Originally published by Brett Holubeck.
It is that time of the year again! The time to review my 2020 labor and employment law predictions from last year to see how well they did or did not hold up. This year’s predictions are a special kind of train wreck with how COVID-19 totally changed the outcome of many of all of these predictions.
Below are my 2020 labor and employment law predictions and my review of them.
1. Minimum Wage Increases Will Occur in a Number of States and Ballot Initiatives Will Be Undertaken to Get Them on the Ballot in Additional States
Florida, as I predicted, passed the $15 minimum wage ballot initiative with 60.82% of voters voting to pass the measure and 39.18% voting to reject the measure. A 60% supermajority was needed for the bill to pass.
Virginia passed a minimum wage law and the increase is set to take effect on May 1, 2021. Originally, the increase was to occur on January 1.
The other ballot initiatives for minimum wage increases or minimum wage increase related issues in Arizona, Idaho, and Missouri did not make it on the ballot.
This is something that we could see expanded into the Biden administration as he supports a $15 minimum wage. It will depend on the outcome of the senate races.
2. Retail Closures and Other Layoffs Continue to Remain High or Accelerate
This prediction turned out to be true, but not for the reasons that I initially thought. The surge in bankruptcies and layoffs is due overwhelmingly to the coronavirus pandemic, the lockdowns, and individuals voluntarily cutting back on their shopping and outings.
According to Retail Dive, over 29 major retailers have declared bankruptcy this year compared to only 17 from last year. In 2019, over 9,500 stores closed. There is not a final count yet for this year, however, it seems likely that this will be one of the worst years since the Great Recession and maybe even the Depression.
As a result of the pandemic, about 1 out of 3 restaurants are expected to close. Approximately 100,000 businesses that temporarily shut down are now out of business (note some of these businesses could have more than one location).
Contrary to the beliefs of many people, there has been a lot of lost capital and it will take years for the economy to recover to where it was at the end of 2019. In addition, 65% of Americans think the recovery will take more than a year, and the Congressional Budget Office puts the time to recover at one decade. We will be dealing with the financial impacts of COVID-19 for a long time.
3. Onboarding and Employee Retention Continues to Grow in Importance
Onboarding did become more important than in 2019, but not for the reasons that I initially stated. In 2019 unemployment was at record lows and median household income was up 6.8% from the prior year to $68,700. All of that changed this year as millions of people reported job losses. Onboarding is more important due to the remote nature of many workplaces, and the need to train new employees on practices regarding COVID-19 became crucial.
You can read more about onboarding in my past post.
4. The Governmental Agencies Gear Up for the Election by Releasing a Lot of New Regulations Before the Election Happens
This one was an easy prediction. It happened when Obama finished his term and it happened under Trump.
Among the regulations that are being finalized are the Department of Labor’s rule on independent contractors. There are several others, but not all are related to labor and employment.
Whether these are overturned through the Congressional Review Act will be determined by the Senate elections in Georgia and who controls the Senate.
5. Candidates Push Their Election Agendas Which Will Give us a Peek into the Labor and Employment Landscape in 2021
This is obvious again. Rather than spending time on Trump’s agenda, which has advanced a lot over the last few years, let’s turn to Joe Biden since he will become the next president. He has outlined a lot of proposals on his campaign site:
- Biden favors the PRO Act (see the full bill here), which will:
○ ban employers’ mandatory meetings with their employees, including captive audience meetings in which employees are forced to listen to anti-union rhetoric; and
○ reinstate and codify into law the Obama-Biden Administration’s “persuader rule” requiring employers to report not only information communicated to employees, but also the activities of third-party consultants who work behind the scenes to manage employers’ anti-union campaigns.
- “He will ensure federal contracts only go to employers who sign neutrality agreements committing not to run anti-union campaigns.”
- He supports card check so that if a majority of employees sign an authorization card, then they can form a union without an election.
- End right-to-work laws that allow workers that don’t want to join a union the right to not be forced to join one. (read more about these here)
- Permit intermittent strikes
- Allow independent contractors to bargain collectively
- Increase the minimum wage to $15
- Eliminate non-compete clauses
- End mandatory arbitration clauses
There will be a seismic shift in labor and employment law under Biden.
