Tag: I-9

2020 Labor & Employment Law Predictions

Published by Brett Holubeck on January 20, 2020

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.

New Employers Need a Hiring Checklist

Published by Brett Holubeck on January 22, 2019

Image of a "Come in. We're open" sign to show that the new business is open and to align with the theme that businesses need a hiring checklist. — Photo by Richard Balog on Unsplash

Alexandria Ocasio-Cortez’s campaign was fined $1,500 for failing to obtain the required worker’s compensation coverage from March 31, 2018, to April 30, 2018. As Congresswoman Ocasio-Cortez found out, being a new employer is not easy. There are tons of laws to follow, multiple entities that make and enforce the required rules and regulations, and tens of thousands of court cases explaining and refining these laws. Not only is it important to follow employment requirements because you do not want to break the law; ensuring your employees are equipped, prepared; and welcomed on their first (and every) day, has long-term implications for employee retention; satisfaction; and helps to prevent liability in the future. New employers need a hiring checklist.

What New Businesses Must Consider When Hiring New Employees: A Hiring Checklist

Let’s talk about some of the many tasks that new businesses need to do to ensure they do not make a mistake when they hire their first employee. (For the sake of this piece I am going to assume that the company has already created a legal entity, opened a company bank account, applied for an employer identification number, registered with any required state or local agencies, obtained any required business licenses, and is basically at the point of being ready to hire its first employee.)

Here is a hiring checklist that any new business should review when hiring its first employee:

1. Employers need an employee handbook. The employee handbook should outline the various requirements that employees must follow and explain what the company will do for its employees including that the company will follow all the required laws and regulations regarding employment. A handbook tells employees how to request leave, the discipline structure, how to report complaints, what company holidays will be, what benefits employee have, and any pertinent information that all employees need to know. This is the guide that helps employees know what is expected of them.

2. Companies need a plan to motivate employees. A motivated workforce performs better. A lack of employee engagement is responsible for $450-550 billion in lost productivity each year in the U.S. Here are some things to ask yourselves related to employee motivation:

How will employees grow at the company? If there is no room for employees to grow, then they will not be motivated and will eventually look for a new job. Helping employees grow can help retain your best employees, which improves your business. (This includes things like room for promotions, learning new skills, opportunities to manage or train, utilizing employee strengths, etc.)

How will you treat them as employees? Employees want and need recognition and feedback. You shouldn’t just talk to an employee when there’s a problem, in fact, you should share with them how you feel about their successes (formally and informally).

3. Make sure that employees fill out all of their required paperwork correctly. Think about the I-9s. Section 1 on the I-9 must be completed on the first day of the employee’s employment. Employers have three days to complete Section 2. You can review what to do here in my earlier post.

New employees also must complete the W-4 form for their tax withholding.

4. Businesses also need to run any necessary background checks, drug tests, motor vehicle reports, and other checks that are required for your particular business or these employees. You should get the employee’s written permission to run drug tests and background checks.

5. Employers also need to set some formal processes that the employees will follow (and great employers also include not only adequate, but exceptional, training). This training/support should detail for employees how they successfully do their jobs. What are the processes for things that require step-by-step actions to perform them correctly? Who do they report to in the event of a problem? Who do they refer people to based on particular needs? What are the communication norms and expectations within the business/department/team? Essentially, how do they do their jobs? You should not expect an employee to be able to exercise their own discretion to do their new job. Just like anything else, learning to do a job takes time.

Think about Chick-Fil-A. They have a very particular way they want their employees communicate with their customers. Rather than saying “you’re welcome” when a customer says, “thank you” every employee is instructed to say “my pleasure.” This is something that is readily identifiable and special about Chick-Fil-A. People remember it. There are also a slew of memes about it. Employees would not do this with the consistency required for this brand recognition without the training and feedback they receive.

