Originally published by Brett Holubeck.
If you recall this article from last year article from last year, then you remember that I made some labor and employment predictions for 2019. Some of them came true, but some of them were delayed, likely until 2020. Here is an overview of each of the labor and employment predictions and where the law or issue stands right now.
1. Sexual Harassment Lawsuits Increased
In 2018, the last fiscal year that data is available for
sexual harassment lawsuits, the data from the EEOC showed that these lawsuits
increased:
The agency also received 7,609 sexual harassment charges – a 13.6 percent increase from FY 2017 – and obtained $56.6 million in monetary benefits for victims of sexual harassment.
The final figures for 2019 are not available yet. However, increasing sexual harassment litigation and charges at the EEOC is a trend that will likely continue. Sexual harassment is not being tolerated in the workplace. Moreover, companies are holding their executives, managers and others to a higher standard than they used to. For example, the CEO of McDonalds stepped down last year for having a consensual relationship with an employee. Again, that is a consensual relationship without any sexual harassment. Many companies prohibit their C-suite from dating anyone at the company. Every company needs to consider how they can prevent sexual harassment. Training for employees, training for managers, and having an appropriate complaint procedure is absolutely necessary, or it will most certainly cost you in the long run. You can read more of how companies can prevent sexual harassment here and in this recent Chicago Tribune article where I discussed office romance in the workplace.
2. The Supreme Court Has Taken Cases to Determine Whether Sexual Orientation is Protected.
The Supreme Court has consolidated 2 cases (Bostock v. Clayton County, Georgia and Altitude Express Inc. v. Zarda) to determine whether discrimination against an employee due to their sexual orientation is prohibited employment discrimination “because of sex” under Title VII. The Supreme Court also took a case (R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission) to determine “[w]hether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins.
Essentially, the first
cases will determine if sexual orientation is a protected characteristic under
the law (whether it is illegal to discriminate against someone because of their
sexual orientation). The second case will determine whether it is illegal to
discriminate against someone because they are transgender.
The arguments were in early October; most people expect this to be one of the final decisions that the court issues in June. It is anyone’s guess how these cases will be decided. Most people expect that these cases will be highly divided.
3. The Department of Labor is Increasing the Salary Threshold (but I’m Off by 1 Day).
The Department of Labor did increase the salary threshold to be exempt from overtime (employees must still meet the duties test of one of the exemptions), but I missed my prediction by 1 day (it went into effect on January 1, 2020).
I wrote about this a couple of weeks ago. Here is what the DOL did:
The new overtime salary threshold will be $684 per week (which equals $35,568 per year). The new rule also raises the threshold for the highly compensated category from the current threshold of $100,000 to $107,432 per year. The new rule will also permit employers to use nondiscretionary bonuses and commissions that are paid on at least an annual basis within this count towards meeting the overtime salary threshold (but only up to 10%) of the salary level.
4. Paid Family Leave is Still Coming. It was not Implemented Nationally Last Year, but There Have Been Some States that Have Expanded Paid Leave.
Currently only D.C. and 8 states have passed Paid family leave laws. While no paid family leave proposals were enacted last year at the federal level, several states (and the federal government for its employees) have begun implementing paid family leave or increased paid sick leave.
- The House of Representatives has approved a bill to give 12 weeks of paid parental leave to federal workers and President Trump has shown support for the bill.
- The state of Washington passed SB 5975 in July 2017 to commence a paid leave program at the start of 2020.
- Connecticut passed legislation in 2019 that establishes a paid family leave program. Employers must begin withholding and remitting contributions by January 1, 2021, and employees can begin using the leave on January 1, 2022.
- Oregon also passed a law that will take effect in 2023 and will provide 12 weeks of paid time off for parental leave, leave for domestic violence issues, and if the person is ill or caring for a family member that is ill.
- Nevada passed a paid leave law that went into effect on January 1 and will apply to employers with 50 or more employees. These employees will generally get 40 hours of leave per year.