6. Union Elections and Organizing Increases this Year Especially in the Tech Sector
This is another prediction that came true. Kickstarter became one of the first tech unions this year. There has also been a spark in interest in unions within the tech sector due to the pandemic but some think that the unions have not done enough to organize this segment of the population.
7. More States Pass Employment Related Laws- Especially Variations of the Independent Contractor Law that California Adopted (the ABC Test)
This one did not come to be.
Governor Cuomo expressed support for the ABC test in January 2020, but the task force that would have examined the issue was ultimately scrapped because of the COVID-19 crisis. It does seem likely that they will get to it at some point in the future.
The closest it came to fruition was the election of Joe Biden, who supports the ABC test at the federal level.
As a reminder from my past post, the elements of the ABC test are:
- The worker is free from control (they determine how to do the work),
- The work is outside the usual business of the company, and
- The worker is customarily engaged in an independently established trade occupation, or business.
It is difficult for many workers to meet all three elements.
8. Mental Health Issues in the Workplace Become More Important
This is the saddest prediction that came true. The coronavirus has affected everyone. It is probably one of the few events from the last 100 years that has affected practically every single person throughout the entire world.
Its effect on mental health is dramatic and tragic. During late June of 2020 a survey by the Centers for Disease Control showed that 40% of adults struggled with mental health and substance abuse; 10.7% of adults had thoughts of suicide compared to 4.3% in 2018; 25.5% of adults ages 18-24 considered suicide; and 13% of adults have started or increased substance abuse. We are a society in crisis. Workplaces need to address these issues to help their employees cope, which in turn will help employees to be better.
9. There will be a Ton of Issues Around Free Speech and the Workplace (i.e. It is an Election Year)
It was an election year and this was spot on.
According to a survey done at Zety , 83% of people talk about politics at work.
It is not just employees that have trouble avoiding political discussion (or getting in trouble when the discussion goes too far). One CEO emailed 10 million customers urging them to vote for Biden. Goodyear got a lot of backlash this year when it used MAGA hats as an example of items that are prohibited in the workplace. They clarified that this was an example of all items related to political speech (note that some political speech would invoke rights under the NLRA and would be protected).
There was a lot of controversy about politics in all aspects of life. In fact, according to a survey conducted for the American Psychological Association, 68% of adults indicated that the 2020 U.S. presidential election was a significant source of stress in their life.
10. The Cases Before the Supreme Court Put Increased Focus on Religion, Transgender Issues, and Sexual Orientation in the Workplace
As I mentioned in my past post, three of the Supreme Court cases last term were about religious issues.
There have been a few cases this year concerning religion, sexual orientation and the workplace (as a result of the Supreme Court’s 2019 Bostock v. Clayton decision that made discrimination based on sexual orientation and gender identity illegal under Title VII), but most of them have been overshadowed by COVID. Virginia enacted a law this year to make discrimination based on gender identity and sexual orientation illegal.
There are three cases before the Supreme Court around religious issues this term (Tanzin v. Tanvir, Fulton v. City of Philadelphia, and Uzuegbunam v. Preczewski) shows the tension and need for clarification around legal matters involving religion. None of these cases deal directly with labor and employment law, but they may shed light on how the court will rule on future cases that do.
11. States Continue to Implement Restrictions on Noncompetition Agreements
This one barely came true. One state (Virginia) enacted new laws concerning non-competes this year.
The law will prohibit non-competes for employees whose average weekly wages are less than the average weekly wages for employees in Virginia. It applies to independent contractors as well, but it does not apply to employees that earn the whole or a majority of their compensation through commissions, bonuses, or other incentives.
The Washington D.C. Council has also voted to ban non-competes except for physicians. It is not clear yet whether the mayor will sign the act, but the Council has a veto proof majority, so it will not matter whether or not she vetoes the legislation. It will still have to go to the Congress for a 30-day review period.
Conclusion
2020 was a year to remember but not in a good way. It will be remembered more in the way that many people remember the years of the Great Depression. The year was consumed by the coronavirus/COVID-19. Three of the top ten google searches in 2020 were related to the virus. Hopefully, 2021 will be a much better year. Wishing you and yours a safe and happy new year!
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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