Employment law issues in 2019 will mirror those of 2018. The past 12 to 18 months have brought a maelstrom of public attention to employment-related issues, including sexual harassment, structural inequity and disability as well as other workplace accommodations. These issues will unquestionably remain part of the employment law landscape in 2019 and beyond. Employers should be aware that not all of the pertinent employment issues are highly publicized, but all issues require attention and focus.
The #MeToo movement was born in fall 2017, after the revelation of a string of high profile sexual harassment complaints in the entertainment, news and sports industries. The hashtag spread virally over social media and thrust the issue into the national spotlight. The message was that, despite the existence of federal and state anti-discrimination and harassment laws, sexual discrimination, assault and harassment are still prevalent in the workplace in the 21st century. At the federal level, we saw response to the movement in new tax laws, as well as enhanced administrative agency action at the Equal Employment Opportunity Commission (EEOC) with both its training programs and a notable increase in the number of sexual discrimination/harassment cases filed.
In the wake of #MeToo, several states are taking aim at workplace sexual harassment. Initially, state response was to boost their own sexual harassment training by making it mandatory or more frequent. Thus far, only a handful of states have worked to pass measures that apply beyond state government. California is at the forefront of the movement. The Golden State has already banned nondisclosure provisions in settlements involving claims of sexual assault, harassment or discrimination based on sex. Additionally, California employers will also no longer be able to compel workers to sign nondisclosure agreements as a condition of employment or in exchange for a raise or bonus. Further, by the end of 2019, publicly held companies in California will be required to have at least one woman on their board of directors. Lawmakers in Arizona, Maryland, New York, Tennessee, Vermont and Washington have sought to strengthen sexual harassment protections for private-sector employees. It is expected that other states and municipalities will follow suit.
Pay Equity has also been at the forefront of concern over the past few years. At the federal level, the EEOC highlighted pay equity as a focus point several years ago and some states have begun to follow suit. Statistical studies have shown that women are paid less than their similarly situated male counterparts. For example, according to data posted by nationalpartnership.org, women in Pennsylvania are paid an average of $10,733 less per year than their male coworkers. This gap is even more troubling for minority women. The study showed that black women earn $16,998 less and Latina women make $22,724 less than the average man. The statistics are similar in other cities and states across the country. Organizations, such as The Women’s Law Project, are determined to close this gap by targeting state legislation that they consider to be outdated. For example, Pennsylvania’s equal pay law has not been updated since 1967. According to their website, The Women’s Law Project attorneys have assisted in drafting the necessary corrective legislation, hosted round-tables and panels addressing ways to close gender and racial wage gaps, and testified before both Philadelphia City Council and the Pennsylvania House Labor & Industry Committee on the subject of equal pay.
Some states and cities have already started to implement change. Massachusetts was the first state to pass pay equity laws. In the city of Philadelphia, New York, as well as other jurisdictions, employers are no longer permitted to ask salary history questions to candidates during the hiring process. Salary history bans are being contemplated by other cities and states as well.
Minimum Wage Gets a Boost
Despite the fact that the federal minimum wage has remained $7.25 for 10 years, almost half of the states in the United States will be raising their minimum wages in 2019 to at least $12, while a few cities, including New York and Seattle, are raising their minimum wage to $15. Other states have minimum wage hike legislation in process.
The Tax Cuts and Jobs Act, which was signed into law at the end of 2017, impacts certain deductions and reporting provisions for 2018 and 2019. For example, the new law eliminates, at least through 2025, the exclusion for employer-paid relocation expenses, the deduction for employer-paid transportation benefits and the business deduction for entertainment expenses.
In the wake of #MeToo, the tax law also incorporated a provision which eliminates a business deduction related to nondisclosure agreements (NDAs) in connection with the settlement of sexual harassment claims. Basically, the new law requires employers to make a choice between the confidentiality of sexual harassment claim/suit settlements and a tax deduction.
Immigration policy and enforcement is a priority of the current administration. Employers should expect to see continued, increased U.S. Immigration and Customs Enforcement activity.
Federal Regulatory Arena
In September 2018, the National Labor Relations Board (NLRB) issued a proposed rule to clarify the joint employment standard. The proposed rule softens the hard line joint employer standard that was set forth in Browning-Ferris Industries in 2015. The final rule is expected sometime in 2019.
The DOL’s Wage and Hour Division is expected to release a revised white-collar exemption overtime proposed rule, a rule clarifying the ‘regular rate” of pay for overtime calculations and its own joint employer rule sometime this year.
Other Employment Issues to Focus Upon
Health care issues, LGBTQ issues in the workplace, medical marijuana, disability, leave, cybersecurity and age discrimination are issues that have seen some focus on the federal and state stage over the past year or so. It is likely that we will see further legal developments in 2019 and beyond.
Employment issues are ever changing and evolving as are an employer’s business needs and responsibilities. Even in a year where there is not much change, there is still enough change that could impact employers and their workplace policies and practice, and compliance with federal, state and local law requirements. Employers would benefit from setting aside the time to annually evaluate their handbook, policies and practices and consider consulting with counsel concerning developments and changes in employment laws.
Stephanie K. Rawitt, a member at Clark Hill, provides services and advice to employers on employment and labor matters. She represents a variety of clients including hospitals, public entities, nonprofit organizations, private businesses, colleges, universities, and corporations. Contact her at firstname.lastname@example.org.