January 6, 2022
For those old enough to remember Johnny Carson and his character Carnac the Magnificent, every year I inherit Carnac’s super-powers to predict the upcoming year’s likely hot topic employment issues.
Last year my crystal ball was spot-on, predicting that the Occupational Safety and Health Administration (“OSHA”) would enforce stricter COVID rules, there would be a new “normal” with regard to flexible work policies, mandatory vaccinations would be considered, and pay equity litigation would be on the rise. Hopefully, this year my predictions will be as prescient.
In no particular order, here are my prognostications.
Vaccine Mandates. This topic once again makes the list. On November 4, 2021, OSHA mandated that employees of companies with one hundred (100) or more employees be vaccinated or provide weekly negative COVID-19 test results. There are numerous lawsuits challenging this requirement and President Biden has chosen not to enforce it until the Court decides. The Supreme Court has expedited this matter and will hear oral argument on January 7, 2022. Prediction? The mandate will be upheld.
Employee Relations. This is an easy one as it has already begun. It is a “seller’s market” as the demand for labor is high. To retain or recruit top talent, employers will be more flexible in 2022, continuing to allow more remote work and flexible work weeks. But that is not all that will be done in the upcoming year to retain employees. Millennials and Gen Z employees are highly influenced by social media. To attract them, employers will work to improve their social media presence, and will place more emphasis on company culture and social causes.
Pirating Employees and Restrictive Covenants. With the demand for labor high, inevitably there will be more wholesale moves of departments to competitors and not just one-off hires. What is the easiest way to increase profits? Hire your competitors’ best employees and staff. “Pirating” is an old claim, see United Board & Carton Corp. v. Britting, 63 N.J. Super. 517 (Ch. Div. 1959), and best described by New Jersey Supreme Court Justice Morris Pashman while still on the trial court bench in Wear-Ever Aluminum, Inc. v. Townecraft Industries, Inc., 75 N.J. Super. 135 (Ch. Div. 1962). While a restrictive covenant is unnecessary for such a claim, non-compete litigation often goes hand-in-hand with a cause of action for pirating. This Firm’s Employment Law and Healthcare Litigation Departments probably handle more non-compete cases throughout New Jersey than any other law firm in the State. There was a tremendous uptick in this litigation last year and we expect it to continue in 2022.
Age Discrimination. Age discrimination claims have remained relatively constant over the past few years. According to the United States Equal Employment Opportunity Commission (“EEOC”), age discrimination charges make up approximately 22% of all workplace discrimination claims. As Baby Boomers reach the end of their work lives and Gen X employees are now covered by the Age Discrimination in Employment Act (“ADEA”) (covering those 40 years of age and older), this trend will continue for the foreseeable future.
Employee Misclassification. Employee misclassification will be a hot topic in 2022. A bill, effective January 1, 2022, streamlines the identification of employee misclassification. It makes misclassification of employees for purposes of evading payment of insurance premiums a violation of the New Jersey Insurance Fraud Prevention Act (“NJIFPA”), N.J.S.A. 17:33A-3, and imposes civil and potentially criminal penalties.
Mental Health. Discussing one’s mental health is no longer taboo. We have seen it come to the forefront in professional tennis and football, and in recent television commercials. Expect to see more discrimination claims involving a plaintiff’s mental health or at least employers struggling with trying to determine whether an employee has a legitimate claim or is a malingerer.
The Fearless Forecaster is comfortable with the above predictions, but employment law is constantly evolving. Now is a great time for employers to review their policies to best insulate themselves for whatever the new year may bring.