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7 Employment Law Trends to Watch in 2018

Webinar recap: “What’s Trending in Labor & Employment Law in 2018?”

Key takeaways about employment law trends employers should be aware of in 2018 and beyond

Employment Law TrendsLast week G&A Partners welcomed back board-certified employment law attorney Alexis C. Knapp of Littler Mendelson, the host of our popular annual employment law update webinar series. As in previous years, Knapp gave viewers a fast-paced overview of the hottest labor and employment law trends employers have seen over the past year, and also offered her insight on what employment law trends employers might expect to see going forward.

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Trend #1: Fewer new employment laws passed at the federal level

There are a few different factors contributing to this trend:

1. This has been the trend throughout recent history when the White House administration changes parties;

2. Congress has a number of other priorities at the moment (immigration and health care);

3. The budget of some employment agencies took a pretty major hit when the new spending bill was approved earlier this year.

In terms of the changing of the administration, the federal agencies that govern the human resources function – the Equal Employment Opportunity Commission (EEOC), National Labor Relations Board (NLRB), and the Department of Labor (DOL) – do tend to be political in nature. This is largely due to the fact that much of the leadership at these agencies is appointed by the President. So, when there’s a Republican in the White House employers will tend to see less employment regulation, and when a Democrat is in office employers will generally see more employment regulation.

Taking a look specifically at the transition from the Obama administration to the Trump administration, under President Obama these agencies had larger budgets and more investigators who were very active and aggressive in the enforcement of employee rights. As expected, the Trump administration has pulled back on these efforts. The DOL is perhaps the best example of this: the new budget cut the Department’s budget quite a bit, which will have a significant impact on the how aggressive it is in pursuing investigations into wage and hour, leave and other issues. The DOL has also withdrawn a number of pro-employee opinion letters issued during the Obama administration.

Trend #2: A shift in the application of FLSA exemptions

Early in his administration, President Trump appointed new Supreme Court Justice Neil Gorsuch, and just this month the Court has issued a very pro-employer case in the case of Encino Motorcars, LLC v. Navarro (SCOTUS, April 2, 2018).

This case is noteworthy given its implications for all employers that are required to with the Fair Labor Standards Act (FLSA). In this decision, the Court rejected the longstanding principle that the white-collar exemptions under the FLSA are to be narrowly construed, and that they instead should be broadly construed. This is a major victory for employers, as the misclassification of non-exempt employees as exempt under the FLSA has been the source of a lot of audits, lawsuits and penalties over the years, and is something all employers should be watching pretty carefully as we see how this plays out.

White Collar Exemptions For FLSA

Trend #3: A resurgence of “failure to hire” litigation

Business leaders and HR professionals tend to spend the majority of their time and energy focused on the people who come into their workforces (how they’re treated, how to retain them, what happens if they’re terminated, etc.), but recently the EEOC has given a lot of attention to the candidates that are turned away by looking more closely at “failure to hire” cases.

Once an employer rejects an applicant or candidate they tend to forget about them fairly quickly, but the reality is that that person has about year to file a charge against the employer if he/she feels the reason they weren’t hired was because of a protected characteristic covered by Title VII of the Civil Rights Act of 1964. The renewed popularity of failure to hire cases has resulted in the EEOC revisiting what employers are doing in terms of recruiting, publishing job opportunities, what’s included on job applications, what’s being asked during the interview process, etc. as part of its efforts to eliminate discriminatory barriers in recruitment and hiring.

Trend #4: Sexual harassment issues continue

The #MeToo movement certainly brought workplace sexual harassment to the forefront of the conversation about workplace issues, but employers shouldn’t forget that all harassment based on a protected class is illegal. At this point, employers who can’t prove that they have a robust anti-harassment policy and good complaint and investigation procedures in place are at a real risk of having the book thrown at them if they ever find themselves facing an EEOC charge.

Signing AgreementThe increased attention on sexual harassment has also prompted action outside the realm of the EEOC. A section in the new federal tax bill has amended the tax code to prevent employers from deducting settlements or payments related to sexual harassment or abuse (as well as associated attorney’s fees) if the settlement is tied to a non-disclosure/confidentiality provision. Congress has also gotten involved, as well. Three bills have been introduced over the past several months to address issues of sexual harassment, including arbitration of sex discrimination disputes and reporting employee settlements as a result of discrimination claims on the basis of sex on the EEO-1 report.

Trend #5: Application of the NLRA to non-union workplaces

While the National Labor Relations Act (NLRA) is largely viewed by many as a union-specific law, the 1930s law didn’t require employees to be a member of a union to receive protection. In fact, Section 7 of the NLRA explicitly gives all employees the right to band together to engage in efforts to improve their working conditions.

In the past decade (and largely as a result of social media), Section 7 has been used to protect employees’ rights to complain about their bosses, how they were paid, company policies, etc. across union and non-union workplaces, as well as enlist outside support for their complaints (with some limitations). Section 7 rights continue to shape how employers deal with issues of insubordination and termination, as well as confidentiality issues around internal investigations. With the composition of the politically-driven NLRB, which enforces the NLRA, becoming more conservative under the Trump administration, however, employers may see changes in how the agency enforces the NLRA when it comes to the terms and conditions of employment.

Trend #6: “Off-the-clock” work

Time HeadWhile almost every employer would say that it doesn’t let or require employees to perform “off-the-clock” work (i.e. work outside of work hours and for which the employee is not being compensated), the reality is that a lot of off-the-clock work happens that managers or leadership isn’t aware of. Issues of timecard adjustments, pre- and post-shift activities, auto-deductions for meal and break periods and work performed by hourly employees at home or while traveling will continue to be popular sources of litigation.

Trend #7: More action from state and local governments on paid sick leave

Many state and local governments have been stepping in to fill what they see as a vacuum in federal law regarding paid sick leave. The latest battleground for this issue is in Texas, where the City of Austin passed a paid sick leave law earlier this year that is facing stiff opposition from some state lawmakers and business groups. With more local jurisdictions taking up the crusade for mandated paid sick leave across the country, employers might want to consider taking the time to review their current policies, or even consider implementing a paid sick leave policy.

Want to learn more about these and other employment law trends?

Check out the on-demand recording of this webinar below to hear what employment law trends you should be paying attention to.

This webinar was presented by Alexis C. Knapp of Littler Mendelson, and recorded on April 26, 2018 at 11 a.m. CT.

This article is not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. Readers should contact legal counsel for legal advice.

One response to “7 Employment Law Trends to Watch in 2018”

  1. Kate Welling says:

    I was surprised to read that local governments are taking more action on sick leave. My husband has been thinking about talking to an employment lawyer because he felt violated of his paid time off! It would be nice for him to talk to an attorney about it because they would know all the politics and what’s going on in the government. I feel like my husband would be able to get the help he needs.

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