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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.

 

©2019 Epstein Becker & Green, P.C. All rights reserved.

TRENDING LEGAL ANALYSIS


About this Author

Jennifer Gefsky, Member of the firm, Epstein Becker, labor attorney
Member

JENNIFER GEFSKY is a Member of the Firm in the Employment, Labor & Workforce Management practice, in the New York office of Epstein Becker Green. Her practice covers labor and employment matters in a practical manner tailored to each client according to its unique business, culture, and circumstances.

Ms. Gefsky’s experience includes:

  • Advising clients on employment-related issues, including employment best practices; claims of discrimination based on race, sex, age, disability, and national origin; hiring and firing; compensation and benefits; and...
212-351-4742
Ian Carleton Schaefer, Technology Practice Group, Epstein Becker,
Member

IAN CARLETON SCHAEFER is a Member of the Firm in the Labor and Employment practice, in the New York office of Epstein Becker Green. He co-leads the Technology, Media, and Telecommunications ("TMT") strategic industry group and serves as co-editor of the Technology Employment Law blog. Named to the New York Metro Rising Stars list (2011, 2013, 2014) in the area of Employment & Labor, Mr. Schaefer provides a practical and results-driven approach to counseling and defending employers on the full spectrum of employment issues. He has significant experience working in the TMT space, as well as the sports, entertainment, and arts sectors.

212-351-4787
Michelle Capezza, epstein becker green, New York, employee benefits
Member

MICHELLE CAPEZZA is a Member of Epstein Becker Green in the Employee Benefits and Health Care and Life Sciences practices, and co-leads the Technology, Media, and Telecommunications strategic industry group. She practices law in the areas of ERISA, employee benefits, and executive compensation. Ms. Capezza has more than 18 years of experience representing a range of clients in these types of matters, from Fortune 500 companies and multinational corporations to non-profit entities, medium-sized businesses, and individual executives. Ms. Capezza provides...

212-351-4774
Nathaniel M. Glasser, Epstein Becker, Labor, Employment Attorney, Publishing
Member

NATHANIEL M. GLASSER is a Member of the Firm in the Labor and Employment practice, in the Washington, DC, office of Epstein Becker Green. His practice focuses on the representation of leading companies and firms, including publishing and media companies, financial services institutions, and law firms, in all areas of labor and employment relations.

Mr. Glasser’s experience includes:

  • Defending clients in employment litigation, from single-plaintiff to class action disputes,...

202-861-1863
James P. Flynn, Epstein Becker Green, Corporate Counseling Lawyer, complex commercial matters attorney,
General Counsel

JAMES P. FLYNN is a Member of the Firm in the Litigation and Labor and Employment practices. He serves as the General Counsel of Epstein Becker Green and the Managing Shareholder of the firm's Newark office, where he is based. His practice focuses on civil litigation and corporate counseling, including trial and appellate work in the area of intellectual property, complex commercial matters, and employment law. Mr. Flynn represents businesses in a broad spectrum of industries, including health care, pharmaceuticals, and financial services.

973-639-8285