6. Employers need a personnel file and a recordkeeping system for the employees. When you hire an employee, you need to ensure that they sign any necessary documents for your company including:

Noncompetition and nondisclosure agreements
Employee handbook acknowledgement (stating that the employee received a copy of the handbook)
Life and health insurance plan information documents
401(k) documents

7. Ensure that the workers have a safe place to work and the tools that they need. Nothing makes an employee feel unwelcome more quickly then showing you didn’t put any thought into their arrival, first day, and needs. Do you have enough equipment for the employee on their first day? Is their computer set-up? Is there someone to train them? Have you showed them where to put their lunch? There is nothing worse than feeling like an afterthought on your first day of work because no one was told that you were starting, or nobody cared to figure out how to orient you. It makes you feel a bit like Milton when he gets moved down to the basement in Office Space.

8. And don’t forget to get worker’s compensation coverage for your business. Workplace accidents can get expensive.

Conclusion

Hiring a new employee is incredibly important, which is why all companies should have a hiring checklist. If a company fails to properly prepare for a new employee, then you start with an employee that already feels out of place and unwanted. The company may also set itself up for a lot of liability later on by not adequately ensuring successful orientation and onboarding. Great training, preparation, and navigation of the laws can ensure success for employer and employee alike.

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

2019 Labor and Employment Law Predictions

Published by Brett Holubeck on January 4, 2019

2018 was a whirlwind year for labor and employment. There were 3 major Supreme Court decisions. One decision concerned overtime exemptions to the Fair Labor Standard Act where the court found that the exemptions should be interpreted broadly rather than narrowly. The Janus decision held that public sector employees could not be forced to pay an agency fee (public sector employees do not need to pay anything to a union that represents them). Finally, the Court found in the Epic Systems case that employers can require employees to settle employment disputes through arbitration agreements without violating the National Labor Relations Act.

While not as many changes will occur this year in labor and employment, there are still a number of exciting changes that could occur. Here are 10 labor and employment law predictions that I believe will happen next year.

Sexual Harassment Lawsuits Will Increase

The #Metoo movement is not going away in 2018. The preliminary data from the EEOC showed that charges alleging sexual harassment increased by more than 12% from 2017 into 2018. Unfortunately, this is an issue that is not going away. My prediction is that there will be more of these charges and lawsuits going into this year.

There will also be several states that will enact new laws to combat sexual harassment this year. California already has new requirements that just went into effect.

Starting in 2019, employers with five or more employees must provide two hours of training to supervisors and one hour to all other employees within six months of their hire (or promotion to supervisor) and every two years thereafter. Temporary and seasonal employees must be trained within their first 30 days or 100 hours, whichever comes first.

No company wants to be thought of as the company that allowed sexual harassment. Just look at what happened to Mike Isabella, a former Top Chef star, and his restaurants:

But in a Chapter 7 filing on Tuesday, which seeks to operate six restaurants through Dec. 27 before closing them permanently, Isabella argues that the local and national media relentlessly threw shade on his business operations even after he agreed to a confidential settlement in May with former Isabella Eatery manager, Chloe Caras, who sued for “extraordinary sexual harassment.” Isabella, documents note, apologized publicly to a local TV reporter and implemented new “zero tolerance” sexual harassment policies at all of his restaurants. He was ready to “restore confidence in Mike Isabella and his restaurants.”

Isabella lost his restaurants after he was accused of sexual harassment. Now, the accusations against him were very serious and he was the owner of the restaurant and was the one accused of sexual harassment. However, this can happen to any business and can be caused by employees at any level of the business. The issue of sexual harassment in the workplace is not going away. There will be more lawsuits, and charges regarding sexual harassment in 2019 than there were in 2018.

The Supreme Court Will Take a Case to Decide Whether Sexual Orientation is Protected under Title VII

The Supreme Court is considering taking a case to determine whether Title VII protects employees from discrimination based on their sexual orientation. The issue hinges on whether “Because of … sex” includes sexual orientation or is limited to a person’s sex.

Currently there is a split among the Circuit Courts. The 2nd and 7th Circuit have found that Title VII prohibits sexual orientation-based discrimination and the 11th Circuit has found that sexual orientation is not protected under Title VII.

