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6 US Employment Trends to Watch in 2018

HR Column
T his year, US employers should expect a continuation of the pro-business trend in Congress and the federal agencies that began in 2017. Below are some notable highlights.

1. Salary history ban

Last year, US lawmakers took steps to address the equal pay gap. According to the National Women’s Law Center, women earn on average about 80 cents to a man’s dollar nationwide, and the gap widens for women of color. California, Oregon, Delaware, Puerto Rico, New York, San Francisco, Pittsburgh, and New Orleans followed Massachusetts in banning questions about salary history during the application process.

Generally, impacted job applicants can recover compensatory and punitive damages, as well as attorney fees and costs.

2. Expansion of paid leave

The federal government instituted paid leave rules for employees working on federal contracts entered into after January 1, 2017. Among the states, Arizona, California, Connecticut, the District of Columbia, Massachusetts, Oregon, Puerto Rico, Vermont, and Washington state have enacted paid leave legislation. Most states define minimum thresholds for:
•    Amount of leave, accrual rates, and limits;
•    Future balance carryover;
•    Start and use dates; and,
•    Pay rate and payout at termination.

3. Fair scheduling

To meet work demands with limited staff, many employers have increasingly fluctuating work schedules, which amplifies unpredictability for lower wage employees. This translates into fluctuating paychecks. Fair scheduling laws attempt to address this by increasing stability for hourly workers who may be juggling one or two jobs while caring for families or going to school.

A few cities in Washington and California have passed scheduling laws, and this trend appears to be increasing in some coastal states. While states vary in their approaches, fair scheduling laws typically address notice requirements and allow employees to request scheduling accommodations without retaliation.

4. Harassment in the workplace

Employers should expect the focus on sexual harassment to continue. The increasingly diverse American workforce appears to have reached a tipping point where inequitable treatment, particularly based on gender, is being publicly addressed. Employers should implement practices that promote harassment-free environments and provide meaningful redress if it occurs.

The Harvey Weinstein scandal prompted critics to argue that confidentiality provisions in settlement agreements protect wrongdoers. Pennsylvania and New Jersey have introduced bills to ban confidentiality provisions in workplace discrimination, retaliation, or harassment claims. Passage of these kinds of bills could result in material changes to settlement agreements.

5. Monitor healthcare developments

Met with unsuccessful attempts to repeal and replace the Affordable Care Act (ACA) through the legislative process, US President Donald Trump’s administration issued an executive order to dismantle it through the regulatory process. Employers should monitor ongoing implications of these changes

6. California developments

California continues to be at the cutting-edge of new legislation, and should be monitored as a bellwether of potential trends that may extend to other states.

Ban-the-box law
We previously covered the ban-the-box requirements that every employer should know. Effective January 1, 2018, California Government Code §12952 prohibits private and public employers from considering an applicant's criminal history early in the hiring process. This law repeals the existing ban-the-box for government employers and amends the California Fair Housing and Employment Act (FEHA) to extend provisions to employers with at least five employees. These employers may not ask about criminal history on an initial job application, and cannot consider criminal history until an applicant has received a conditional offer of employment. The employer must make a case-by-case assessment of each conviction. The employer must also give the applicant written notice and an opportunity to respond before denying employment based on the conviction.

Prohibited use of legal marijuana
Proposition 64 allows adults to possess and use marijuana for recreational purposes, but it preserves the employer’s right to maintain a drug- and alcohol-free workplace. Employers can enforce policies prohibiting marijuana use, possession, and impairment by employees. They can also test for use after a conditional job offer, and under a “reasonable suspicion” of abuse by a current employee.

Immigration enforcement
In response to increased immigration enforcement, effective January 1, 2018, the Immigration Worker Protection Act prohibits employers from allowing immigration enforcement agents into nonpublic workplace areas without a subpoena or judicial warrant. Employers also cannot provide access to certain employee records without a subpoena or judicial warrant.

Penalties for noncompliance begin at US$2,000 for a first violation, up to US$10,000 for each subsequent violation.

Job protected leave
Effective January 1, 2018, the New Parent Leave Act (NPLA), extends the requirements of the Family Medical Leave Act (FMLA) and California Family Rights Act (CFRA), to employers with 20 or more employees. Under the CFRA, employees can take up to 12 weeks of unpaid leave within a year of the child's birth, adoption, or foster placement. After the leave, the employee must return to the same or a comparable job. Employers must continue providing the employee with group health coverage during the leave. While the leave is unpaid, employees can receive partial pay from the state’s paid leave program.

Mandatory gender identity training
As of January 1, 2018, the Transgender Work Opportunity Act expanded FEHA biennial sexual harassment training for supervisors to include topics on gender identity, gender expression, and sexual orientation harassment. Employers with at least 50 employees must comply.

About the Author

Spiwe L. JeffersonSpiwe L. Jefferson is general counsel of ChristLight Productions Ltd., LLC, patron fellow of the American Bar Foundation, and board secretary and legal advisor to The BrandLab. She is a member of the ACC employment and labor, law department management, and litigation sections.

The information in any resource collected in this virtual library should not be construed as legal advice or legal opinion on specific facts and should not be considered representative of the views of its authors, its sponsors, and/or ACC. These resources are not intended as a definitive statement on the subject addressed. Rather, they are intended to serve as a tool providing practical advice and references for the busy in-house practitioner and other readers.