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Tag: Gender Identity Discrimination

2020 Labor & Employment Law Predictions Reviewed

It is that time of the year again! The time to review my 2020 labor and employment law predictions from last year to see how well they did or did not hold up. This year’s predictions are a special kind of train wreck with how COVID-19 totally changed the outcome of many of all of these predictions.

Below are my 2020 labor and employment law predictions and my review of them.

 1. Minimum Wage Increases Will Occur in a Number of States and Ballot Initiatives Will Be Undertaken to Get Them on the Ballot in Additional States

Florida, as I predicted, passed the $15 minimum wage ballot initiative with 60.82% of voters voting to pass the measure and 39.18% voting to reject the measure. A 60% supermajority was needed for the bill to pass.

Virginia passed a minimum wage law and the increase is set to take effect on May 1, 2021. Originally, the increase was to occur on January 1.

 The other ballot initiatives for minimum wage increases or minimum wage increase related issues in Arizona, Idaho, and Missouri did not make it on the ballot.

 This is something that we could see expanded into the Biden administration as he supports a $15 minimum wage. It will depend on the outcome of the senate races.

 2. Retail Closures and Other Layoffs Continue to Remain High or Accelerate

This prediction turned out to be true, but not for the reasons that I initially thought. The surge in bankruptcies and layoffs is due overwhelmingly to the coronavirus pandemic, the lockdowns, and individuals voluntarily cutting back on their shopping and outings.

According to Retail Dive, over 29 major retailers have declared bankruptcy this year compared to only 17 from last year. In 2019, over 9,500 stores closed. There is not a final count yet for this year, however, it seems likely that this will be one of the worst years since the Great Recession and maybe even the Depression.

As a result of the pandemic, about 1 out of 3 restaurants are expected to close. Approximately 100,000 businesses that temporarily shut down are now out of business (note some of these businesses could have more than one location).

Contrary to the beliefs of many people, there has been a lot of lost capital and it will take years for the economy to recover to where it was at the end of 2019. In addition, 65% of Americans think the recovery will take more than a year, and the Congressional Budget Office puts the time to recover at one decade. We will be dealing with the financial impacts of COVID-19 for a long time.

3. Onboarding and Employee Retention Continues to Grow in Importance

 Onboarding did become more important than in 2019, but not for the reasons that I initially stated. In 2019 unemployment was at record lows and median household income was up 6.8% from the prior year to $68,700. All of that changed this year as millions of people reported job losses. Onboarding is more important due to the remote nature of many workplaces, and the need to train new employees on practices regarding COVID-19 became crucial.

You can read more about onboarding in my past post.

 4. The Governmental Agencies Gear Up for the Election by Releasing a Lot of New Regulations Before the Election Happens

 This one was an easy prediction. It happened when Obama finished his term and it happened under Trump.

 Among the regulations that are being finalized are the Department of Labor’s rule on independent contractors. There are several others, but not all are related to labor and employment.

 Whether these are overturned through the Congressional Review Act will be determined by the Senate elections in Georgia and who controls the Senate.

5. Candidates Push Their Election Agendas Which Will Give us a Peek into the Labor and Employment Landscape in 2021

This is obvious again. Rather than spending time on Trump’s agenda, which has advanced a lot over the last few years, let’s turn to Joe Biden since he will become the next president. He has outlined a lot of proposals on his campaign site:

○  ban employers’ mandatory meetings with their employees, including captive audience meetings in which employees are forced to listen to anti-union rhetoric; and

○  reinstate and codify into law the Obama-Biden Administration’s “persuader rule” requiring employers to report not only information communicated to employees, but also the activities of third-party consultants who work behind the scenes to manage employers’ anti-union campaigns. 

  • “He will ensure federal contracts only go to employers who sign neutrality agreements committing not to run anti-union campaigns.”
  • He supports card check so that if a majority of employees sign an authorization card, then they can form a union without an election.
  •  End right-to-work laws that allow workers that don’t want to join a union the right to not be forced to join one. (read more about these here)  
  • Permit intermittent strikes
  • Allow independent contractors to bargain collectively
  • Increase the minimum wage to $15
  • Eliminate non-compete clauses
  • End mandatory arbitration clauses

 There will be a seismic shift in labor and employment law under Biden.

