Subjects of Interest for 2005

Michael Patrick O’Brien
December 13, 2004

The National Society for Human Resource Management (SHRM) is reporting that Social Security reform, income tax reform, and pension matters will be the Bush Administration’s main workplace focus during the next four years. Moreover, Bush’s Department of Labor (DOL) has announced a deadline of March 2005 for possible regulatory reforms to the Family and Medical Leave Act (FMLA). Specifically, DOL is possibly looking to clarify both the definition of serious health condition and how intermittent leave might be used. However, given the political outcry that resulted from DOL’s reform last August of the Fair Labor Standards Act, DOL will most likely move cautiously.

Branding Can Be Painful

Got a spare $50 million that you have no plans for using? Then go ahead, ignore the employment laws. That might be the lesson for a national clothing retailer, that recently paid that staggering amount to settle discrimination claims. Specifically, the Equal Employment Opportunity Commission (EEOC) claimed the employer routinely excluded women and minorities from hiring and management. Most critically, it claimed the employer used a restrictive public relations and marketing image that furthered this discriminatory outcome. The plaintiff’s employment lawyers are hailing the case as the “new look” of employment bias claims, focusing on how a company visually brands itself as alleged proof of job discrimination. Whether this alleged “new look” will be accepted by the courts, however, is not at all clear. In the past, courts have rejected the advertising-discrimination link, most famously in the case where female brewery employees alleged gender bias in part due to the employer’s use of a “Swedish Bikini Team” ad campaign. For now, it is safe to say an employer should be sensitive to market and brand itself in a way that cannot be used against it later in a court of law.

Termination and LTD Leave

Some legal commentators are calling on employers to rethink policies that automatically terminate the employment of disabled employees who have been on long term disability leave (LTD) for a certain period of time. The EEOC recently filed a lawsuit in federal court alleging that one such policy requiring termination after one year violated the Americans With Disabilities Act (ADA). The ADA requires that each disability matter be considered on a case-by-case basis with the employer and employee engaging in an interactive process to determine what, if any reasonable accommodations can be provided to the employer. Thus, the EEOC shuns the notion of unilateral and automatic action rules because they fail to consider the particular circumstances of a given case. Given the EEOC’s apparent intent to make a federal case out of this issue, employers should remember to consider each situation of employment disability on its own set of unique facts and make a decision that is justified by those facts, rather than unilateral and automatic. Your policies also should be drafted to show that you would engage in this case-by-case analysis.

Workplace Trends

National SHRM’s 2005 Workplace Forecast notes the following top ten trends: 1) the rise in health care costs; 2) the continued focus on domestic safety and security; 3) the increased use of technology to communicate with employees; 4) the growing complexity of legal compliance; 5) the ongoing use of technology to perform transactional HR functions; 6) the continued focus on global security; 7) the growing need to prepare for the next wave of retirement and labor shortage; 8) the increased use and development of e-learning; 9) the problem of exporting American jobs to developing countries; and 10) the changing definition of family.

The detailed analysis of legal issues related to these trends includes increased concerns about worker privacy, increased litigation involving alleged age and religious discrimination, increased lawsuits about working conditions, the greater role of state laws in regulating the workplace, and the weakening of affirmative action laws.

This material is excerpted from a newsletter written by Michael Patrick O’Brien, an employment attorney with the Utah law firm of Jones Waldo Holbrook & McDonough P.C. O’Brien is also Utah State and Salt Lake SHRM legal director. Contact O’Brien at 801-534-7315 or mobrien@joneswaldo.com.