September 08, 2014
As I am writing this, the President is making it illegal for federal contractors to discriminate against lesbians, gays, bisexuals, and transsexuals. Congress, on the other hand, has not been willing to extend the anti discrimination laws to those individuals. Many states, however, have already enacted protections, including Maryland. This seems to be a corollary of the trend toward permitting same-sex marriages. There is still plenty of interpretation to be done under these laws, especially in the area of gender identification. The President’s Executive Order provides for some sort of “religious” exemption, but that exemption is short on explanation
We seem to be having an explosion of drug relaxation laws, and an increase in the number of states permitting medical marijuana. As recreational drugs become decriminalized, or in the case of medical marijuana – a legitimate form of medical treatment -- this will create more workplace problems. If an employee has a prescription for medical marijuana, and state law does not specifically permit the employer to differentiate between medical marijuana and other prescriptions, this could lead to impaired employees being discharge proof. This is why in some jurisdictions the medical marijuana law specifically states that employers do not have to allow marijuana use just because a doctor prescribes it.
Wage and hour cases will continue to proliferate. In fact, earlier this year there was a move afoot to increase the salary requirement for overtime exemption. The number of wage and hour lawsuits is increasing, and in many cases, the employer has technically violated the wage and hour laws. While there may not be too much done to change the wage and hour laws, there will be more case law interpreting the exemptions. Another trend to expect is the increase in allowable absenteeism. It used to be that one of the essential functions of the job of showing up; some legislative orders would allow employees to show up whenever they wanted to, especially if they had a reason sounded reasonable to the legislator.
The biggest trend I see in 2015 is the National Labor Relations Board gutting civility and loyalty rules adopted by employers. Under the guise of protecting the right of employees to discuss wages, hours, and working conditions, the Board has held civility rules illegal and ordered employees reinstated for making statements that, in the past, would generally have resulted in discharge. The Board recently found that a disparaging remark an employee made about the boss, employing the “f” word for emphasis, was protected activity because he was talking about working conditions. The
Board is also trying to take over regulating what employers can do about employee use of social media, such as Twitter and Facebook.