Change employers can believe in

Most management attorneys will tell you that 2009 will see a big increase in employment litigation and labor-union gains. On the employment front (that is, not related to unions), the combination of the recession and Democratic Party gains in Congress (and, of course, the White House) should drive employee lawsuits up.

Why? The recession means more layoffs and fewer new hires. This means more disgruntled employees (or would-be employees). The bedrock principle of this blog is that disgruntled employees are more likely to sue than are gruntled employees. While most employees understand that layoffs are usually economics driven, some take it more personally and lawyer up.

As for the Democratic successes in the election, both the Obama campaign/transition and the Democratic Congressional leadership have voiced there support for new, broader statutes that will help employees at the expense of employers. In the coming weeks, we'll take a closer look at these initiatives. But for now, take a gander at the Obama transition webpage on the economy, which talks about expanding the Family and Medical Leave Act (FMLA), raising the minimum wage, spearheading paid family leave, and targeting so-called "caregiver discrimination." Also, the new administration is expected to take a tougher enforcement stance than the outgoing one. (And remember, the outgoing conservative administration just brought you the ADA Amendments Act.)

As for the labor side (involving unions), the transition site trumpets the cynically named Employee Free Choice Act, which would do away with the protection from initimidation afforded by secret ballots for employees in union elections. The site also talks about plans to eliminate "supervisor" status for hundreds of thousands of employees to artificially increase the size of the unionized workforce. The new administration will also seek to eliminate getting rid of an employer's right to replace striking workers.

Some observers have argued that these pro-Labor moves could, when combined with an already-down economy, produce similar results to when the Supreme Court upheld the National Labor Relations Act in 1937.

With this anti-employer agenda about to fall into place, combined with a lousy economy, employers should prepare now for a serious increase in employment litigation in 2009.

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Here are a couple of excellent, pre-election posts about the likely workplace changes we will see this year as a result of the election: Michael Fox's always-excellent Jottings by an Employer's Lawyer and John Phillips's thorough The Word on Employment Law.