Welcome back to Labor of Law. This week, we asked labor lawyers what they expect from 2018—both inside and outside their firms. Have some thoughts on this? Reach me at email@example.com or follow me on Twitter @erinmulvaney.
At my office this week, we are debating workspace trends: standing desks v. ball chairs, and the positive vibes of Himalayan salt lamps. What’s new in your workspace? Are you hearing from clients embracing any new measures or trends for health and morale? Let me know.
➤➤ Want to subscribe? Check out all the new ALM briefings and sign up here. As always, thanks for reading.
In the Works for 2018: Your Predictions
➤➤ A new year means new challenges and questions. I reached out this week to some of your colleagues around the country about predictions for 2018 and how they are managing any anticipated changes. Several themes emerged in these conversations. Here’s a rundown of some of the big topics we discussed:
>> The #MeToo movement is still very much a focus at companies. The corporate response to the wave of sexual harassment allegations is certainly keeping companies and outside counsel busy right now—and there’s no immediate sign the scrutiny will abate.
Most of the lawyers I spoke with for this piece and in recent articles said this is the biggest conversation in the corporate world. Companies are looking at internal policies and boosting training. Legislation could alter workplaces requirements, or stop any secret settlements.
● Grace Speights, (above) head of the Morgan, Lewis & Bockius labor and employment practice, says the #MeToo movement presents “a new paradigm for employers.” Companies are more closely studying their workplaces and creating a more transparent atmospheres. Workplace culture is on the minds of clients.
Speights tells me: “New developments in this movement are both quick and powerful, so employers across the board—especially in industries where people predict more claims to surface, such as financial services, universities and colleges, sports, judiciary, blue collar, and media and entertainment—should be looking into their response plans and practices now.”
● Carrie Hoffman, labor and employment partner at Gardere in Dallas, says companies are preparing for an uptick in complaints. She is advising clients that one-hour mandatory trainings are not enough. “I’ve had a handful of clients send me their PowerPoints used for sexual harassment presentations and ask, ‘Is this enough?’”
>> The Trump administration’s long takeover: Companies are still waiting for more certainty. Employers and business leaders expected big changes under a Republican White House. But the implementation has been slow—and the Obama-era enforcement spillover was strong.
Last year, federal workplace enforcement ballooned—and the year saw workplace class action settlements soar, according to Seyfarth Shaw’s annual litigation report.
● Gerald Maatman, who wrote the Seyfarth report, predicts the number of government enforcement actions will slow in 2018. He also says we’ll be more likely to see EEOC cases against individuals rather than systemic cases the Obama-era agency favored. One thing to watch at the EEOC: Whether the commission continues to support sexual orientation as protected under Title VII.
● Jonathan Snare, a Morgan Lewis partner in Washington, says he expects OSHA enforcement efforts to remain steady. He notes that enforcement and whistleblower complaints have increased. Snare tells me: “Generally speaking, all stakeholders—including employers and employees alike—are waiting for leadership at OSHA to be confirmed and in place to get a further sense of the agency’s priorities.”
● Sean Becker, a Vinson & Elkins partner—he heads the firm’s employment, labor and OSHA practice—tells me: “There is always some uncertainty before some new standards and have been clearly articulated. Absent new determinations there is going to be some uncertainty. The hope is that that’s clarified.”
● Jonathan Spitz, principal at Jackson Lewis in Atlanta, says the newly fashioned Republican-led NLRB will take time to firmly implement its priority shifts. “Until new cases come out, providing more guidance, you are still in this gray area and who wants to be the test case?” he tells me. “There’s no dancing in the streets just yet. A lot of our clients are addressing policies, procedures and handbooks and changing them back.”
>> Keep your eyes on the states. State and local governments often take the lead on labor and employment issues—and that’s expected even more so to play out in the Trump era. Paid leave laws, gender equity, marijuana rules and sexual harassment measures can create a compliance patchwork in the country.
● Samia Kirmani principal at Jackson Lewis in Boston and leader of the Workplace Training Practice Group, points to the patchwork of state laws and the wide range of issues that states are addressing—pay equity, bans against prior salary information and compliance with sick-leave laws. Marijuana regulations are also on the minds of many companies.
Jackson Lewis put together for clients a web-based suite of tools, WorkThruIT, designed to provide easy access to legal and compliance information. The firm also created a Data Analytics group last year. Many of these changes are targeting the complexities of this area of law. “What we do a lot is help harmonize these laws for clients,” Kirmani says. “It’s challenging.”
>> The Supreme Court in 2018 is expected to issue major labor rulings: The justices will decide a major case that could dramatically alter employment class actions. Dozens of employers are anticipating the Epic Systems, Murphy Oil and Ernst & Young decision will determine whether class action waivers used in arbitration agreements violate laws that protect concerted speech.
The court this term declined to hear a case, meanwhile, that questions whether sexual orientation should be protected under Title VII of the Civil Rights Act. The circuit courts are split—and the issue could come back to the justices soon.
Sexual harassment and the courts
● Reuters posted a special investigation examining how courts have helped companies keep under wraps allegations of sexual misconduct. From the report: “A Reuters review of federal court cases filed between 2006 and 2016 revealed hundreds containing sexual harassment allegations where companies used common civil litigation tactics to keep potentially damning information under wraps. Plaintiffs in some cases say companies sought to conceal internal documents that reveal similar harassment claims, as well as corporate policies that favored abusers over victims.”
● In the world of finance, The New Yorker makes the case that Wall Street has on its own shielded alleged misconduct: “Large settlements are paid, but the men who either committed the bad behavior or effectively condoned it often remain.”
Around the Water Cooler
Here’s a roundup of we’re reading about labor & employment—and I’m interested in what you’re reading. Shoot me a note!
>> Walmart cites tax plan for wage boost. The country’s largest employer announced that it would increase starting hourly wages from $9 to $11 and expanded its parental leave benefits in anticipation of savings from the tax plan. [Washington Post]
>> Littler Mendelson raises its bets on data analytics. My colleague Roy Strom in Chicago writes: Littler is poised to announce its hire of a chief data analytics officer, Aaron Crews, who will be tasked with managing the firm’s data capabilities and to help it roll out more technology-based products based on the ideas of the firm’s existing data scientists. [The American Lawyer]
>> Fired for not being Jewish. An Arkansas man who accused his employer of discriminating against him for not being Jewish lost his case. [Bloomberg Law]
>> An Ex-Google engineer filed a class action on behalf of white men. James Damore’s controversial memo suggested men were better suited for the technology industry than women. [The Recorder]
>> Forget automation. Independent contractors are the way of the future. This report suggests Washington is doing nothing about a change that has been happening over the past two decades. [Politico]
>> Sick leave debate in Maryland heats up. The legislation includes a provision that would allow businesses that take more than two consecutive days off of paid leave to verify why they need time off. Businesses pushed for the provision, but the governor thinks it invades privacy. [Washington Post]
>> A job interview without gender? Gender-masking technology for job interviews could eliminate some workplace bias. [New York Times]
>> Microsoft acknowledges wider workplace tensions in response to a class action. The company says, yes, there is a gender imbalance in the tech industry. Yes, they are working on it. But no, this closely watched class action shouldn’t move forward. [National Law Journal]
That’s all for this week! Let me know what’s on your radar: firstname.lastname@example.org.