6. Union Elections and Organizing Increases this Year Especially in the Tech Sector

 This is another prediction that came true. Kickstarter became one of the first tech unions this year. There has also been a spark in interest in unions within the tech sector due to the pandemic but some think that the unions have not done enough to organize this segment of the population.

7. More States Pass Employment Related Laws- Especially Variations of the Independent Contractor Law that California Adopted (the ABC Test)

 This one did not come to be.

Governor Cuomo expressed support for the ABC test in January 2020, but the task force that would have examined the issue was ultimately scrapped because of the COVID-19 crisis. It does seem likely that they will get to it at some point in the future.

The closest it came to fruition was the election of Joe Biden, who supports the ABC test at the federal level.  

 As a reminder from my past post, the elements of the ABC test are:

  1. The worker is free from control (they determine how to do the work),
  2. The work is outside the usual business of the company, and
  3. The worker is customarily engaged in an independently established trade occupation, or business.

It is difficult for many workers to meet all three elements.

8. Mental Health Issues in the Workplace Become More Important

 This is the saddest prediction that came true. The coronavirus has affected everyone. It is probably one of the few events from the last 100 years that has affected practically every single person throughout the entire world.

Its effect on mental health is dramatic and tragic. During late June of 2020 a survey by the Centers for Disease Control showed that 40% of adults struggled with mental health and substance abuse; 10.7% of adults had thoughts of suicide compared to 4.3% in 2018; 25.5% of adults ages 18-24 considered suicide; and 13% of adults have started or increased substance abuse. We are a society in crisis. Workplaces need to address these issues to help their employees cope, which in turn will help employees to be better.

 9. There will be a Ton of Issues Around Free Speech and the Workplace (i.e. It is an Election Year)

It was an election year and this was spot on.

According to a survey done at Zety , 83% of people talk about politics at work. 

It is not just employees that have trouble avoiding political discussion (or getting in trouble when the discussion goes too far). One CEO emailed 10 million customers urging them to vote for Biden. Goodyear got a lot of backlash this year when it used MAGA hats as an example of items that are prohibited in the workplace. They clarified that this was an example of all items related to political speech (note that some political speech would invoke rights under the NLRA and would be protected).

There was a lot of controversy about politics in all aspects of life. In fact, according to a survey conducted for the American Psychological Association, 68% of adults indicated that the 2020 U.S. presidential election was a significant source of stress in their life.

10. The Cases Before the Supreme Court Put Increased Focus on Religion, Transgender Issues, and Sexual Orientation in the Workplace

As I mentioned in my past post, three of the Supreme Court cases last term were about religious issues.

There have been a few cases this year concerning religion, sexual orientation and the workplace (as a result of the Supreme Court’s 2019 Bostock v. Clayton decision that made discrimination based on sexual orientation and gender identity illegal under Title VII), but most of them have been overshadowed by COVID. Virginia enacted a law this year to make discrimination based on gender identity and sexual orientation illegal.

There are three cases before the Supreme Court around religious issues this term (Tanzin v. Tanvir, Fulton v. City of Philadelphia, and Uzuegbunam v. Preczewski) shows the tension and need for clarification around legal matters involving religion. None of these cases deal directly with labor and employment law, but they may shed light on how the court will rule on future cases that do.

11. States Continue to Implement Restrictions on Noncompetition Agreements

This one barely came true. One state (Virginia) enacted new laws concerning non-competes this year.

The law will prohibit non-competes for employees whose average weekly wages are less than the average weekly wages for employees in Virginia. It applies to independent contractors as well, but it does not apply to employees that earn the whole or a majority of their compensation through commissions, bonuses, or other incentives.

The Washington D.C. Council has also voted to ban non-competes except for physicians. It is not clear yet whether the mayor will sign the act, but the Council has a veto proof majority, so it will not matter whether or not she vetoes the legislation. It will still have to go to the Congress for a 30-day review period.

