Litigation Whirlwind Changing Face of Employment Law

As per a recent post by Sue Reisinger at Law.com, labor litigation storm clouds are looming, and some are looking pretty threatening.  In 2010, a record number of employees sued their employers, and those wage and hour lawsuits, added to the rising number of worker discrimination complaints, have resulted in particularly stormy weather for general counsel.   Why would that bother them?  It seems that “the employment litigation is devouring the lion’s share of corporate resources”.   

In addition, the plaintiff’s bar is “pursuing novel theories”.  And the U.S. Supreme Court is “recognizing some of them”.   

For example, the high court took up a discrimination case involving retaliation against a third party.  It ruled to protect the third party, as well as the person bringing the original claim.  In this particular case, a man who worked at the same company against whom his fiancé filed a discrimination complaint was fired a scant few weeks after the filing.  There were already plenty of retaliation cases before, says the post, and this ruling will only increase the influx of such cases.  

Adding to the high pressure scenario, many employees are suing now as they find themselves caught between a rock and a hard place. With economic situations which leave many workers without a job, many may opt to sue because “they have nothing to lose”. These newly unemployed workforces are reacting to extensive layoffs, company closings and what Reisinger calls “general job insecurity”.  

In addition, attorneys are complaining that what used to be “small, resolvable” workplace claims are being turned into full-scale investigations by the Obama administration as they flex their muscles in discrimination and wage and hour claims.  

Further augmenting the corporate burdens, Congress has widened the already far-reaching expanse of its Americans with Disabilities Act.   All of these changes mean that general counsel is indeed scrambling to keep control of its legal spend.

This perfect storm that’s brewing could signal a transformation that clears the air for all, as the Supreme Court, in a rarity, is considering three employment cases for review.   The Washington Post “On Politics” blog said it all: “The justices determine which cases to take. They never explain the reason for their choices.”  But when they take the cases, they often pave the way for a new era–in this case, for workplace litigation.  

To learn more about how justices select cases, read: http://www.washingtonpost.com/wp-srv/national/longterm/supcourt/history/choosing.htm

To read more on the employment storm that’s brewing, go here: http://www.law.com/jsp/cc/PubArticleCC.jsp?id=1202487374960&Labor_Pains  

-EM

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