Employment Law This Week®: A Look Back and the Year Ahead

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This Employment Law This Week® Monthly Rundown features a recap of the biggest employment law trends from 2018 and a look ahead at what’s to come in 2019. Specifically, this episode includes the following:

1. #MeToo Movement in the Workplace

For employers, 2018 was the year of #MeToo. While the movement began in the fall of 2017, last year, it touched See more +

This Employment Law This Week® Monthly Rundown features a recap of the biggest employment law trends from 2018 and a look ahead at what’s to come in 2019. Specifically, this episode includes the following:

1. #MeToo Movement in the Workplace

For employers, 2018 was the year of #MeToo. While the movement began in the fall of 2017, last year, it touched every aspect of employment law—from harassment training to arbitration.

Jennifer Gefsky (Member of the Firm, Epstein Becker Green):

“I think if the #MeToo movement taught us one thing, it’s that employers face significant liability and risk in the event that allegations are made against any employee or supervisor or the highest-level executive at the company.”

In 2019, we can expect to see more legislative action, particularly in the area of equal pay, where much of the #MeToo focus has shifted.

2. AI in the Workplace

In 2018, many employers put the potential of artificial intelligence (“AI”) into practice. AI is being adopted at a rapid pace across the country, and the changing landscape is creating complex concerns around workforce management.

Michelle Capezza (Member of the Firm, Epstein Becker Green):

“With the changes in automation and artificial intelligence being introduced into the workplace, employers really need to strategically plan for the future and determine what the future composition of their workforce will be.”

This year, we expect to see an increased focus on adjusting employee benefits programs for automation and AI, and, in reaction to the proliferation of this technology, increased attempts to protect employee privacy.

3. A Year of Transition

Indeed, 2018 was a year of transition, as the federal policy started to catch up with the political moment in Washington. We saw that in a hotly contested confirmation of Brett Kavanaugh to replace Justice Anthony Kennedy, cementing a 5-4 conservative majority on the U.S. Supreme Court.

Jim Flynn (Member of the Firm, Epstein Becker Green):

“Management and employers will, I think, have a friend in Judge Kavanaugh on the bench.”

We saw transition in the Department of Labor and, more slowly, in the National Labor Relations Board (“NLRB” or “Board”). The Board’s battle over joint-employer relationships continued right up to the end of 2018, when the U.S. Court of Appeals for the District of Columbia Circuit finally issued its decision in Browning-Ferris. To the surprise of many, the court did not reject the joint-employer standard that the 2016 Board used in that case, but remanded to the NLRB to clarify its application of the test to the facts. It remains to be seen whether this will have any effect on the proposed joint-employment rules published last September.

4. More Transition in 2019

We begin the year at an important inflection point. A standoff is brewing over several agency vacancies that require Senate confirmation. The Senate did not confirm Mark Pearce for another term on the NLRB, or Chai Feldblum for another term on the Equal Employment Opportunity Commission (“EEOC”). Both first served under President Obama and were nominated for new terms by President Trump in 2018. Both faced significant resistance from Republicans in the Senate and their nominations died when Congress ended its session last month.

Gender identity in the workplace, medical and recreational marijuana, data privacy—2019 promises answers to some big questions about how our workplaces will function going forward. We saw with the Epic ruling last year how the entire debate over class action waivers can seemingly be resolved in a single Supreme Court decision. Maybe the 2019 court will make its mark on employment law as well.

There is much for employers to anticipate in the year ahead, and Employment Law This Week will continue to keep you informed.

Watch the episode and subscribe for notifications: EmploymentLawThisWeek.com See less -

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