4 employment law predictions for 2019
"The light will continue to be shined" on issues like harassment, but Epstein Becker & Green attorneys advise HR to pay attention to developments in other areas, too.
Take a look at the landscape of employment law going into 2019, and HR will find many of the same concerns voiced by the C-suite in 2018. The past 12 months brought a swarm of public attention to harassment, structural inequality and accommodations employers won't soon find respite from, according to attorneys at Epstein Becker & Green.
"The light will continue to be shined on those issues," said David W. Garland, a member of the firm in the Employment, Labor & Workforce Management practice and a member of the firm's board of directors. "We're all finding ways to comply and we're doing it in a period where the talent pool is the smallest it's ever been."
But not every topic is able to capture the public's attention in quite the same way; HR will have plenty of administrative changes to take account of outside of the harassment context, according to attorneys that HR Dive spoke with during the firm's Annual Workforce Management Briefing in New York on Oct. 25, 2018.
#1: The effects of #MeToo will persist
"It's not just compliance with the letter of the law," Garland said. "It's the ongoing work of creating the right culture within an organization, having boards and the C-suite focus on the issues."
The law has been the same for a while, he added. Companies already know what constitutes harassment across several contexts, including that perpetrated by a manager or an executive. Organizational policies in dealing with harassment, however, should at least be given a second look, if HR hasn't done so already.
"Make sure that it's clear, and that it covers what it needs to cover; that it informs, properly, an employee where he/she should go," Garland said.
Investigations are also an area of focus. Crucially, it should be stated that employees will not face retaliation for reporting harassment. Employers should know whether to turn to an internal or external party to complete the investigation, and things shouldn't be rushed, Garland said.
"If they are confidential, then under what circumstances? What are the consequences of confidentiality? We'll probably continue to see some discussion around pre-dispute mandatory arbitration programs." The latter is receiving bipartisan attention, but Garland said he doesn't expect to see much action on the issue in the near future.
#2: Expect continued pushes for equity, equality at work
The attorneys said they expect to see a continued emphasis on reducing inequality between male and female workers and between workers of different socioeconomic backgrounds in many areas, including wages and advancement opportunities. But they stopped short of endorsing use of the U.S. Department of Labor's self-reporting tool, the Payroll Audit Independent Determination (PAID) program.
"I would not advise clients to file on PAID," said Jeffrey H. Ruzal, a member of the firm. "I don't like the idea of handing data over to DOL." But he does recommend that clients conduct self audits.
Garland pointed to the work done by Facebook chief operating officer Sheryl Sandberg and other business leaders as a signal employers are taking pay equity more seriously. "One of the challenges for employers, they mention it to me all the time, is 'how do we keep up?,'' Garland said. "I think we'll see no shortage of activity in that area."
#3: Timekeeping tech brings new questions
Though Ruzal and fellow member of the firm Michael S. Kun have recommended the use of software to track when employees clock in and out, there are some legal calculations to make, especially when using a third-party vendor.
For Kun there are two risks to consider: 1) Is the tech located on the employee's own device(s), and if so, does use of that tech impact his or her data plan?; 2) How can employers operate the tech knowing that employees may "game the system," and can they deal with a situation in which it's the employee's word against the employer's?
That said, Ruzal thinks such software especially useful for those in the gig economy, as it can be difficult to determine the number of hours worked in the gig context without a tech solution. But both he and Kun stressed the importance of communicating about the use of solutions before and after they've been deployed.
#4: Accommodation requirements will continue to shift
Joshua A. Stein, a member of the firm, and Nancy Gunzenhauser Popper, an associate, noted the particular difficulties employers face when trying to accommodate workers with disabilities.
"When we're talking about accommodations in the disability context, I think there are a few things people have problems wrapping their head around," Stein said. Perhaps most difficult is getting around the idea that persists in other areas of compliance, namely the idea of "treating everyone the same." If employers find something that works, they're likely to use the same strategy many times over for contexts like ethnicity and gender.
"In this context, you're doing it completely backwards," Stein said. "The idea is, no, here you may and probably do have to treat someone differently, better and alternative in order to level the playing field and allow them to perform the essential functions of their job, and you're making context-based, very specific, individualized inquiries about the person."
Much has been written about the federal-level circuit court split regarding leave as a reasonable accommodation under the Americans with Disabilities Act. That's without getting into legislation and rulings happening in states and localities. For example, "indefinite leave for disability accommodation is something that New York courts have found could be reasonable," Popper said.
One growing form of accommodation is remote work, and thanks to new technologies and ways of performing work, this accommodation can be applied to an increasing number of jobs. Though some professions are necessarily performed at a separate site or locale, that's no longer the case for many professions (including HR), Stein said. "It's going to be harder to say 'no' now."
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