A Look Back and Ahead: 2020 Employment Law Predictions
Our tradition includes using our first January post to make predictions about “what’s to come” in the year ahead. But first, let’s see how I did over the last year. “Time for 2019 Manufacturing Law Predictions: Drum Roll Please!” (Jan. 9, 2019).
I boldly predicted that on the federal level the government would continue to roll back the aggressive enforcement policies of the Obama administration and that some states (at least the 13 states where Democrats control by the governorships and legislatures) would continue to expand enforcement and employee protections. I agree that I was not going out on much of a limb with those predictions. And not surprisingly, they both came true.
The National Labor Relations Board (NLRB) overturned case precedent at a stunning rate, adopted and implemented revised election rules in record time, and otherwise pumped the brakes on “anti-business” practices. See “U.S. Government Agencies’ Fast Track Changes to Legal Standards (Part 1)” (April 12, 2019). The Department of Labor also got in the act by adopting new rules for overtime pay and a new rule validating business arrangements which might otherwise result in a “joint employer” finding. See “For Manufacturers, ‘It’s Déjà Vu All Over Again!’” (Sept. 19, 2019).
Speaking of “joints,” a record number of states either decriminalized or outright legalized medical or recreational marijuana. Pot is now legal for recreational or medical reasons in over 32 states. See “Legal Pot = Manufacturing Storm Clouds (the Refrain)” (Oct. 31, 2019) and “Legal Pot = Storm Clouds for Manufacturers” (May 29, 2019). The states also flexed their muscles with respect to non-compete and other post-employment restrictions. See “Protecting a Manufacturer’s Competitive Advantage: Recent Developments in Post-Employment Restrictions” (Oct. 10, 2019). And New York State decided to compete with California to see which could claim the title to “most employee-friendly” or “least business-friendly.” See “Manufacturers Face New Discrimination Rules” (June 28, 2019). (I think California still holds that title, but it is getting to be a closer contest.)
I could go on, but I think I made the point. What can we expect in 2020? The same thing, but only more of it.
With another presidential election on the horizon, putting the entire of House of Representatives and one-third of the Senate in play, we can expect both sides to retreat to their political bases. In Washington, the Trump Administration will push through as many regulatory changes as possible, hoping to prevent the next administration (whether in 2021 or 2025) from overturning their overturning of the other side’s precedent. Meanwhile, at least in those states controlled by the “other party,” we can expect increased regulation of the employment landscape. I see more minimum workplace standards, increased paid sick and child care leaves, and a closer look of private agreements used to circumvent the will of the state governments. (Pay close attention to laws like those introduced in several legislatures targeting arbitration agreements.)
Manufacturers, particularly with operations in multiple states, should remain vigilant of these contrasting trends. Remember, now is not the time to panic. We have plenty of time to panic.