THE LITTLER TEN: Employment, Labor and Benefit Law Trends for Navigating the New Decade September 2010 AUTHORS Garry G. Mathiason Steven J. Friedman Michael F. McCabe Meredith C. Shoop Margaret Hart Edwards Shanthi V. Gaur Maureen E. McClain Ellen N. Sueda Philip L. Gordon Michael J. McGuire Daniel Velton Gavin S. Appleby Patricia A. Haim Jeffrey J. Moyle Mariana Villa da Costa Ellen M. Bronchetti Ronald J. Holland Marko J. Mrkonich Denise M. Visconti Eduardo F. Cuaderes, Jr. Kayvan Iradjpanah Kerry E. Notestine Paul D. Weiner Sue M. Douglas Gregory C. Keating Suellen Oswald Douglas A. Wickham Kevin M. Duddlesten Melissa B. Kurtzman Scott D. Rechtschaffen Katherine Dix Henry D. Lederman Jason R. Regas Katherine Cooper Franklin Chris Leh Ilyse W. Schuman The authors of this Littler Report would like to the thank the following individuals for their thoughts and insight into the describing the trends and developing the predictions contained in this Littler Report. Barrett Green John C. Kloosterman Nick Linn Gail A. Engstrom Allan G. King Marguerite S. Walsh Carole F. Wilder Reid Bowman, General Counsel ELT, Inc. Stuart N. Brotman, President Stuart N. Brotman Communications IMPORTANT NOTICE This publication is not a do-it-yourself guide to resolving employment disputes or handling employment litigation. Nonetheless, employers involved in ongoing disputes and litigation will find the information extremely useful in understanding the issues raised and their legal context. The Littler Report is not a substitute for experienced legal counsel and does not provide legal advice or attempt to address the numerous factual issues that inevitably arise in any employment-related dispute. Copyright © 2010 Littler Mendelson, P.C. All material contained within this publication is protected by copyright law and may not be reproduced without the express written consent of Littler Mendelson. THE LITTLER TEN: Employment, Labor and Benefit Law Trends for Navigating the New Decade Table of Contents SECTION / TOPIC PAGE INTRODUCTION 1 LITTLER ONE: The Digitization of Work Redefines Employment Law — From Virtual Employment, Cloud Computing, and Expanded Bandwidth to Fourth Generation Robots and Green Technology, Work and the Workplace Are Transforming the Application of Law 2 LITTLER TWO: Privacy Rights Vacillate in a World of Monitoring, Genetic Medicine, Social Networking, and Combating Terrorism 6 LITTLER THREE: The Brave New World of Employment Litigation — E-Discovery, Next Generation Class Actions, Privatization of Litigation Through ADR and Virtual Trials 9 LITTLER FOUR: Discrimination and Harassment Theories Morph to Protect Employees with Family Responsibilities, Secular World Views, and Victims of Workplace Bullying 18 LITTLER FIVE: Labor Organizing Intensifies Under the New NLRB 23 LITTLER SIX: No Man is an Island — U.S. Law Will Increasingly Adapt International Labor Standards to Maintain Global Competitiveness 27 LITTLER SEVEN: Corporate Ethics and Compliance Increasingly Become Survival Touchstones —Codes of Conduct for the Employer, Compliance Audits, the Supply Chain and Government and Private Enforcement 31 LITTLER EIGHT: A Large Permanent Contingent Workforce, a Growing Skill Shortage, High Structural Unemployment, and Undocumented Workers Will Force Legislative, Judicial and Regulatory Reform 34 LITTLER NINE: Employee Benefits Law Will Move to Center Stage as U.S. Employers Deliver Mandated Health Care Coverage, Dictate Wellness, Reform Executive Compensation, and Help the Boomers Retire 36 LITTLER TEN: The Corporate and Private Practice of Employment and Labor Law Will Change More During the Decade Than Has Occurred in a Century — Disruptive Technologies, Advanced Knowledge Management, Standardized Processes, New Value Models, and Ubiquitous Access to Digitized Information Will Lead the Transformation 40 ENDNOTES 46 APPENDIX A: The Littler Eleven in 2000 53 COPYRIGHT ©2010 LITTLER MENDELSON, P.C. i THE LITTLER TEN: Employment, Labor and Benefit Law Trends for Navigating the New Decade THE LITTLER TEN: Employment, Labor and Benefit Law Trends for Navigating the New Decade INTRODUCTION • Decoding the Complexity of Leaves and Benefits — From Leaves of Absence Rights and Unvested Stock Options to The second decade of the 21st Century promises to redefine HMO reviews and ERISA Confusion — The Litigation the way employment, benefit, and labor law are practiced. By Floodgates Are Opening 2020 Internet users worldwide will more than double to nearly 4 billion, processing speeds will increase 100 fold, and capacity will • The Decade of Employment Law Class Actions, Retaliation expand exponentially. Apart from changing the workplace forever, Claims and ADR global employment law information and new digital technology • will demand