Conclusion

2020 was a year to remember but not in a good way. It will be remembered more in the way that many people remember the years of the Great Depression. The year was consumed by the coronavirus/COVID-19. Three of the top ten google searches in 2020 were related to the virus. Hopefully, 2021 will be a much better year. Wishing you and yours a safe and happy new year! 

The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

2021 Texas Legislative Session Labor and Employment Law Bills

Image of a Texas flag to represent the opening of the 87th Legislative Session.
Photo by Adam Thomas on Unsplash

It is something that occurs once every two years. No, this is not a post about elections or the World Test Championship (it is not what it sounds like and is actually pretty awesome). I’m talking about the Texas Legislative Session beginning and the release of their proposed bills. Texas is unique in that the legislature only meets once every two years unless the governor calls a special session.

In this post, we will explore some of the bills that have been introduced so far this legislative session that relate to labor and employment. I plan to update this post once the deadline to introduce new bills ends and probably will do a follow-up post if anything noteworthy passes. I am not going to include any bills related to health insurance or Medicaid, marijuana, or those that are specific to state employees, even though these affect labor and employment law. You can view all of the bills that have been proposed so far here.  

As the session has now ended, you can read my review of the bills that passed here: https://texaslaborlawblog.com/texas-2021-labor-and-employment-legislative-update/

This post will focus on those bills that concern the traditional areas that concern labor and employment such as sexual harassment, wage and hour laws, the minimum wage, and discrimination. Due to the number of bills, I am only including a brief summary in addition to that already provided by the legislature with what I consider the highlights of the respective bill.

Sexual Harassment

HB 21Caption:Relating to the statute of limitations applicable to a sexual harassment complaint filed with the Texas Workforce Commission.

The bill essentially allows a person to file a complaint for sexual harassment with the Texas Workforce Commission within 300 days of the alleged sexual harassment rather than within 180 days. This will allow parties to file more claims.

SB 45Caption:Relating to the prohibition against sexual harassment in the workplace.
HB 48Caption:Relating to the prohibition against sexual harassment in the workplace.
   

The above house and senate bills essentially define what constitutes sexual harassment within Chapter 21 of the labor code and add liability for a party if they knew or should have known that sexual harassment was occurring and failed to take immediate and appropriate action when they had that knowledge. It tracks the language currently in Section 21.1065, which deals with sexual harassment for unpaid interns, however, the new language applies to all employees.

Hair Style Discrimination

HB 38Caption:Relating to discrimination on the basis of hair texture or protective hairstyle associated with race.
HB 38Caption:Relating to discrimination on the basis of hair texture or protective hairstyle associated with race.
HB 392Caption:Relating to discrimination on the basis of hair texture or protective hairstyle associated with race.
SB 77Caption:Relating to discrimination on the basis of hair texture or protective hairstyle associated with race.

At the time of this article, six states have enacted similar laws regarding hairstyle discrimination and 22 states have considered it. These laws ban discrimination based on hairstyles that are typically associated with a certain race (generally these laws list braids, locks, and twists as forms of hairstyles that should be protected). It is possible that bills that have already passed in other states could be expanded or clarified to include other hairstyles that may be traditionally associated with races or ethnic groups.

Sick Leave

HB 87Caption:Relating to requiring certain employers to provide paid sick leave to employees; providing administrative and civil penalties.

The above bill would require employers to provide sick leave for various uses. Employees would be able to earn one hour of paid sick leave for each 30 hours worked.

Immigration

HB 101Caption:Relating to civil liability of municipalities for failure to comply with immigration detainer requests.
HB 182Caption:Relating to the repeal of certain provisions governing state and local enforcement of immigration laws and other provisions related to immigration law.
HB 177Caption:Relating to the enforcement by certain entities of state and federal immigration laws with respect to persons younger than 18 years of age. 

