Employment Law This Week: January 7th, 2019: A Look Back and the Year Ahead
This Employment Law This Week Monthly Rundown features a recap of the biggest employment law trends from 2018 and a look ahead at what’s to come in 2019.
1. #MeToo Movement in the Workplace
For employers, 2018 was the year of #MeToo. While the movement began in the fall of 2017, last year, it touched every aspect of employment law—from harassment training to arbitration.
Jennifer Gefsky (Member of the Firm, Epstein Becker Green):
"I think if the #MeToo movement taught us one thing, it’s that employers face significant liability and risk in the event that allegations are made against any employee or supervisor or the highest-level executive at the company."
For many businesses, the biggest impacts came from new state and local regulations.
Ian Carleton Schaefer (Member of the Firm, Epstein Becker Green):
“We’re seeing required training, like in New York State and New York City, that requires employers to conduct annual anti-harassment training for all of its employees, whether you have worked there for one day or for 10 years.”
In 2019, we can expect to see more legislative action, particularly in the area of equal pay, where much of the #MeToo focus has shifted.
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2. AI in the Workplace
In 2018, many employers put the potential of artificial intelligence (“AI”) into practice. AI is being adopted at a rapid pace across the country, and the changing landscape is creating complex concerns around workforce management.
Michelle Capezza (Member of the Firm, Epstein Becker Green):
“With the changes in automation and artificial intelligence being introduced into the workplace, employers really need to strategically plan for the future and determine what the future composition of their workforce will be.”
While employment professionals are grappling with the impacts of AI on the workplace, they’re also beginning to use it as a tool in their own work.
Nathaniel Glasser (Member of the Firm, Epstein Becker Green):
“The expectation with using people analytics is often that you’ll reduce subjectivity and therefore decrease the risk of an intentional discrimination claim. Companies have to be careful that the algorithm that they use doesn’t perpetuate biases or otherwise increase the risk of a disparate impact claim.”
This year, we expect to see an increased focus on adjusting employee benefits programs for automation and AI, and, in reaction to the proliferation of this technology, increased attempts to protect employee privacy.
3. A Year of Transition
Indeed, 2018 was a year of transition, as the federal policy started to catch up with the political moment in Washington. We saw that in a hotly contested confirmation of Brett Kavanaugh to replace Justice Anthony Kennedy, cementing a 5-4 conservative majority on the U.S. Supreme Court.
Jim Flynn (Member of the Firm, Epstein Becker Green):
“Management and employers will, I think, have a friend in Judge Kavanaugh on the bench.”
We saw transition in the Department of Labor and, more slowly, in the National Labor Relations Board (“NLRB” or “Board”). The Board’s battle over joint-employer relationships continued right up to the end of 2018, when the U.S. Court of Appeals for the District of Columbia Circuit finally issued its decision in Browning-Ferris. To the surprise of many, the court did not reject the joint-employer standard that the 2016 Board used in that case, but remanded to the NLRB to clarify its application of the test to the facts. It remains to be seen whether this will have any effect on the proposed joint-employment rules published last September.
4. More Transition in 2019
We begin the year at an important inflection point. A standoff is brewing over several agency vacancies that require Senate confirmation. The Senate did not confirm Mark Pearce for another term on the NLRB, or Chai Feldblum for another term on the Equal Employment Opportunity Commission (“EEOC”). Both first served under President Obama and were nominated for new terms by President Trump in 2018. Both faced significant resistance from Republicans in the Senate and their nominations died when Congress ended its session last month.
Late last year, Washington Senator Patty Murray had pledged to block unanimous consent votes on all other labor nominees unless the pending nominations of Feldblum and Pearce were confirmed. With Feldblum’s term now expired, the EEOC lacks a quorum. It remains to be seen whether Feldblum and Pearce will be re-nominated in the new Congress, and, if they are, whether they will be confirmed by the Senate.
Gender identity in the workplace, medical and recreational marijuana, data privacy—2019 promises answers to some big questions about how our workplaces will function going forward. We saw with the Epic ruling last year how the entire debate over class action waivers can seemingly be resolved in a single Supreme Court decision. Maybe the 2019 court will make its mark on employment law as well.