- Washington D.C. residents will be eligible for paid leave beginning on July 1, 2020. Employees will be able to use “8 weeks to bond with a new child, 6 weeks to care for a family member that has a serious health condition, and 2 weeks to care for their own serious health condition.”
- Maine passed a law that will go into effect in January 2021 that will require employers with 10 or more employees to provide up to 40 hours of paid leave every year. It is the first state to allow the leave to be used for any reason rather than merely sick leave.
- California passed SB 83 which increased paid family leave from 6 weeks to 8 weeks beginning on July 1, 2020 and increases the wage replacement rate.
With this year being an election year, one should expect that more states will begin to pass paid family leave.
5. NLRB Joint Employer Standard Will be Issued Soon
Again, this one was close. Originally, the National Labor Relations Board (NLRB) was set to issue the final rule in December 2019, but it has not yet issued the final rule. It has, however, ruled that McDonald’s should not be held responsible for any labor violations of the franchisers (i.e. it is not a joint employer). The final rule was not published in 2019, so employers should expect that it will be published sometime this year.
Moreover, both the Equal Employment Opportunity Commission (EEOC) and the Department of Labor (DOL) are set to issue joint employer rules of their own in 2020.
6. Independent Contractor Issues Did Arise in Many States
This prediction is a big yes. 2019 may be remembered as a
tipping point for issues related to independent contractors. However, it is not
due to the actions of the federal government.
The change occurred because of state regulations and new legislation. The biggest impact on independent contractors last year came out of California and New Jersey (which may spread to other states in 2020). California passed AB 5 in September of last year and the legislation took effect on January 1, 2020. To be an independent contractor all 3 of the following elements must now be met:
(A) The hiring entity does not control or direct the worker in performing the work in fact or under the terms of a contract;
(B) The work performed is outside the “usual course” of the hiring entity’s business; [and]
(C) The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.
It is very difficult for
many workers to meet the second prong (outside the usual course of a company’s
business). This prong (and specifics in the bill) is why the new test has come
under a lot of controversy from
independent truckers and freelance writers (who are now limited to 35 articles per publication before the company must
hire them as employees, and as a result being hurt by this new law). These individuals are losing their
flexibility due to the law as they can no longer be independent contractors.
Of course, the law will have an impact on the major companies in the gig economy (Uber, Lyft, DoorDash, etc.), but many of these companies do not plan on transitioning their independent contractors to employees right away as they plan to argue that these workers are not a part of their core business. For example, Uber will argue that they are a technology platform for several different digital marketplaces (Uber, Uber Eats, etc.) that match providers (drivers) and customers (riders) and their drivers are thus independent contractors.
New Jersey was also a major player in changing the landscape of independent contractors this past year. The New Jersey Department of Labor and Workforce Development issued a $649 million fine to Uber for unpaid unemployment and disability insurance taxes, which Uber is challenging. Essentially, the ruling was for Uber failing to pay taxes for these workers because they were misclassified as independent contractors rather than employees.
7. Medical Marijuana Protections Update
Marijuana laws have continued to change all across the
country. The Health Employment and Labor blog from Epstein Becker Green
does a nice job explaining the past year of marijuana changes.
Illinois became the 11th state to legalize the use of recreational marijuana and the law took effect on January 1, 2020. Under the law, employers in Illinois may still take action against employees or applicants that fail a drug test provided that it is in the employer’s reasonable policy.
Epstein Becker Green’s blog also notes that:
New Mexico and Oklahoma each passed legislation that prohibits employers from discriminating against employees because of their status as registered medical marijuana users; however, the Oklahoma law does provide an exception for safety-sensitive jobs and for situations which the employee possesses, consumes or is under the influence of marijuana at work.
In Nevada, a new law taking effect on January 1, 2020, prevents employers from failing or refusing to hire an applicant because the applicant tests positive for marijuana. Perhaps not surprisingly, New York City went one step further when it passed an Int. 1445-A, barring most employers from conducting any pre-employment testing for marijuana or THC.