a new way of practicing law. Worldwide regulations, The “New” New Employment Law Thing — Identifying and statutes and judicial decisions will be immediately accessible and Preparing for the Unknown categorized. Attorneys will add value not by providing static reports • Increasing Workplace Safety Requirements — From Violence on what the law requires, but how the law applies to unique factual Prevention and Ergonomics Regulations to the Challenge of settings. Understanding trends and anticipating change will be Pseudoscience in the Workplace Safety Will Be a Growth essential. To help meet this challenge Littler offers ten employment Industry and labor law trends for the second decade. The first decade of the 21st century is now a part of history. These trends and predictions are an evolution of similar efforts However, the events and developments of the last decade, and that Littler first reported in 1990 divided into nine topics. A decade especially the end of the 20th century, directly shape what can be 1 later Littler presented the LITTLER ELEVEN (See Appendix A), expected as we chart the employment and labor law challenges of the eleven trends in employment law for the first decade of the new next decade. Certain challenges will become less significant as the millennium. The Littler Eleven in 2000 were: law becomes mature and the solutions well established. For example, case law and legislation have answered many of the important legal • The Cyber-Employment Law Revolution — The New Law of questions involved in at-will employment and traditional wrongful the Digital Workplace termination claims. Other trends were only in their infancy in the • Second Generation Harassment and Discrimination early 2000s and will blossom in the coming decade. Globalization Standards — Developing a New Workplace Etiquette and the digitization of work readily occupy this category. Thus, it is unwise, if not impossible, to separate the developments of the first • The Aging of the Workforce and the Rise of Age Consciousness decade from those of the coming decade in undertaking the task of in the Workplace — The Coming Age Discrimination decoding the future. Litigation Explosion For two years, Littler has been deciphering the hundreds of • Hiring, Retention and the Impact of the Skilled Labor cases and thousands of developments that disclose the employment Shortage — Litigating, Legislating and Engineering New law trends of the coming decade. This effort has resulted in ten trends Employment Relationships that comprise the LITTLER TEN. They evolved from a review of • The Expansion of Worker Privacy Rights over 30,000 employers’ experiences by our nearly 800 employment attorneys. Not surprisingly, the influence of technology has shaped • The Globalization of Employment Law Issues and many of our observations. From the growth of social networking Standards — From Immigration Legislation and NAFTA over the Internet, explosion of technological advances that allow to Multinational Workplace Conduct Policies, Global employees to work outside of the confines of their offices, to an Considerations Are Redefining Employment Law increase in terrorism globally, as well as other society-shaping developments are directing the future course of employment and • Challenging HR Competencies — Investigations, Training labor law. Political change, demographics, cultural evolution, and and Compliance Requirements Become the New Litigation dozens of other influences all play critical roles in the new law of Battlegrounds the workplace. COPYRIGHT ©2010 LITTLER MENDELSON, P.C. 1 THE LITTLER TEN: Employment, Labor and Benefit Law Trends for Navigating the New Decade The Littler Ten are not distinct trends unconnected to each broadband service throughout the United States. 4 In this way, the other. On the contrary, the trends interrelate and overlap. An excel- ARRA is designed not only to help the government sector (through lent example is the pervasive effect of technology on the other trends. enhanced public safety and homeland security) but also to benefit Most importantly, the Littler Ten is not a theoretical presenta- the private sector through job creation, worker training, and general tion. Each trend is supported by concrete examples. Moreover, economic growth in those rural communities that are held back 5 each developing trend is related to practical recommendations on by limited or no access to broadband. Legislation like the ARRA how employers can prepare for the predicted changes. Imagine how reinforces the notion that utilizing the potential of broadband will targeted your legal and human resource department could become be a top priority of the federal government. In fact, countries like if they had a “blueprint” for the future of employment