The Supreme Court will grant the writ of certiorari and they will review the case. If the Supreme Court decides to review the issue, then it will be one of the most important cases that the Court considers next term.

The Department of Labor Will Increase the Salary Threshold for the Overtime Rule

The Department of Labor is still undergoing rulemaking to raise the salary threshold that is required to meet the overtime exemption, which allows companies to pay workers a salary and not have to pay employees overtime regardless of the number of hours that they work in a week. Currently, an employee must be paid at least $455 per week (which equals $23,660 annually) to meet the salary threshold. In 2016, the Obama administration raised the salary threshold to $913 a week (or $47,476 a year). A federal district judge eventually blocked that rule and questioned the DOL’s ability to set any salary requirement to be exempt from overtime.

The DOL will attempt to raise the threshold to around $33,000 this year probably in March. The new salary threshold will be challenged again to determine whether the DOL even has the authority to set a salary threshold.

Paid Family Leave is Coming

As I said in a prior post, paid family leave is coming. This is a question of when and not if. I believe that it will be implemented either this year or next year. Here is what I said in my earlier post.

Various politicians have expressed their support for paid family leave. Ivanka Trump and The White House have discussed their support for family leave. Marco Rubio introduced a plan to allow new parents to delay taking their Social Security benefits in exchange for two months of paid parental benefits. The Democratic Party Platform also called for paid family leave.

One poll showed that 54% of Americans think the government should require all employers to provide 12 weeks of paid family and medical leave. Only 29% of the respondents disagreed and 17% were undecided. With as much support as there is for paid family leave, it seems certain that Congress and the President will eventually enact a paid family leave law.

The National Labor Relations Board Will Issue a Joint Employer Standard

In September, the NLRB had issued a notice of proposed rulemaking to change the joint employer standard. The joint employer standard is important to determine whether companies are liable for violations of the law that are committed by staffing companies or franchises. For example, McDonalds has been combating a charge that it is a joint employer with its franchisees and is responsible for these small business owners firing employees that wanted higher wages.

Here is the release from the NLRB with the proposed rule:

Under the proposed rule, an employer may be found to be a joint-employer of another employer’s employees only if it possesses and exercises substantial, direct and immediate control over the essential terms and conditions of employment and has done so in a manner that is not limited and routine. Indirect influence and contractual reservations of authority would no longer be sufficient to establish a joint-employer relationship.

Unfortunately for the NLRB, the DC Circuit Court recently found that:

the question of whether there is a joint employment relationship under the National Labor Relations Act (NLRA) must be answered by applying the common law test for whether there exists an “agency” relationship. The Board has no special expertise relevant to defining the common law of agency. Therefore, according to the Court of Appeals, the Board is awarded no deference in this area. In other words, the Board does not have the right to define or redefine joint employment in a way that would be inconsistent with the common law meaning of “agency.”’

My prediction is that the NLRB moves forward with its rulemaking and ignores the decision of the DC Circuit. This will have a big impact on employers that use staffing companies because they will not (generally) be liable for violations that the staffing company commits against its employees unless the company exercises direct control over the employees rather than merely having the ability to direct the staffing company employees.

To clarify, it is basically the difference between a supervisor of a hotel telling the landscaping crew (that is employed by a staffing company) how to perform their jobs and exactly what needs to be done (direct control) versus the staffing company supervising, disciplining, and directing the employees with the supervisor or owner of the hotel merely having the authority to direct these landscaping employees (indirect control).

I know it is a bit convoluted, but it is incredibly important. Depending on how this decision turns out it could have a big impact on any company that franchises businesses. Yes, that means that it will impact every McDonalds and Chick-Fil-A owner.

Independent Contractor Issues Will Arise in Many States

Independent contractors are everywhere and the law concerning them is far from settled. My prediction is that more states will seek to limit the abilities of companies to use independent contractors especially when these contractors form a part of the company’s core business (think UBER drivers).