Similarly, New Jersey now prohibits employers from disciplining or terminating an employee solely based on that individual’s status as a registered medical marijuana user. While the law does not prevent employers from prohibiting or disciplining employees from using marijuana during work hours or on workplace premises, Garden State employers with a drug testing policy are required to offer employees and applicants who test positive the opportunity to explain the positive result.
Companies should expect more changes in marijuana law in 2020.
8. ICE and Notice of Inspection Statistics
We are still waiting to see the exact numbers for 2019, however, Miriam Jordan’s New York Times article, More Than 2,000 Migrants Were Targeted in Raids. 35 Were Arrested, confirms that 3,282 Notices of Inspection were issued as of July 22, 2019. The article also provides key statistics from Immigration and Customs Enforcement. It appears that notices of inspection are at least on pace to be at an increased level from the Obama administration.
9. DACA’s Constitutionality to be Determined in 2020
The Supreme Court has consolidated three cases that concern DACA (Department of Homeland Security v. Regents of the University of California, Trump v. NAACP, McAleenan v. Vidal)
These cases basically deal with whether the Department of Homeland has the authority to end the program which 700,000 people rely on. Trump has expressed support for DACA, but wants Congress to act on a more permanent solution (likely as part of a wider deal on immigration).
I thought that the Supreme Court would have accepted the case a bit earlier than they did (in first half of 2019), but the case was ultimately not on the 2018-2019 docket. It is instead on the 2019-2020 docket, so we will get an answer on the constitutionality of the DACA program this year. Everyone expects this to be one of the most contentious cases this term with a decision in late June 2020.
10. Work Authorization for the spouses of H-1B Visa Holders with an Approved I-140 (Essentially their Employer Sponsored Green Card Petition) Will Likely be Determined in 2020.
I thought that the government would have reached a decision
on the Employment Authorization Documents for spouses of H-1B visa holders with
an approved I-140 (there are some immigrants that are waiting 10 or more years
from the approval of their employer sponsored petition for them to become green
card holders to them finally becoming permanent residents) in 2019.
Fortunately, there has been a delay, which is great for H-1B visa holders as
their spouses can continue to renew their work authorization until a decision
is issued.
Big Law Business from Bloomberg law explains the
current state of the law:
The fate of H-4 employment authorization hangs in the balance as 2019 [came] to a close. It’s been nearly a year since the Department of Homeland Security sent the Office of Management and Budget a proposed rule that would rescind a 2015 regulation extending certain H-4 visa holders—the spouses of H-1B professional workers—the opportunity to seek U.S. employment.
The DHS has offered little explanation as to why the rule remains unpublished, but recently affirmed its commitment to proceed with rescission as early as spring 2020, albeit referring to that timeframe as “aspirational.”
In the meantime, H-4 employment authorization faces a second, more pressing threat. On Nov. 8, in Save Jobs USA v. DHS, the U.S. Court of Appeals for the District of Columbia Circuit held that a group of American IT workers has standing to challenge the H-4 regulation.
The court remanded the case to the district court to address the merits of Save Jobs’ claim—that the DHS lacks authority to extend employment authorization to H-4 spouses absent explicit congressional direction.
Essentially, there is now a court case that will be decided over the next year or two (through a decision and appeals) and a regulation that may be released in 2020 (however, that is what the agency said in 2019 so we will see if that holds true) that will provide clarity on the issue. Of course, if a Democratic candidate is elected in 2020, then these individuals will likely keep their work authorization (or will regain it in 2021).
Conclusion
2019 was a huge year for labor and employment law. 2020 will be another big year as the current administration tries to put out more regulations and decisions before the 2020 presidential election. I will follow along with these pending cases this year, and address them here as decisions are made. I also be making some more labor and employment predictions for 2020, so stay tuned.
Wishing everyone a happy and healthy 2020- and for those of you who have already broken your resolution (did you already eat that piece of pie you swore off of? I know I did.), remember every single day is a day for progress. Cheers to that!
The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.
The information provided is my own and does not reflect the opinion of my firm or anyone else.
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