The above bills are not really employment law bills, but they concern the enforcement of immigration laws within the state. There has been a lot of controversy and debate around cities, counties, and states cooperating with immigration officials. These bills weigh in on this debate around immigration.

Occupational Licensing

HB 139Caption:Relating to state occupational licensing of certain military veterans and military spouses.
SB 145Caption:Relating to state occupational licensing of certain military veterans and military spouses.

These bills deal with the occupational licensing requirements for educators and make it easier for military veterans and spouses to establish residency to obtain a license. The military itself has sought to help military veterans and spouses, as it can be difficult to get an occupational license quickly. You can read the Department of the Treasury and Department of Defense report on the issue here. The issue affects a lot of military spouses that follow their partner throughout their military career, which oftentimes requires frequent relocation..

Sexual Orientation and Gender Identity Discrimination

  HB 188Caption:Relating to the prohibition of certain discrimination based on sexual orientation or gender identity or expression; providing an administrative penalty.
SB 233Caption:Relating to the prohibition of certain discrimination based on sexual orientation or gender identity or expression; providing an administrative penalty.

These bills would make discriminating against someone on the basis of their gender identity or sexual orientation unlawful and establishes a penalty and a cause of action against employers that do so. As a reminder, Title VII now protects individuals from discrimination on the basis of their sexual orientation and gender identity provided that Title VII applies to the workplace. 

Reproductive Discrimination 

HB 698Caption:Relating to a prohibition of employment discrimination on the basis of reproductive decisions and certain employment agreements limiting reproductive decisions.

This bill prevents the employers from discriminating against employees on the basis of marital status during pregnancy, the use of IVF or other assisted reproduction, the use of contraception or a specific form of contraception, or the “obtainment or use of any other health care drug, device, or service relating to reproductive health.” 

Workplace Violence

HB 326Caption:Relating to workplace violence prevention in certain health care facilities.

The above bill is meant to help curtail workplace violence at health care facilities by requiring these facilities to create a workplace violence prevention committee or authorize an existing facility committee to develop and implement a workplace violence prevention plan.

Discrimination

HB 360Caption:Relating to a prohibition on certain discrimination in employment compensation.

This bill bans companies from asking about wage history to prospective hires and makes it illegal to pay an employee less than an employee of the opposite sex for the same or substantially similar work unless it is based on a seniority system, merit system (meaning a system that measures earnings by production) or a bona fide factor other than sex.

HB 318Caption:Relating to the prohibition of certain employment discrimination regarding an employee who is a volunteer emergency responder.

The bill provides certain protections to volunteer emergency responders that are absent from or late to work because they were responding to an emergency in their capacity as a volunteer emergency responder.

HB 194Caption:Relating to continuing education in cultural competence and implicit bias for certain physicians.
HB 197Caption:Relating to medical education coursework and training for physicians in cultural competence and implicit bias.

HB 194 and 197 would require bias training by doctors and medical students to renew or obtain their medical licenses.

Safety

HB 263Caption:Relating to rest breaks for employees of certain contractors with a governmental entity; providing an administrative penalty. 

This bill would require government contractors to provide at least a 10-minute break within every four-hour period of work among other requirements.

HB 205Caption:Relating to safety requirements for amusement ride operators.

Workers Comp

HB 243Caption:Relating to a cost-of-living increase applicable to death benefits paid under the workers’ compensation system.
HB 396Caption:Relating to the eligibility of nurses for workers’ compensation benefits for coronavirus disease (COVID-19) and payment of those benefits

The above bills are self-explanatory and should be read in full by anyone to whom they may apply.

Family Leave

HB 247Caption:Relating to employment leave for certain family or medical obligations.

The above bill requires employers to provide at least 30 days of leave to employees that have worked for at least one year for a variety of potential uses. These may include the birth of their child, their own illness, and other permitted reasons that are similar under the FMLA. 

HB 284Caption:Relating to requiring certain employers to provide paid leave to employees; providing civil and administrative penalties.

This bill would allow employees to earn up to one hour of paid leave for each 30 hours worked, up to a maximum of 40 hours per calendar year.

