Corporate Counsel magazine’s overview of hot employment law issues for ’05
law.com provides this article from Corporate Counsel:“Employment Law Forecast: Stormy Weather” (by Ilan Mochari)
The article may be limited to subscribers only, so I’ll give a short summary. It is a nice overview of developments sure to keep us all busy, including:
“Employment class actions are on the upswing,” most notably Dukes v. Wal-Mart Stores, Inc. (discussed in this Blawg here and here), but also many other high-profile class actions.
Quoted is Emory University labor and employment law professor Charles Shanor: “I’d tell [GCs at large companies] to watch Wal-Mart, because it will have a huge impact on your flexibility in decentralizing employment decision-making.” Also noted is the difficult issue of “subjectivity” raised in the Wal-Mart case.
Another key point of the article is that “Class actions concerning overtime pay could prove just as troublesome,” particularly given the changes to the Fair Labor Standards Act regulations effective August 23, 2004. Attorney Linda Doyle of McDermott Will & Emery’s Chicago office is quoted: “This is currently the largest source of litigation in the white-collar business world.”
Don’t know if that last statement is objectively verifiable, but it certainly is a major problem area.
Next, the article hits the awaited Supreme Court decision on disparate impact age discrimination claims in Smith v. City of Jackson, Mississippi.
Sound advice on this issue from a corporate counsel:
“I’ve always acted under the assumption that avoiding all disparate impact in age is reasonable,”says William Johnson, employment counsel for Quest Diagnostics Inc. in Teterboro, N.J. “Let’s say I was looking at a reduction in workforce. We would do an analysis to determine the impact on various protected classes, and we’d look at that to see that our practices were unbiased and objective — and we’d do it with regard to age, too.”
Also discussed is the IBM case, now in the 2nd U.S. Circuit Court of Appeals, challenging the company’s switch from a traditional pension plan to a cash-balance plan.
In September 2004 the company partially settled for $300 million, but the parties agreed IBM could appeal. “We won’t know until the appeals have run whether it will be upheld,” says Gary Ford of the Groom Law Group, a Washington, D.C., firm specializing in employee benefits. “But in the wake of IBM’s massive settlement, other companies with pension plans are wondering whether they, too, could pay a steep price” for similar pension changes.
Finally, the article mentions: “sweeping changes to tax laws overseeing deferred compensation plans” in the American Jobs Creation Act of 2004; the Sarbanes-Oxley Act, notably its whistlblower provision, Section 806; and the status of returning military personnel or reservists who wish to resume the jobs they left to serve in the armed forces, which is governed by federal law (USERRA) and sometimes state law as well.
