Prior reading: Emerging Labor & Employment Law Trends (Part 1)
With summer 2016 almost behind us, employers should begin to plan for the major labor and employment law trends expected to emerge in the last quarter of the year and into 2017. In the first part of this two-part series, we looked at some of the principal trends likely to be shaped by federal regulators. In this second and final piece in the series, we will look at some other trends, with a particular emphasis on emerging state and local movements.
- Equal Pay on Everyone’s Radar. Last fall, California and New York enacted legislation strengthening existing equal pay laws by making it more difficult to discriminate against workers based on sex. Other states, like Massachusetts, have followed suit in the ensuing months. And beyond the state level, the U.S. Equal Employment Opportunity Commission (EEOC) is finalizing an equal pay data rule that will likely require employers with more than 100 workers to provide pay data across up to 12 pay bands, broken down by sex, race, and ethnicity.
It is therefore important for all employers, even those in jurisdictions without newly-updated equal pay laws, to review compensation data to ensure that employees within a given region, even if there are multiple offices, are being fairly and consistently paid without regard to sex, race, or some other protected characteristic.
- Expansion of LGBT Rights in the Workplace. In recent years, the EEOC has taken the position that federal law bars discrimination based on sexual orientation and gender identity. This position is just beginning to be litigated in the federal court system and may ultimately work its way to the Supreme Court. In the meantime, numerous states and cities have passed laws barring discrimination based on sexual orientation, transgender status, and gender dysphoria. Expect to therefore see an increase in EEOC charges and litigation involving claims of discrimination against LGBT workers.
- Increased Limitations on the Hiring Process. Perhaps the area of greatest legislative activity at the state and local level over the past few years has been the restriction of the pre-employment process, specifically laws barring employers from inquiring into an applicant’s credit and/or criminal history during the hiring process, as well as laws barring employers from inquiring about a candidate’s salary history. For employers with operations in multiple jurisdictions, these new laws likely require a complete overhaul of the hiring process. The laws also come at the same time that class actions under the Fair Credit Reporting Act, a federal law governing employer’s use of background checks, have reached an all-time high.
- Medical Marijuana Legislation. The enactment in several states of legislation permitting the use of medical marijuana has required the business community to re-consider longstanding policies and procedures regarding substance abuse. Employment-specific issues include whether accommodations are required for medical marijuana users and the right to terminate employees who test positive for marijuana. Although lawsuits by medical marijuana users questioning their employers’ practices have been limited thus far, that is sure to change over the next few years.
- Efforts to Preserve Family and Caregiving Obligations. Another trend gradually gaining traction is legislation designed to protect employees’ family and caregiving obligations. New York, for instance, recently passed laws barring familial status discrimination and, effective in 2018, providing employees with up to 12 weeks of paid family leave. And New York City, for its own part, recently adopted legislation barring “caregiver” discrimination. As other jurisdictions mull similar protections, expect to see an increase in litigation by employees who claim to have been discriminated against based upon their family and caregiving obligations.
- Validity of Class Action Waivers. There is currently a split among the federal Circuit Courts of Appeals as to whether class action waivers in arbitration agreements violate Section 7 of the National Labor Relations Act. Expect the Supreme Court to weigh in on this question in the near future. In the meantime, the National Labor Relations Board will likely continue to conclude that such waivers violate federal law.
As we head into last quarter of 2016, the U.S. employment law landscape is as dynamic as ever. Employers therefore can, and indeed should, expect significant changes to their employment relationships in the coming months and year. It is more crucial than ever that employers stay in regular contact with their experienced employment law counsel to prepare.