Year in Review: Key Employment Law Developments in 2018

Publication
Affirmative Action
HR Compliance
Employee & Labor Relations

With 2018 coming to a close, we look back on a busy year and the ever-changing landscape of HR. Below are highlights from 2018:

#MeToo - 2018 will be remembered for the impact of the #MeToo movement in the workplace. Amid current sexual harassment workplace scandals and recurring headlines in the media your employees took notice and were discussing the issue at work.

Key Takeaway
Many employers worked with MRA to revamp their policies and training as a result of the #MeToo movement. In addition, the EEOC saw a 30-percent increase in inquiries. We don’t anticipate a slowdown in 2019.

Joint Employment - In September, the National Labor Relations Board (NLRB) announced that it will publish a proposed rule on the standard for determining joint-employer status. Under the proposal, an employer may be considered a joint employer if one employer possesses and exercises "substantial, direct and immediate control over the essential terms and conditions of employment" of another employer’s employee, such as hiring, firing, discipline, supervision, and direction. The entire article can be found here.

Key Takeaway
UPDATE: On December 28, 2018, a U.S. Federal Court of Appeals upheld the NLRB’s Obama-era Browning-Ferris joint-employer standard. In essence, the Court ruled that the 2015 joint-employer standard was valid and, therefore, will remain in effect.

In October, the U.S. Department of Labor (DOL) unveiled its own joint employment notice of proposed rulemaking (NPRM). The intended proposal is very light on specifics, but we believe that the proposal will mirror the NLRB plan and will eventually return to the standards of the pre-Obama administration.

Guidance on Handbook Rules - In June, the National Labor Relations Board (NLRB) issued new guidance on handbook rules. Specifically, the NLRB General Counsel issued a memorandum to the Regions that provided guidance for navigating the NLRB’s more employer-friendly and commonsense approach to how a Regional Office will interpret an unfair labor practice charge. The entire article can be found here.

Key Takeaway
The memo makes clear that ambiguities in rules should no longer be interpreted against the employer and generalized provisions should not be interpreted as banning all activity that could conceivably be included. Clearly, the pendulum at the NLRB has swung back to the pre-Obama era where the Board will apply a more balanced approach to the realities of running an effective workplace and the Section 7 rights of employees.

Right to Class Action Waivers In Arbitration Agreements - In May, the U.S. Supreme Court issued a decision that arbitration agreements providing for individualized proceedings, and waiving the right to participate in class or collective actions, are lawful and enforceable. The entire article can be found here.

Key Takeaway
The ruling reassures employers who wish to continue or initiate a program to incorporate and enforce mandatory class action waivers in their employment arbitration agreements.

Significant Defeat to Public Unions - In June, the U.S. Supreme Court issued a highly anticipated decision impacting public sector unions, employers, and employees. The Court reversed 41 years of labor law that permitted public unions in states such as Minnesota and Illinois to require that nonmembers pay a fair-share or agency fee. The entire article can be found here.

Key Takeaway
This decision is the latest blow dealt to organized labor and public sector employees who are continuing to opt out of membership as a result of this decision. Union representation in the private sector has been on a decline for many years and now sits under 7 percent of the workforce.

ADEA's Employee Threshold Does Not Apply to State and Local Governments - In November, the U.S. Supreme Court ruled that the Age Discrimination in Employment Act (ADEA) applies to all state entities or political subdivisions—regardless of size.

Key Takeaway
This decision makes it clear that small public-sector employers are required to comply with the ADEA, regardless of the 20-employee minimum.

OFCCP Directives in the Month of August - The Office of Federal Contract Compliance Programs (OFCCP) was busy in August with several key announcements. At the 2018 Industry Liaison Group (ILG) National Conference, Acting Director Craig Leen spoke to the group about the four pinnacles of change the current administration is focused on, which are: Transparency, Certainty, Efficiency, and Recognition. He shared a document entitled "What Federal Contractors Can Expect."

Also, in August 2018, the OFCCP announced two new policy directives focused on ensuring equal employment opportunity and protecting Americans’ religious freedom.

Then, the OFCCP announced three additional directives, including new procedures for reviewing contractor compensation practices, a program to verify that contractors are in compliance with federal affirmative action program (AAP) requirements, and an initiative establishing a recognition program for contractors with high-quality and high-performing compliance programs and initiatives. For more detailed information please read our articles here and here.

Key Takeaway
Over the last year, the OFCCP has taken a more employer-friendly, collaborative approach to compliance. The above directives, as well as the two-year extended moratorium of enforcement activities against healthcare providers operating under TRICARE and its Town Hall Action Plan initiative, are designed to better assist contractors with their compliance obligations. It is anticipated that this cooperative approach to compliance will continue under the new leadership.

Department of Labor Opinion Letters Are Back
In August, the U.S. Department of Labor (DOL) issued several new opinion letters addressing various compliance issues including, but not limited to travel time under the FLSA, compensation for 15-minute rest breaks required by an employee’s serious health condition, and lump-sum payments from employers to employees under Title III of the Consumer Credit Protection Act. Click here and here for an overview of the recently released letters.

Key Takeaway
Opinion letters represent how the DOL interprets the laws. Periodically reviewing opinion letters reveals valuable insight that members can use to better understand the department’s thinking about compliance and enforcement.

MRA is committed to keeping you up-to-date on the latest legislative developments. In January, we will publish a What to Expect in 2019 so you can plan ahead.

If you are ever unsure how to proceed or need to talk through any employment issue, MRA is here to help! Our 24/7 HR Hotline Advisors can answer your questions at 866-HR-HOTLINE (866-474-6854), or email InfoNow@mranet.org.

Source: Michael Hyatt, Director, HR Government Affairs Director, MRA - The Management Association