Hot Trends to Watch Affecting the HR Arena

Author: David B. Weisenfeld, XpertHR Legal Editor

Staying abreast of emerging employment trends is critical for employers that wish to reduce their exposure risks.

Sexual harassment claims skyrocketed following Anita Hill's charges against Justice Clarence Thomas during his 1991 Supreme Court confirmation hearings. This led to a flurry of activity with companies updating their harassment policies. Popular Hollywood movies such as "North Country" and "Disclosure" further spotlighted the issue.

But a host of other employment law trends are now garnering increased attention. These include the:

  • Fair Credit Reporting Act (including criminal background checks);
  • Workplace Bullying (with 21 states having introduced legislation);
  • Religious Discrimination;
  • Retaliation;
  • Pregnancy Discrimination (with almost 6,000 claims filed with the EEOC in 2011); and
  • The NLRB's increased focus on social media.

Top attorneys from Ogletree Deakins' Morristown, NJ office raised these issues and more at a lively seminar on Sept. 13 in Florham Park, NJ. Some other notable cautionary notes from the conference:

  • The Supreme Court's refusal last year to certify the class of 1.5-million women in the gender discrimination case of Dukes v. Wal-Mart is "not necessarily a death-knell for class actions," according to Sharon Margello.
  • "The National Labor Relations Act applies to all nonsupervisory employees, not just unionized employees," noted Brian Lee. This is a significant factor with the Board playing a more active role in bringing unfair labor practice charges against employers.
  • The EEOC is concerned with blanket exclusions of job applicants with criminal records. This means employers should weigh factors such as the severity of the crime and the passage of time since the offense.
  • "Sexual harassment is not just for women any more," said Theresa Donohue Egler, who pointed out that more than 16 percent of total harassment claims were filed by men last year according to EEOC statistics.

XpertHR will continue to monitor these trends and others through upcoming podcasts, including one featuring a recent NLRB ruling that is attracting a good deal of debate. See NLRB Rules on Prohibiting Discussion of Internal Investigations.

Additional Resources

NLRB Issues Guidance on Social Media Policies

How to Prevent Pregnancy Discrimination

Bullying and Harassment - Supervisor Briefing

EEOC Offers New Guidance on Arrest and Conviction Records

Employees Face High Hurdles in Class Actions Alleging Sex Discrimination