Look out for these labor issues
here are only four
cases on the Supreme Court docket for this term relating to
labor laws. One involves the little-known Jones Act, which
affects labor relations in shipping ports. Another involves the
male coach of a girls’ basketball team who complained
about inequitable treatment and was punished.
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So, what are the new labor issues that
will be pestering employers in the new year? For starters,
speaking of overtime, employers can expect the almost
70-year-old Fair Labor Standards Act to become a favorite among
plaintiff employment lawyers. Lots of money can be made by
suing unsuspecting employers who have inadvertently violated
these complicated laws for determining hours worked, overtime,
and other pay issues.
The Bermuda Triangle will continue to
torture employers in 2005. That is what labor attorneys call
the interaction of the Family and Medical Leave Act, the
Americans with Disabilities Act, and the Workers’
Compensation laws.
Every employee who has a physical or
mental condition — and don’t they all — will
figure out a way to work less and less without losing his or
her job. Pretty soon, it will be impossible for employers to
decide whether an employee has quit, needs to be fired, needs
to be placed on leave of absence, or needs to have a bigger
office than the boss.
On that point, we have seen cases where
employees have claimed that their boss has made them physically
and mentally disabled. They either demand time to recover or
the ultimate accommodation: removal from the
“stress” caused by their bosses. Huh? I can think
of a few tough bosses I had over the years that I could have
tortured, had I been so inclined, under the Bermuda Triangle.
“Permanently disabled as a result of
working for a jerk.” Of course, I think this is
ridiculous, but there is a judge out there who will embrace
this theory. Stay tuned for Bermuda Triangle updates in this
column.
Privacy issues should gain some more
attention, but as I told one of our new lawyers the other day,
there are really no privacy laws of consequence in the private
workplace. Employers can search offices and lockers, and
employers can ask plenty of personal questions — provided
they do not cause problems under the civil rights laws relating
to sexual harassment and other discrimination claims.
The absence of privacy laws, however, may
not prevent certain judges from finding that under the common
law of a particular state, the employee had an expectation of
privacy. Watch for judges to expand employee rights in this
area.
Smoking is always a good issue. The
adoption of anti-smoking laws has created the unofficial,
compensated smoke break.
The next time you are downtown in a
metropolitan area, look outside any office building. You will
see plenty of smokers, all being paid for the time because,
under the Fair Labor Standards Act, breaks under 30 minutes
long must be compensated.
Finally, I see some issues arising
concerning sexual preference and sexual orientation. Same sex
marriages will continue to be championed in certain states.
More states will enact laws protecting employees with
non-mainstream sexual preferences, as well as transgender
employees.
Under certain laws protecting transgender
employees, it is immaterial that an employee is biologically a
man but maintains he is a woman. In other words, a person who
has decided to “be” a woman, regardless of a full
complement of male DNA and resulting equipment, may be a woman
under state employment law.
Keep reading this column for further
developments. Anyone interested in the decision in the Jones
Act case should check the Supreme Court web site daily
beginning immediately.
Frank Kollman is a partner in the law firm
of Kollman & Saucier, PA, in Baltimore, MD. He can be
reached by phone at (410) 727-4300 or fax (410) 727-4391. His
firm’s web site at www.kollmanlaw.com has articles, sample policies, news and
other information on employee/employer relations.
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