Predictive Scheduling Law

HB 401Caption:Relating to the requirement that certain employers provide advance notice of employee work schedules.

This is one of the predictive scheduling laws that are springing up across the country.  It requires a food and general retail establishment to notify hourly employees of their scheduled shifts at least two weeks before the shifts begin.

Wage and Hour Violations

HB 405Caption:Relating to the period during which an employee may file a claim for unpaid wages with the Texas Workforce Commission.

The bill basically grants employees one year, rather than 180 days, to file a wage claim. Claims would need to be filed by the first anniversary of when the wages claimed were due.

HB 190Caption:Relating to a database of employers penalized for failure to pay wages or convicted of certain criminal offenses involving wage theft.

This bill states that employers would be put on a publicly available database for violations of certain wage claims.

SB 57Caption:Relating to the period during which an employee may file a claim for unpaid wages with the Texas Workforce Commission.

The bill basically grants employees one year, rather than 180 days, to file a wage claim. Claims would need to be filed by the first anniversary of when the wages claimed were due.

HB 419Caption:Relating to certain unlawful employment practices regarding compensation.

This bill essentially prohibits employers from using an employee’s wage history to determine whether to hire an applicant, the wages to pay an employee, whether to employ the person, and whether to promote the employee.

Minimum Wage

HB 60Caption:Relating to the minimum wage.
HB 224Caption:Relating to authorization for a county or municipality to establish a local minimum wage.
HB 250Caption:Relating to establishing a minimum wage for school bus drivers.
HB 255Caption:Relating to adjusting the minimum wage annually based on the consumer price index.
HB 383Caption:Relating to the minimum wage.
HB 615Caption:Relating to the minimum wage.
HB 731Caption:Relating to the minimum wage.

All of these laws relate to increasing the minimum wage to varying degrees. They are probably not that likely to pass.

Rights for Paroles and Releases (Former Inmates)

SB 82Caption:Relating to job interview restrictions for releasees from the Texas Department of Criminal Justice.
SB 83Caption:Relating to the timely processing of certain requests relating to the employment of a person released on parole or to mandatory supervision.

Both of these bills are meant to help parolees and released individuals get jobs. These probably stand a good chance of passing. The plight of inmates and parolees who have difficulty getting jobs after they are released got a lot of publicity this year after the inmate firefighters in California served so well in fighting the fires there. Context: A bill passed this year that allowed these prisoners to get firefighting jobs after release.

Pensions

SB 104Caption:Relating to the state contribution to the Teacher Retirement System of Texas.

This bill requires the government to contribute a minimum of seven percent to a maximum of ten percent rather than a minimum six percent to the retirement system for teachers.

SB 106Caption:Relating to a cost-of-living adjustment applicable to certain benefits paid by the Teacher Retirement System of Texas.

The bill states that the government will make a one-time cost of living adjustment payment to someone receiving a monthly death or retirement benefit within the Teacher Retirement System. 

SB 202Caption:Relating to the payment of certain employer contributions for employed retirees of the Teacher Retirement System of Texas.

This bill prevents school districts from passing on the costs of certain payments to retirees through a fee or other method. 

And Lastly, The Most “Texas” Bill this Legislative Session

In what is undoubtedly making me question everything that I know as a Texas transplant, Texas has yet to make the Bowie knife the official state knife of Texas.

HCR 1Caption:Designating the Bowie knife as the official state knife of Texas

A similar bipartisan resolution was vetoed in the last legislative session due to some factual errors in the language within resolution. Let’s hope that those errors have been corrected this time, so that the Bowie knife can assume its rightful place as the official state knife of Texas.

Conclusion

Most of these bills will not pass. The 87th legislative session is likely to focus on the issues related to COVID. Right now there are hundreds of bills between the House and the Senate (not counting resolutions). Some of these bills may be more likely to pass in future legislative sessions (e.g. those related to marijuana, gender identity, and sexual orientation discrimination), but time will tell what happens. 

