Laws that may be proposed in 2020 include ones prohibiting appearance discrimination, setting limits on pre-employment drug testing and requiring predictable scheduling. Employers also can expect more business-friendly decisions from the National Labor Relations Board (NLRB).
“Paid leave appears to have support that transcends red/blue political lines,” said Robin Shea, an attorney with Constangy, Brooks, Smith & Prophete in Winston-Salem, N.C. “The biggest difficulty with paid leave does not appear to be the concept but in determining how to pay for it. This seems to be the main reason Congress has not been able to adopt a federal paid-leave program” for the private sector.
Paid leave increasingly is becoming a mandate in more states. Already, California, Massachusetts, New Jersey, New York and Rhode Island have paid family leave. A new California law extends the maximum duration of paid-family-leave benefits from six to eight weeks beginning July 1, 2020.
As of Jan. 1, paid family and medical leave benefits became available to employees in Washington. The law applies to most employers in the state, though employers with fewer than 50 employees need not pay the employer portion of the premiums.
Also as of Jan. 1, Nevada now requires private-sector employers to provide employees with up to 40 hours of paid leave per benefit year for any reason.
Employees will become eligible for paid-leave benefits in Washington, D.C., beginning July 1, 2020, and employees will fund Connecticut’s new paid-leave program by contributing 0.5 percent of their income via a mandatory payroll tax, with contributions commencing in January 2021.
As of Jan. 1, 2023, a paid-leave law will take effect in Oregon, providing 12 weeks of paid leave to virtually every employee in the state.
The Society for Human Resource Management (SHRM) believes that the U.S. must have a 21st century workplace flexibility policy that works for employers and employees alike, helping both meet work/life and organizational needs.
“More states may take a closer look at adding appearance discrimination to their employment-discrimination laws, perhaps taking a broad approach to encompass appearance or a more specific focus, such as natural hair,” said Susan Harthill, an attorney with Morgan Lewis in Washington, D.C. Last year, California passed a law, effective as of Jan. 1, protecting employees from discrimination based on natural hair and hairstyles associated with race. New York also banned hairstyle discrimination last year, effective July 12, 2019, as did New Jersey on Dec. 19, 2019.
The Equal Employment Opportunity Commission has challenged grooming and appearance policies for targeting certain hairstyles associated with race, and such policies are facing increased scrutiny from courts.
Pre-Employment Marijuana Testing
“A new trend we are seeing is limits on pre-employment testing,” said Kathryn Russo, an attorney with Jackson Lewis in Melville, N.Y.
On Jan. 1, a Nevada law took effect barring employers from considering a pre-employment marijuana test result, and beginning May 10, a New York City law will prohibit employers from conducting pre-employment marijuana tests. Both laws have exceptions for safety-sensitive positions and jobs regulated by federal programs that require drug testing.
Employers don’t have to tolerate on-the-job impairment. “What we see most is the protection of off-duty use of marijuana,” said Jennifer Mora, an attorney with Seyfarth Shaw in Los Angeles. There are so many new developments involving drug testing and marijuana use, Russo noted, especially in places where recreational use is legal. “It’s a challenge for employers to keep up with these laws because so much is happening all the time.”
More Predictable-Scheduling Laws
“Predictable scheduling is really an undeniable trend across cities and states,” said Jeff Csercsevits, an attorney with Fisher Phillips in Philadelphia. “And the patchwork of laws is creating a challenge for employers.”
Among other things, these laws protect workers in certain industries—typically retail stores and restaurants—from last-minute schedule changes. San Francisco was the first city to enact a predictable-scheduling law in 2015, and Oregon was the first state in 2017. New York City, Seattle and other locations followed suit, and cities such as Chicago and Philadelphia have laws taking effect in 2020.
Richard Greenberg, an attorney with Jackson Lewis in New York City, said he expects more jurisdictions to “catch the wave” and enact predictable-scheduling laws.
Labor Board’s Employer-Friendly Approach
A 2017 decision by the NLRB outlined the process for evaluating whether seemingly neutral employment policies are permissible under the National Labor Relations Act, which allows workers to engage in concerted activity and discuss wages and working conditions.
Such policies are commonly found in an employee handbook, noted David James, an attorney with Nilan Johnson Lewis in Minneapolis. In particular, the NLRB created a balancing test intended to weigh a policy’s impact on employee labor rights against the company’s legitimate business reason for the rule.
“More recent decisions indicate that the board is taking an employer-friendly view of that decision,” James said. For example, in October 2019, the board upheld confidentiality and media-communications policies. While the policies at issue could have been read expansively, the board’s majority reasoned that the employer’s use of examples within the policies demonstrated that it did not intend wide interpretations, and reasonable employees wouldn’t interpret the policies broadly.
“Looking to 2020, I expect the board to continue to validate handbook policies—particularly those that use examples to clarify their intended breadth,” he predicted.
Lisa Nagele-Piazza, SHRM-SCP, J.D., is SHRM’s senior legal editor. Allen Smith, J.D., is SHRM’s manager of workplace law content.