Tag: Onboarding

2020 Labor & Employment Law Predictions Reviewed

Published by Brett Holubeck on January 4, 2021

Image of text that says Happy New Year to symbolize the review of my 2020 Labor and Employment Law Predictions — Photo by Annie Spratt on Unsplash

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.

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:

Biden favors the PRO Act (see the full bill here), which will:

○ 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:

The worker is free from control (they determine how to do the work),
The work is outside the usual business of the company, and
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.

Basics of Onboarding an Employee

Published by Brett Holubeck on July 13, 2020

Picture of a life preserver with the phrase "Welcome Aboard" written on it to demonstrate that when onboarding employees should feel welcome. — Photo by Nick Fewings on Unsplash

Onboarding a new employee is tough. Onboarding a new employee remotely is even harder. There are several considerations that every company needs to have before they bring on a new employee especially in light of the current Coronavirus pandemic.

Make sure that the Paperwork is Completed

As I mentioned in an earlier post, employers still need to complete the I-9 for all new hires, but this rule has changed somewhat:

Every employee must fill out an I-9 when they are first hired. Employers normally cannot complete the I-9 form remotely. Companies must review the applicant/new hire’s documents in person. With COVID-19 (the Coronavirus) raging, this is one rule that has been relaxed. Remote workers no longer need to present documents physically. Companies can now view the documents through video and write COVID-19 as the reason for the delay in physical inspection on the relevant part of the I-9. They will need to review the documents physically once this disaster is over.

In another post, I listed some additional information on the paperwork that an employee needs to fill out on their first day. Rather than rehash that article, I want to use this post to discuss the actual onboarding process beyond merely filling out paperwork.

What is New Hire Orientation?

Onboarding is not new hire orientation. New hire orientation is essentially showing the new employee where they will sit/work, reviewing policies, and, let’s be honest, it is mostly filling out paperwork and watching training videos. It also involves telling them the basics of how to do their job.

Onboarding goes much deeper. It is about setting the employee up for long term success and to be a member of the team.

How to Onboard Employees Effectively

You need to have a plan. When I did Teach for America, one of the most important lessons that we were taught as teachers was to backwards plan. You needed to know where you wanted to end up, so that you could understand how to get there. For example, one of the goals may have been for the students to know their multiplication tables up to the number twelve. With that end in mind you can plan a series of lessons and tricks to help students memorize these tables so that they could do multiplication with bigger numbers later.

The same lesson applies to employees. A good job description can help you keep the end in mind (I wrote about job descriptions previously here). It is essentially what you want the employee to be able to do (i.e. where you want the employee to end up).

If a company doesn’t know what their end goals are for a new employee, then the new employee definitely won’t meet those goals. Onboarding starts on day one and continues for months until the employee is fully integrated into the company. Before getting into the details of improving onboarding at an organization, I want to briefly note that onboarding is a company and job specific process (or at least it should be). Ideally, there should be a different onboarding process for every type of job at the company because the purpose of onboarding is to make a new employee a good fit for their position and at the specific company they work for. Moreover, in the times of the coronavirus there are several additional considerations and training that employees will need.

Here is a quick overview of what the onboarding process may look like for employees generally.

The First Day of Onboarding

Companies need to communicate with the coworkers of the future employee to let them know that the company has hired a new employee. The team, or several members that the new employee will work with, should be encouraged to welcome the new employee when they first come into the office. In the coronavirus or “zoom era,” a quick zoom chat with everyone to welcome the new employee at the beginning of their first day is a great way to make the employee feel that they are a part of a team and the company is a good place to work. The same is true when the employee first comes into the office or onsite work environment. Gathering the fellow coworkers of the new employee to welcome them is a great way to immediately break the tension of starting the first day at a new job.

After the initial welcome, the new employee will likely have several trainings or meetings with their manager. Management should obviously give the new employee a schedule that they will follow on the first day; there is nothing worse than feeling lost on day one. The company should also assign a mentor or supervisor that will make sure that the employee finds his or her way to lunch, has people to eat with, and can answer any questions the new employee has throughout the day.

After the First Day

Once the new hire orientation is completed. The actual process of onboarding begins. This is where a good onboarding and a bad onboarding program can be differentiated. Many times, a company’s onboarding process is just a couple day new hire and training process without a long-term plan to integrate the employees into the overall team.

