplace. And it’s working.
5. Courts are more often recognizing that online activities of employees are no business of the employer. Employee emails of a personal nature are not automatically deemed the property of the employer, even if created, sent and/or received on corporate systems. Facebook profiles are not automatically fair game for employers “just because.” A great deal of what employees post about themselves is in fact unlawful for employers to consider in hiring, firing or other employment decisions.
In sum, the laws governing employee rights grew stronger in 2011. The battle for a fair workplace is far from over, but that light at the end of the tunnel might just be a light (and not a train).
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