In "Other Duties as Assigned," HR Dive's senior editor, Kate Tornone, weighs in on employment trends, compliance best practices and, of course, the situations that require you to go above and beyond your normal duties. Today: 2018's duds, and why you still need to make note of them.
A few weeks ago I interviewed Louis R. Lessig, a partner at Brown & Connery, LLP, to bring you From unclear to unnerving: 3 rulings that could reshape HR policies. He identified a handful of rulings from 2018 that could very well reshape the employment law landscape in the near future.
But what about the cases that weren't? The ones that were supposed to make it onto that list; the ones that we followed for you only to deliver a final update explaining that, well, it was kind of a dud.
It happens from time to time, often because parties settle or an opinion was so fact-specific that it really can't be applied outside of the instant case. In 2018, we had a few of those. If nothing else, they're worth noting because we'll likely see more litigation on these topics in 2019 as stakeholders continue to seek answers, and because some could carry a lot more weight should a democrat take the White House in 2020.
As employers increasingly make use of independent contractors — the "gig economy," if you will — the country waited on the edge of its collective seat to see how a California court would apply state law to a GrubHub driver.
The ruling provided a little bit of a roadmap for classification, experts said, but was too narrow to really shift the landscape.
Instead, the year's biggest news on the independent contractor issue came just weeks ago when the 9th Circuit dealt a major blow to Uber drivers who were attempting to avoid arbitrating their misclassification claims. The court said the drivers' argument was foreclosed by Epic Systems Corp. v. Lewis, a U.S. Supreme Court ruling from May that approved collective action waivers.
Because few contractors will pursue claims on their own, the ruling is of significant benefit to Uber and other comparable businesses, one expert said. But the question of whether drivers are employees or contractors remains unresolved for now.
Joint employment still looms large for employers, too. The Obama administration took an employee-friendly stance on the issue, and the Trump administration has, so far, been unable to reverse much of those changes.
The U.S. Department of Labor rescinded a guidance on joint employment under the Fair Labor Standards Act without replacing it, and the Supreme Court declined to weigh in on the issue in January. Most of the joint employment action (albeit futile action) this year happened over at the National Labor Relations Board where Trump appointees have been working to reverse the agency's position on joint employment under the National Labor Relations Act; attempts at doing so via litigation have so far been unsuccessful, so the agency is now eyeing a formal rulemaking.
But despite all the drama surrounding NLRB's efforts both within the Board and in court, there may not be as much at stake for nonunionized workplaces anymore. While the Obama administration drastically expanded its enforcement efforts into workplaces where there were no unionization efforts, that's unlikely to be the Trump NLRB's plan, Lessig told me in that previous interview; "there was a window of time where that was a really big deal but I think ... the sense is that things are going to be ratcheted back."
The same goes for NLRB's previous focus on concerted activity in nonunionized workplaces, according to Lessig. In-N-Out employees made headlines when the 5th Circuit this year approved an NLRB decision that approved their wearing "Fight for $15" buttons at work; NLRB's ruling, however, came before the Trump administration was able to reshape the Board so it's a little bit of a dud, at least for now.
Considering Epic and Janus v. American Federation of State, County and Municipal Employees, Council 31 — a High Court ruling that experts say could drastically weaken unions — and newly confirmed Justice Brett Kavanaugh, "I wonder how much of this is really going to continue," Lessig said. "I'm not saying that unionized labor's going away, because it's not, but for a lot of employers who are nonunion, hopefully we're sort of dialing things back to where it was in the past — where NLRB just deals with unionized workers."
The Supreme Court has been asked to review the In-N-Out ruling, but the outcome is unlikely to make the kind of splash it would have during the Obama years. Nonunion employers are just generally focused elsewhere right now, Lessig said; "Unless you're engaged in that space, it's just not on your radar and there are so many other things to be concerned about."