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At the end of the calendar year, it is worth pausing a moment to reflect on how far we’ve come over the last 365 days in the world of labor and employment law. As Ferris Bueller so famously quipped, “Life moves pretty fast. If you don’t stop and look around once in a while, you could miss it.” This couldn’t be more true for your compliance efforts in 2016. With that in mind, the following are my top 5 labor and employment law developments in 2016.

  1. The Board Relents on Social Media

Many employers are now aware that the NLRB has exercised a strong interest in social media policies in the workplace and adverse employment decisions based on social media activity. The most significant decision addressing these issues this year came from the Board’s Chipotle Services, LLC decision on August 18, 2016. While employers have long been frustrated with the Board’s take on social media policies, the Chipotle Services, LLC decision provides an example of the Board, affirming the Administrative Law Judge, approving some common policies, including those addressing harassing or discriminatory statements. The Board also reversed the ALJ’s decision and found that Chipotle had not unlawfully asked an employee to remove a series of Tweets that constituted “protected” activity but not “concerted” activity.

  1. Defend Trade Secrets Act

Federal law finally found its way to trade secret protection in 2016 with the passage of the Defend Trade Secrets Act. Although most everyone was already subject to uniform trade secret restrictions through state-based laws, the DTSA provides additional protections. As we discussed early this year here, the DTSA sets some unique provisions that are worth studying (exemplary damages anyone?) if trade secrets are an issue in your workplace.

  1. Wisconsin Sees Another Significant Restrictive Covenant Case

I often tell anyone willing to listen audiences that almost like clockwork there is a new decision in the world of restrictive covenants (i.e. non-compete and non-solicitation agreements) that should cause everyone to audit these contracts in their workplace. This year was no different as the Wisconsin Court of Appeals gave us its opinion in Manitowoc Company, Inc. v. Lanning. The Lanning decision cautions employers to examine their non-solicitation agreements to ensure that the restrictions are properly limited to competitive solicitation. If your restrictive covenant agreement hasn’t been reviewed recently, you of course may want to include talking to a lawyer as part of your New Year’s resolution.

  1. LGBT Status Recognized as a Protected Class Under Federal Law

Although Wisconsin recognizes sexual orientation as a protected class under the Wisconsin Fair Employment Act, federal courts raised the profile of similar protections under Title VII of the Civil Rights Act of 1964 with two cases in 2016. Although a final decision has yet to be released, the Seventh Circuit strongly signaled at the November 30, 2016 oral argument that it is ready to recognize LGBT status as a protected class status under Title VII in the case of Hivley v. Ivy Tech Community College. A federal district court judge in Pennsylvania came to this conclusion in the November 4, 2016 decision in EEOC v. Scott Medical Health Center, P.C. What does this mean for Wisconsin employers? Increased damages for a successful plaintiff are likely going to be here soon as Title VII allows individuals to recover compensatory and punitive damages, which are not available under the Wisconsin Fair Employment Act.

  1. Federal Texas Judge Halts New DOL Overtime Regulations

Undoubtedly, the biggest news story in 2016 for employment law practitioners has been the most recent one. For much of the year, employers were preparing for the salary threshold to substantially increase on December 1, 2016, making many formerly exempt employees non-exempt. Currently, the 5th Circuit has granted an expedited appeal. Moreover, the AFL-CIO has moved to join the case to help assure that the lawsuit will not going away with the change in POTUS on January 20, 2017. Although still unresolved, this has been the biggest development in 2016.

Happy holidays and best wishes in 2017 to all of our blog readers!

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