The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

2020 Labor & Employment Law Predictions

Image of a man holding a "Happy New Year" sign to kick off the 2020 labor and employment law predictions for the Texas Labor Law Blog
Photo by Kelly Sikkema on Unsplash

2020 has arrived and so have my 2020 labor and employment law predictions. One side note, I am not going to repeat my 2019 labor and employment law predictions that are likely to happen in 2020 (new states that protect medical marijuana use outside of work, increased sexual harassment charges, the elimination of the H-4 EAD program, the NLRB issuing the joint employer standard, more states passing paid family leave, independent contractor issues arising, notices of inspection (I-9 inspections) increasing, and the Supreme Court’s decision on DACA.) So what’s new in 2020? Let’s dive right in.

1. Minimum Wage Increases Will Occur in a Number of States and Ballot Initiatives Will Be Undertaken to Get Them on the Ballot in Additional States

Florida is one state that will have a ballot initiative to raise the minimum wage to $15 per hour. The bill would raise the wage to $10 by September 30, 2021 and then increase it by one dollar every year until the wage reaches $15 in 2026. It is likely to pass as 25 out of the 27 ballot initiatives to increase the minimum wage were approved from 1988 to 2018

Arizona (Arizona Hospital Worker Minimum Wage and Insurance Regulations Initiative), Idaho (Idaho Minimum Wage Increase Initiative), and Missouri (Missouri Prohibit State Preemption of Local Minimum Wage and Benefits Laws Initiative) also have potential ballot measures related to the minimum wage next year. Each of them are in the gathering signatures stage and more states could potentially follow suit. Arizona’s law is for hospital workers, Idaho’s law would raise the minimum wage to $12 by 2024, and Missouri’s would prohibit the state from stopping local governments from enacting their own minimum wages.

2. Retail Closures and Other Layoffs (Perhaps in the Energy Sector) Continue to Remain High or Accelerate

Ok. So, this is not exactly a labor and employment law prediction, but it affects employment law. Over 9,000 stores closed in 2019 (more retail stores closed than opened). Even if the number of retail closures is not as high next year, there is still the probability that there will be a number of closures

In the world of oil and gas, there are a lot of companies with debt maturities coming due in 2020 or 2021 (see this article from the Wall Street Journal discussing the $120 billion debt wall these companies will face through 2023), and oil prices have been below the break-even point for many drilling sites. It is possible that there could be a number of layoffs in that industry. Of course, the situation in Iran (the death of Soleimani and Iran’s reaction to his death), any decisions from OPEC, and any possible economic slowdowns or other geopolitical issues could change this.

Unemployment is still low and there are more job openings than there are people that can fill them. If a recession takes place, then everything will change.

The workplace and workforce is changing even if the situation for retail stores and the oil and gas industry improves and we avoid a recession. Many people have read articles about the jobs that supposedly won’t exist in the future, which is something to keep an eye on. In short, layoffs are a part of life and the economy. We can expect them to continue or increase in 2020.

3. Onboarding and Employee Retention Continues to Grow in Importance

No matter what happens next year with layoffs, there will be a lot of workers that will need to be trained, retrained and onboarded. Companies are finally starting to recognize they need to find, adequately train, and keep their employees because unemployment is at a low. In short, businesses are going to want to find the right people, train them well, and try to keep them given the lack of qualified and available employees. Remember, onboarding is more than just orientation. It is a long process to help workers become established in an organization and usually occurs over an extended period of time through a set process to help the employees adjust to their new job. Onboarding also takes more importance as certain jobs are eliminated, new technology is brought into a company, and workers change positions. 

The Bureau of Labor Statistics found that “Over the 12 months ending in October, hires totaled 69.8 million and separations totaled 67.4 million, yielding a net employment gain of 2.4 million. These totals include workers who may have been hired and separated more than once during the year.” Again, there were 69.8 million people hired between October 2018 and October 2019. Onboarding, training, and employee retention have gained in importance over the past few years and will continue to do so.