The California Supreme Court issued a landmark decision last year and the effects are still being felt. Below is the new test (called the ABC test) that the court implemented. For a worker to be an independent contractor the company must show:

1) that the company does not direct the worker in the performance of her job, 2) that the worker performs work outside the scope of the company’s typical business (such as a freelance artist who designs fliers for a moving company), and 3) that the worker has made the affirmative decision to go into business for herself, perhaps by incorporating or starting an LLC.

New Jersey and Massachusetts also use the ABC test to determine whether a worker is an independent contractor. Many of the companies that use independent contractors have a bad reputation and it is likely that more state supreme courts and possibly legislatures will adopt the ABC test. Regardless, it will get harder (at the state level) for companies to employ independent contractors.

More States will Protect Medical Marijuana Users from Discrimination

More states will change their stance on medical marijuana and whether employees that use it are protected from discrimination. Currently Connecticut, Massachusetts, and Rhode Island protect employee use of medical marijuana and prohibit employers from firing those employees for off duty medical marijuana use. In December, a Delaware judge allowed a case involving a medical marijuana user that was fired after failing a drug test to move forward.

We may not get a decision on this case this year, but it is likely that Delaware will join Connecticut, Massachusetts, and Rhode Island in protecting off duty medical marijuana use, and more states will follow suit.

Unfortunately for employers, there is not a good test that can measure impairment for marijuana, which is why more states protecting off-duty marijuana use will cause problems for employers. Until there is a test that can measure impairment, increased training will be critical so that supervisors can observe employees that appear to be impaired.

You can see my earlier post regarding addressing marijuana in the workplace here.

Notices of Inspection (I-9 Audits) Will Increase

There will be more Notices of Inspection (I-9 Audits) against businesses this year. As I said in a prior post about Notices of Inspection:

Immigration and Customs Enforcement (ICE) has increased the number of I-9 audits that it has conducted to around four times as many I-9 inspections (Notices of Inspection) in the first seven months of 2018 as it did in the prior fiscal year. ICE conducted 5,278 Notices of Inspection since January 2018.

Immigration enforcement is a priority for the Trump Administration.

The Supreme Court Will Issue a Decision About DACA. A Deal Will be Reached to Allow DACA Recipients to Remain in the US.

Either the Supreme Court will issue a decision about DACA or there will be new legislation that will solve the DACA issue. DACA holders will achieve some form of permanent or semi-permanent status that will allow them to remain in the US.

As I said in a prior post about DACA:

DACA (the Deferred Action for Childhood Arrivals) protects certain people that were brought to the US as children from deportation and allows them to get a job or attend school. They cannot obtain permanent residency through the program but may obtain work authorization and continue to reside in the country. There are currently nearly 700,000 people that are in the DACA program. The program was slated to end before a judge ruled that the government must reinstate the program and accept applications again in August. Earlier today [(November 8)] the Ninth Circuit ruled that the Trump Administration cannot end the DACA program immediately. They found that California and the others challenging the Trump administration’s decision to end the program would succeed in their case against the administration.

The Trump Administration has already appealed the decision of the Ninth Circuit to the Supreme Court. This is an issue that will likely be decided within the next year or so through a bipartisan deal.

The Spouses of H-1B Visa Holders Will Lose their Work Authorization While They Wait for a Green Card

H-1B spouses will lose their lawsuit to retain their work authorization while waiting for their green card.

There is currently a lawsuit about whether spouses on H-4 visas will be allowed to obtain work authorization while they wait for their green cards after their I-140 is approved. This is especially important to immigrants from India and China as they may wait years (sometimes even more than a decade) until they are able to get a green card after their spouse’s immigrant petition has been approved. Unfortunately, I believe that they will eventually lose their lawsuit. Administrative agencies have a lot of authority to change their positions on regulations.

Conclusion

I do not believe that it will be a year with as many changes in labor and employment law (at the federal level) as last year because Congress is split. However, many states will undoubtedly try to fill in the gap. The Supreme Court could also cause major changes in labor and employment law by reviewing whether sexual orientation is protected under Title VII.

These are my 2019 labor and employment law predictions. I’ll write a post at the end of the year to let you all know whether my labor and employment law predictions came true.

Happy New Year Everyone!

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