Excerpted from North Carolina Employment Law Letter, written by attorneys at the law firm Womble Carlyle Sandridge & Rice

One of the benefits of being employment lawyers who represent clients of all shapes and sizes is that we can quickly identify trends that are becoming widespread. Based on what we have heard recently from our clients and what the courts and administrative agencies are focused on, here's what we see as the latest trends.

FMLA Continues to Perplex

Not a day goes by that we don't get a call from a client scratching his head over how the Family and Medical Leave Act (FMLA) applies to one of his employees. What's a very simple concept - an eligible employee is entitled to 12 weeks of unpaid leave a year for a serious health condition of her own or of a family member - has become a regulatory Rubik's Cube.

For every situation that's relatively easy to handle, like leave for pregnancy, there's a much more difficult one to be grappled with, like intermittent leave for migraine headaches.

Things get even more complicated when you try to factor in how other statutes like the Americans with Disabilities Act and the Workers' Compensation Act might apply. Add to that the need to consistently apply your internal policies and short-term and long-term disability programs, and you can see how FMLA compliance becomes a series of questions without a lot of good answers.

At one point, there was a movement afoot within the U.S. Department of Labor to issue revised FMLA regulations. That effort seems to have stalled out at this point. Until the regs are clarified and streamlined, we expect to keep getting calls from clients wondering how the FMLA might apply in certain cases.

More Scrutiny for Noncompetes

More and more courts throughout the country are issuing decisions that put covenants not to compete through a fine-tooth comb. Noncompetes always have had to be reasonable in the length of time and the territory they cover.

What we're seeing now are more challenges focusing on the scope of prohibited activities as well. Courts are insisting that covenants be tailored to the individual employee's circumstances and focus on his actual duties and the employer's realistic need for protection from competition by him.

For example, a court may decide that an employee can't be prohibited from competing altogether but can be barred from competing in the same type of job he held with his former employer.

That trend means you must resist the temptation to be greedy and seek broader protection than necessary. As a result, you won't be able to rely on a "one-size-fits-all" agreement; instead, you'll have to tailor your noncompetes to fit the employee involved.

The challenge of preparing an enforceable noncompete agreement has become even more complex for employers with workers in different states. California, for instance, doesn't allow covenants not to compete in the employment setting. Likewise, a number of states have become increasingly hostile to noncompetes and will apply their own law even if the contract says it's to be governed by the law of some other state.

But while noncompetes are looked at suspiciously, we also have noticed that the courts are more willing to enforce nonsolicitation agreements. That's because they're seen as more specifically tailored to protect a company's actual business interests. We think that trend will continue in the future, so you should have your legal counsel look at the provisions you're using in your agreements.

National Origin Claims - Coming and Going

It's no secret that there has been a steady increase in the Latino population. Additionally, people from all over the world are coming here. That influx of diversity can create challenges for employers.

On the one hand, you must adapt your policies and practices to recognize the different languages, cultures, and religions in your workplace. How to effectively communicate and implement your policies and practices becomes a new challenge.

On the other hand, members of the traditional workforce who feel they're being displaced by new workers can become resentful. We have seen that trend illustrated by "reverse" national origin discrimination charges filed with the Equal Employment Opportunity Commission.

In other words, employees have claimed their employer provided advantages to workers who weren't native-born. The trend seems particularly pronounced in industries where Latino workers have become more prevalent.

We believe you'll see more claims of national origin discrimination as workplace diversity increases. Consequently, HR managers will face unique challenges and opportunities to create and manage diverse workforces.

Talking about my Generation

The first of the baby boom generation has begun turning 60. With a group that large, there are bound to be effects in the workplace. Here are some of the trends we see:

• An increase in age discrimination claims. All the baby boomers are now in the protected age category. As a result, that white male worker who may not have had many statutory claims in the past now can try to prove that age had something to do with his being fired, getting demoted, or not receiving a promotion. We also expect hiring claims based on age to rise as older employees who have retired or been laid off try to find other work.
• Increased competition for skilled workers. As the baby boomers begin to move on to pursue other interests, there will be a shortage of skilled workers for employers to fight over. That means you'll have to decide how to attract new workers and retain them.
• Continued rise in benefit costs. As the workforce continues to age, we can reasonably expect the cost of obtaining benefits to increase at an accelerated rate. Companies that succeed in controlling those costs will have a competitive advantage.

What trends do you see?

Now it's time to turn the tables and ask what trends you're seeing in your workplace. E-mail a quick description of what you expect to see happening in the workplace in the near future to Richard Rainey at rrainey@wcsr.com.

Copyright 2006 M. Lee Smith Publishers LLC. This article is an excerpt from NORTH CAROLINA EMPLOYMENT LAW LETTER. North Carolina Employment Law Letter is intended as a report on topics of interest in labor and employment law. It is not intended as legal advice. Readers with legal questions or problems should consult legal counsel and should not rely upon this publication without advice of counsel.