4. The Governmental Agencies Gear Up for the Election by Releasing a Lot of New Regulations Before the Election Happens

The Congressional Review Act allows a new Congress to disapprove of any new regulation within a 60 legislative day window by a majority vote. If the vote succeeds, then the rule does not go into effect. It was only used once before the Trump administration. The Republican Congress under Trump used it 14 times.

The Trump administration and the agencies will push out new regulations and decisions to avoid their regulations being undone either by the Congressional Review Act or by the heads of the agencies after the election (assuming that a Democrat is elected). Many agencies that previously did not engage in much rulemaking are also engaging in rulemaking to avoid their new rules being overturned easily (through decisions). You can look to the NLRB (joint employer rule) and the DOL (overtime rule and joint employer rule) as prime examples of this.

5. Candidates Push Their Election Agendas Which Will Give us a Peek into the Labor and Employment Landscape in 2021

I wrote awhile back about the Democratic candidates. At that time there were around 25 different candidates. Most of those have basically fallen away. We can expect that President Trump and the eventual Democratic candidate will propose a number of different ideas that will affect the workplace.

I expect President Trump to push limiting immigration based on the belief that this will protect American jobs and perhaps he will also propose some kind of paid family leave program as he discussed in his 2016 campaign.

The Democratic candidate can be expected to support raising the minimum wage to $15, the PRO act (that would transform union organizing, eliminate right to work states, permit card check (union elections would not need to happen if enough authorization cards were signed), expand the definition of ‘joint employer’, permit secondary boycotts (targeting neutral worksites), adopt a more restrictive definition of independent contractors, and much more), and a paid family leave program. Depending on the final Democratic candidate, more proposals could go into effect. Moreover, the success of these proposals will depend on the final composition of the House and Senate (in addition to who controls the White House).

6. Union Elections and Organizing Increases this Year Especially in the Tech Sector

Unfortunately, I did not get to publish this blog post before this prediction started to come true (I swear I wrote this before I heard about the CWU trying to organize video game developers, you can ask my kids, but who can trust anyone under 5 years old…). The tech sector is going to become an increasing target of union organizing. Unfortunately, many companies do not treat their employees right (they work long hours, their concerns are not addressed, and many of their coworkers are let go for what feels like no reason to them). Mistreated employees are always the biggest threat and cause of union organizing. The tech sector is ripe for organizing because many companies fit this model.

7. More States Pass Employment Related Laws- Especially Variations of the Independent Contractor Law that California Adopted (the ABC Test)

Employment law has become more fragmented and more influenced by multiple sectors of government (federal, state, county, and city) with a greater influence at the local level than ever before. This is going to continue. This fragmentation affects almost every area of employment law (labor law has not been affected to the same degree). For example, a number of states have their own overtime salary threshold so the new federal overtime rule does not affect them and a number of states have begun to tighten their independent contractor rules (which means that companies must follow these complex rules for each state that they operate in).

This one is not so much a prediction as it is a statement of fact. With the current administration being more business friendly (and depending on the results of the election in 2020, that may continue for 4 more years) the trend of employment law is increasingly being done at the state and local level.

8. Mental Health Issues and the Workplace Become More Important

Nearly 1 in 5 adults had a mental illness in 2016.  Carley Sime at Forbes wrote “Mental health and substance abuse cost US businesses between $80 and $100 billion annually.” That is a cost that companies cannot ignore. In 2020 and throughout the decade more companies will recognize this cost and offer treatment and solutions to their staff.

The good news is that more companies are discovering that treatment works. The Center for Workplace Mental Health found that 80 percent of employees treated for mental health problems reported improvements in both their productivity and job satisfaction. 

More companies are recognizing the effects of mental health and wellbeing on their workforce and taking steps to prioritize these issues and ensure their employees feel supported.

9. There will be a Ton of Issues Around Free Speech and the Workplace (i.e. It is an Election Year).

This one feels like cheating. It hardly counts as a prediction. It is an election year.

Trump is a polarizing figure. Politics seems more divided now than any time in the last twenty years or so. “A 53-point [difference] separates the percentage of Republicans (65%) and the percentage of Democrats (13%) who believe the United States is headed in the right direction, according to data from the latest Economist/YouGov poll.”

