2016 has arrived, marking the beginning of a year of political transition. While we cannot be certain what the upcoming Presidential election holds for 2017, we can expect to see at least seven employment law trends as we move through this year.
1. Increase in Fair Labor Standards Act (FLSA) initiatives and enforcement
The Department of Labor (DOL) has proposed changes to the thresholds for exempt status, which will increase the number of employees eligible for minimum wage and overtime payments. In addition, technology advances in the workplace are likely to collide with wage and hour laws with the increased use of smartphones and tablet devices by non-exempt employees and the rise of the sharing economy through businesses such as Uber, AirBnB, etc. Finally, the election year likely will bring with it even more emphasis on laws forcing employers to increase the minimum wage and provide for equal pay and paid family/sick leave on a federal, state and local level.
2. Expansion of the National Labor Relations Board’s (NLRB) efforts to increase unionization
2016 will give us the first full year operating under the NLRB’s new speedy election rules, which so far have served unionization well. In addition, in its last year under the Obama administration, we should expect to see other pro-union decisions and initiatives from the NLRB, including the Board’s efforts at increasing the likelihood of joint employer findings and its onslaught against non-union employment policies.
3. Expansion of Equal Employment Opportunity laws to include LGBT protections
The Equal Employment Opportunity Commission (EEOC) has been pushing an agenda to bring LGBT non-discrimination rights up to the level of other protected classes and this should continue in 2016. Expect state and local laws to begin doing the same.
4. Increased focus on employee privacy protection.
Data breaches occurring in recent years have put the spotlight not only on businesses’ protection of their customer data, but also their own employees. In addition to class action litigation being brought, with increasing success, by victims of data breaches, the Federal Trade Commission has begun enforcing its authority over unfair and deceptive trade practices to regulate in the data privacy/security space.
5. Employer reliance on wellness programs
As health care costs continue to rise, employers have turned to wellness programs to keep a lid on those costs. Here is another place where technology is creating opportunities and issues as employer wellness programs rely more on smartphone apps and wearable devices to spur on improvements in their workforce health. The EEOC also is weighing in as it relates to the incentives that can be offered to employees for participating to ensure that participation is truly voluntary.
6. Ban the Box.
Expect the Ban the Box movement, which seeks to prevent employers from asking job candidates about prior criminal convictions on their employment application, to gain additional traction throughout the year.
Expect the 2016 elections to shine a light on federal immigration policy. Though the election year almost certainly won’t be conducive to any immigration legislation, it could provide whoever wins election with enough political capital to push his or her policy through Congress beginning in 2017.