Margaret Mevers, partner at Lydecker Diaz in Miami. ()
For employers, keeping up with the rapidly changing issues that could land them in court can be akin to a game of Whac-A-Mole.
Attorneys who practice in the labor and employment field expect 2014 to be a year where issues as varied as expanded pregnancy rights, social media and workplace bullying will be on the front burner.
Last year ended with a lesson on free speech when “Duck Dynasty” star Phil Robertson was suspended for homophobic and racist remarks to GQ magazine. Numerous employment attorneys reminded people there is no right to free speech in a private workplace.
The government may not be able to throw a worker in jail for bigoted speech, but that doesn’t mean an employer can’t fire the same worker for acceptable conduct in the workplace—and Robertson was an employee of A&E cable network.
“I’ve said it before and I’ll say it again, there is no free speech in corporate America,” Fort Lauderdale attorney Donna Ballman, who represents workers, wrote in an article on AOLjobs.com.
Attorneys contacted by the Daily Business Review had plenty of consensus on hot issues in 2014 and which ones will make employers take notice.
Working women who face discrimination because of pregnancy will most likely soon have a new avenue to seek redress: Florida state courts. State district courts are in conflict on whether the state civil rights law protects pregnant workers, and the issue is now before the Florida Supreme Court, and legislation to amend the Florida Civil Rights Act to make it clear that pregnancy is protected is expected to pass, attorneys said.
The change in law would be significant because state trial courts are considered a friendlier venue for plaintiffs than federal courts, where worker lawsuits often die on summary judgment motions.
“There is significantly more exposure if this becomes part of Florida state law,” said Miami attorney Larry Perlman, an associate in Foley & Lardner’s labor and employment practice.
Pregnancy issues in employment lawsuits are booming, attorneys said.
“I will tell you out of the all of my pending discrimination claims, the majority of them have a pregnancy element to them,” said attorney Margaret Mevers, a partner at Lydecker Diaz in Miami who specializes in labor and employment law.
A lot is also being said about workplace anti-bullying bills.
While plaintiffs attorneys like Ballman say such legislation is a few years off, the issue is very much on the minds of management-side attorneys.
Proponents of anti-bullying laws, such as New York Healthy Workplace Advocates, say workplace bullying is four times more prevalent than sexual harassment. Bullied employees have no recourse but to quit their jobs, which is not an option for many in the current job environment.
“What happened is the economy had a downturn, and the bullies came out in full force,” Ballman said. “Now that the economy is improving, many good companies are realizing you can’t keep good people if you let bullies act like that.”
But lawyers who represent companies say a workplace anti-bullying law would wreak havoc because the behavior is so subjective.
“If this law would pass, it would open the floodgates to this frivolous claim,” Mevers said.
Attorney Suzanne Bogdan with the employment law firm Fisher & Phillips in Fort Lauderdale said employers would be wise to adopt anti-bullying policies. She noted 25 states have tried to pass legislation on the issue.
“We recommend a separate anti-bullying policy,” she said. “You need to police the workforce not just for things such as sexual harassment and age harassment but for unkind behavior.”
The attorneys also agreed that employers will have to change their policies on marijuana use, which would turn a zero-tolerance policy on its head. A medical marijuana initiative has been proposed for the Florida ballot in the fall.
“From an employment law point of view, there is a ton of uncertainty here,” Perlman said. “Suddenly there is this dilemma.”
He said since marijuana stays in the bloodstream far longer than alcohol, it’s impossible to say is someone on the job is stoned. And legalization calls into question whether there is a cause of action against an employee with a marijuana prescription for conditions such as glaucoma.
“Now you’re in that gray zone that in some circumstances it will be tough to navigate,” he said.
In Colorado, where recreational marijuana sales became legal Jan. 1 for adult residents, Ballman said employees already have been fired for having the drug in their bloodstream. Several states have passed legislation protecting marijuana smokers, especially for medical purposes.
Noncompete agreements also may also run their course.
Ballman said there is a movement in Massachusetts to ban the use of restrictive covenants limiting future job options.
A study found released this month by the Harvard Business Review suggests workers are less motivated and perform worse when subject to terms that limit their job mobility.
“You are going to start seeing a backlash against noncompetes, especially in the tech sector,” Ballman said. “You got a lot of people who are very entrepreneurial, and you are going to see states like Florida which are wondering why the tech sector isn’t over here.”
Attorneys differed on some issues in what they thought would be prominent in 2014. Some said they expect discrimination lawsuits from gay and transgender workers to increase. Others say protection will expand for the use of social media.
Mevers said a state Senate bill would prohibit an employer from requesting or requiring access to a social media account of an employee or applicant. It also would prohibit an employer from retaliating against an employee or applicant who refuses access.
“It provides a cause of action, but it also has an attorney fees provision,” she said.
Attorney Mark Emanuele, also a partner at Lydecker Diaz in Miami, said the U.S. Equal Employment Opportunity Commission will ramp up efforts to prohibit discrimination against job applicants with poor credit or a bankruptcy filing, believing the practice disproportionately affects minorities.
He said his employer clients sometimes insist they have a right to know if an applicant has a bad credit history.
“If someone is going to be put in charge of funds or have access to accounts, some employers have legitimate concerns about that person’s abilities to handle fiances and what their credit score might be,” Emanuele said.