We may be more divided now than any time since Thomas Jefferson and John Adams faced off (you really need to watch this video on what they said about each other in the campaign to understand how bad it was) With this being an election year, we also get to experience attack ads (here is a history of attack ads), which means that more people will have more fodder to attack supporters of one candidate.

Additionally, from a workplace perspective, the election will likely cause more people to talk about politics at work, which can be another polarizing situation you may want to be smart about. You can read about what to do here. This is something that will probably only get more divisive before it improves (some time after the 2020 presidential election but before the 2022 midterms). With the impeachment and the bitterness of this election we have reached a bit of a tipping point in divisive politics and can perhaps expect them to be more divisive and interfere with the workplace more than ever. 

10. The Cases Before the Supreme Court Put Increased Focus on Religion, Transgender Issues, and Sexual Orientation in the Workplace.

With a Supreme Court decision on whether sexual orientation is a protected characteristic and whether transgenderism is protected (see this previous article discussing Bostock v. Clayton County, Georgia and Altitude Express Inc. v. Zarda (sexual orientation discrimination cases)) and (R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission (gender identity/transgenderism discrimination case)) this is an issue that will see more traction this year. Once these decisions come out there will be talk in many workplaces about sexual orientation, transgender issues, and religion in the workplace.

The Supreme Court cases on the ministerial exception add to this issue. Here is a breakdown from SCOTUSblog on those cases:

In Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel, the justices will consider the scope of the “ministerial exception,” a court-created doctrine that prohibits courts from reviewing employment decisions by religious employers involving their ministers. Under the exception, courts must determine which employees serve a “ministerial function.” In these cases, which will be argued together, two California Catholic schools are challenging rulings by the U.S. Court of Appeals for the 9th Circuit that teachers who sued the schools after the teachers’ contracts were not renewed were not, despite their religious duties, “ministers” for purposes of the exception. The schools tell the justices that the issues presented in the two cases are “vital to the daily operations of religious organizations,” and that “getting it right is crucial in protecting church-state relations.”

All of these Supreme Court decisions will cause a lot of talk about the place of religious beliefs and how they relate to the issue of sexual orientation and transgenderism/gender identity.

11. States Continue to Implement Restrictions on Noncompetition Agreements

This is something that is already happening in a number of states and now the FTC has also begun to weigh in on the issue.  The Federal Trade Commission recently held a public workshop to “examine whether there is a sufficient legal basis and empirical economic support to promulgate a Commission Rule that would restrict the use of non-compete clauses in employer-employee employment contracts. This follows a labor market workshop hosted by the Department of Justice’s Antitrust Division in September 2019.”

Washington has a law that went into effect on January 1 that prohibits noncompetes for employees that earn less than $100,000 and independent contractors that earn less than or equal to $250,000.

Maryland also enacted a similar law last year that prohibits noncompetes for “employees earning equal to or less than $31,200 annually or $15 per hour.”

Maine’s law went into effect in 2019 and prohibits employers from entering into a noncompete agreement with an employee if they earn wages at or below 400% of the federal poverty level.

New Hampshire passed a law in 2019 that prohibits employers from entering into or enforcing agreements with low-wage employees (those earning less than 200% of the federal minimum wage currently $14.50 an hour).

Rhode Island’s law went into effect on January 15. It prohibits noncompetes for nonexempt employees, certain graduate and undergraduate students, people 18 and under, and low wage employees (those earning less than 250% of the federal poverty level currently $600.48 per week ($31,225 / 52))

Conclusion

2020 is going to be a big year for employment and labor law issues. Employers should prepare for these upcoming changes to ensure that they are staying a step ahead of the competition. As usual, these issues will be followed this year at the Texas Labor Law Blog, and I hope you all stay ahead of the curve this year!        

The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.

The information provided is my own and does not reflect the opinion of my firm or anyone else.                                                                                                                                                                                    

Brett Holubeck (of Houston, Texas) is the attorney responsible for this site.