In this episode of The Proskauer Brief, partner Evandro Gigante and associate Arielle Kobetz discuss the labor and employment landscape in 2019, including some significant laws set to go into effect this year, as well as other legislative developments. They will highlight cases pending before the Supreme Court and what we can expect from the National Labor Relations Board (NLRB). Be sure to tune in for this 2019 preview.

Evandro Gigante:  Welcome to the Proskauer Brief, hot topics in employment and labor law. I’m Evandro Gigante, and I’m joined by Arielle Kobetz. Today we will discuss the labor and employment landscape in 2019, including some significant laws set to go into effect this year, as well as other legislative developments, cases pending before the Supreme Court, and what we can expect from the NLRB. Arielle, what is one of the biggest changes to the labor and employment landscape in 2019?

Arielle Kobetz:  Well, I’m not sure it’s a change necessarily, but I think we will continue to see activity in the #MeToo space, with continued emphasis on internal and external complaints, investigations and possibly litigation. For its part, the EEOC continues to focus on enforcing the federal anti-discrimination statutes in 2018, filing 66 harassment lawsuits in fiscal year 2018. 41 of which included allegations of sex harassment. This is more than a 50 percent increase in suits challenging sex harassment from fiscal year 2017. I think it’s fair to say that the trend is likely to continue into 2019. Given the impact of the #MeToo movement, many states and cities have passed new laws combatting sexual harassment in the workplace. For example, in addition to complying with new state laws requiring employers to implement written anti-harassment policies, and provide annual anti-harassment training to all employees, employers in New York City must also comply with the Stop Sexual Harassment Act, which takes effect on April 1, 2019. Under that New York City law, employers with 15 or more employees will be required to conduct annual interactive, anti-sexual harassment training for all employees who work more than 80 hours in a calendar year. Qualifying employers in California and Delaware must also provide anti-sexual harassment training to all employees by January 1, 2020, and then again every two years. Notably, in California, employers with at least five employees, must provide two hours of anti-harassment training to all supervisors, plus one hour of anti-harassment training to all non-supervisory employees every other year. The requirement to provide non-supervisory employees with training is new. In addition to these new sexual harassment laws, we will also see new leave laws take affect this year. Evandro, tell us about some of those laws.

Evandro Gigante: Certainly. Massachusetts Paid Family and Medical Leave Program will provide eligible employees with up to 20 weeks of paid medical leave for an employee’s own serious health condition. Employees eligible will also have access to 12 weeks per year of paid leave for family care purposes. After some political debate and negotiation, Michigan will also see its paid medical leave act take affect this year. Beginning March 29 of 2019, employers in Michigan with 50 or more employees will be required to provide paid medical leave for personal or family health needs for employees. Unlike the Massachusetts law, Michigan’s law will only require employers to provide 40 hours of paid leave per benefit year. Beyond leave laws, what other significant measures will be taking effect this year?

Arielle Kobetz: Well, Connecticut’s prohibition on salary inquiry histories took effect on January 1^st, and prohibits employers from asking about an applicant’s salary history unless the applicant has voluntarily disclosed such information. In addition, employers cannot prohibit employees from disclosing or discussing the amount of their wages or the wages of another employee that has been voluntarily disclosed by that other employee. Under the law, employees can bring a private right of action against violating employers, seeking compensatory and punitive damages, as well as attorney’s fees. This, of course, is similar to laws that already exist in other jurisdictions, such as California, Delaware, New York City and Massachusetts. In addition to laws taking effect this year, politicians around the country are calling for new legislative measures in their states. Evandro, why don’t you tell us about some of those?

Evandro Gigante: Lawmakers in California, Maine, Nebraska, New Hampshire, Vermont and Virginia have all introduced or announced plans to introduce paid family leave legislation. Now, while employees in California are already eligible for up to six weeks of paid family leave benefits, the new proposal would increase that benefit to six months. In terms of paid vacation, New York City’s Mayor Bill de Blasio recently proposed a law that would require private employers with five or more employees to provide up to 10 days of paid vacation to full and part-time employees each year. This is in addition to sick and safe leave entitlements that employees in New York City already receive. Arielle, what employment issues are making their way to the Supreme Court.

Arielle Kobetz: The Supreme Court is currently contemplating whether to grant review on a trio of employment discrimination cases involving sexual orientation and gender identity. While some circuit courts have held that Title VII’s prohibition against discrimination on the basis of sex, includes protections for sexual orientation and gender identity, others have not. The Supreme Court has yet to decide the matter. Likewise, the Supreme Court is weighing whether to grant cert to review the Ninth Circuit’s recent decision in Yovino v. Rizo. There, the Ninth Circuit ruled that under the equal pay act, salary history cannot be used as a factor for justifying a pay disparity between male and female employees. Evandro, what can we expect from the NLRB this year?

Evandro Gigante: Well, we may see the Board turn its attention back to its 2014 election rule, which modified the Board’s representation election procedures. Early last year, the Board sought and extended the timeframe for submitting feedback on whether the rules should be changed, but it has not yet taken action since then, so it remains to be seen whether these new rules will be issued. In a fairly recent development, the Board has modified the test for whether an individual is considered an employee or an independent contractor under the NLRA, in a case called Super Shuttle DFW, where the Board rejected the standard established in 2014, which actually limited the significance of an individual’s entrepreneurial opportunity when determining whether someone is an independent contractor or an employee. Instead, the Board has now returned to its traditional common law agency test, which applied prior to 2014. Not long after this decision was issued in January of this year, the Board’s chairman suggested that the Board may actually propose new regulations to further clarify the independent contractor versus employee analysis, so that is certainly something to be on the lookout for.

From a practical perspective, we’ll also see regional offices move away from practices that have been in place since the 1980’s concerning the case handling process. Last year, the NLRB’s general counsel Peter Robb issued a memorandum, which set forth goals to reduce case processing time at the board by five percent. To do so, the general counsel eliminated prior case processing guidelines and really granted the regions the discretion on how they would process cases in order to achieve that goal of a five percent reduction in processing time. The discretion granted to regions may result in a significant variation in how cases are processed in different NLRB regions across the country. Thank you for joining us on the Proskauer Brief today. Stay tuned for more insights on the latest hot topics in labor and employment law and be sure to follow us on iTunes, Google Play and Spotify.

Update: On February 25, 2019, after the recording of this episode, the U.S. Supreme Court vacated the Ninth Circuit’s decision in Yovino v. Rizo due to the death of Judge Stephen Reinhardt, stating that the appeals court should not have counted the vote of the ruling’s author because he died before the decision was issued.