The only way to do that effectively is to map out the information that the employee will need to be successful in the workplace. In other words, you need an actual, formal onboarding program rather than an informal, haphazard one where employees learn what they need to do on the fly.

As I see it, there are a few key components of the formal, long-term onboarding process. One is integrating the employee into the company or business. It involves making them believe in the mission of the company and the aims of its business. The second is integrating the employee within the team that they work with. This involves them getting an understanding of the strengths of the team, the areas for improvement, how the team communicates and works together to complete its tasks, and just generally becoming comfortable and sociable with their coworkers. The final component of onboarding is orienting the employee into the basics of their job.

Let’s look at these three areas in a bit more detail.

1. Making the Employee Truly a Part of the Company

A new employee cannot integrate into a company’s culture in a week, but they do get a picture of what they believe the culture is. Within the first week the employee will have seen how different people interact with each other. He or she will see what issues his manager places their focus on and whether those issues come from the company or are something that the manager makes up on the fly.

Over the course of several months, if onboarding goes well, the employee will adapt to the culture of the company. If the company has a poor culture, then the employee will obviously try to work within that culture. A good culture or foundation is important for the new employee. A workplace culture is really what drives the employees at the company. Many companies have high morale because they care for employees and respect their ideas. Other companies have poor morale because of management or other problems at the company.

An employee learns about the culture of the workplace by watching and following what other employees are doing. If the workplace has a dog eat dog culture, then the employee will notice that the first time that they get stabbed in the back or when people do not share credit for some project or task. The new employee will likely adapt to whatever culture is already present in the workplace rather than changing it.

2. Becoming a Member of the Team

This is probably one of the most critical, but often overlooked elements of the onboarding process. The social interaction and getting comfortable with the team that an employee will work with is important. Companies can aid this process by doing a few basic things. They need to create opportunities for the team to interact with the new employee. Usually, this means taking the new employee out to lunch or having them sit with a certain assigned person in the lunchroom so that the employee can avoid that awkward moment of not knowing where to sit that may take some of us back to high school.

Good companies create opportunities for the person to feel a part of the team throughout their time at a company. That means that employees are encouraged to share ideas and feedback with each other. It also means that employees encourage each other and support each other in their work. A good manager, proper training, and feedback are necessary to create this culture.

3. Helping An Employee Adjust to Their Job

This is the reason that the employee is there: to do their job. A long onboarding process helps them become more effective and brings them up to speed quicker. There should be regular checks with the employee to see how they are doing. Ideally this would be done on a formal basis at one month, three months, six months, and a year. On an informal basis, management should check in with the employee on a multiple time a day basis during their first few days, then a daily basis through the one-month period, and perhaps weekly after that.

Every job has specific requirements. Companies need to conduct their own analysis to see what skills they need to develop within the new employee and what the employee needs to know in their specific job to be successful. Some jobs have only a few skills that a new employee needs to know, and these can usually be learned quickly. Other jobs have a variety of skills and tasks that need to be completed. Sometimes the job will even have tasks that will only occur once a year or sometimes once every other year (like planning a conference). A good employer will help employees understand what they need to do to complete these tasks and train them so that they can do them effectively.

Some Quick Notes about Remote Onboarding

With remote onboarding, companies need to be even more intentional than they are with employees that they see on a day-to-day or week-to-week basis. Managers must check in with their employees and their work to see how they are doing. Every coworker must aim to make the new employee feel welcome and part of the culture. There needs to be a specific plan and agenda in place to help the new employee integrate into the company. It needs to be thought out and time must be blocked off for the various parts of the first day. As I mentioned before, a quick zoom call at the beginning of the employee’s first day is a great way to make the employee feel welcome. Buying the remote employee lunch on their first day and having a lunch meeting over zoom is another way.

Throughout the first week the manager and other coworkers should check in with the employee. Employers need to create an intentional plan to interact with the employee so that they don’t feel like they are an outsider or completely isolated from the company. Companies can be successful in making remote employees fully part of the team and feel like they fit within the company. It just takes a lot of preparation and a plan.

Conclusion

Around one-third of employees leave a job within the first six months. The more a person is integrated into the company, their team, and their job the less likely it is that a person will leave. Remember, hiring is expensive. The cost of a bad hiring decision according to the Department of Labor is 30% of their first year earnings. Onboarding is an opportunity that employers have to help their employees and their business grow. It is too important to leave to chance or do without a well-developed plan.

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

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