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Labor & Employment News Alert

An Early Look at Federal Labor and Employment Law Developments in 2019

January 6, 2019

By: Mark H. Dellinger

Since we just turned the page on 2018, it is time to focus on what labor and employment law developments may be in store for employers in 2019.  This post highlights several labor and employment regulatory and case law developments that may come to fruition this year.


1. The U.S. Equal Employment Opportunity Commission (EEOC) is scheduled to release a new proposal in June regarding how employers can implement workplace wellness programs without the risk of being sued.  The EEOC’s view of the legal parameters of these programs has been in flux since a federal court issued a decision in 2017, which vacated the agency’s 2015 rules.


2. Employers are hoping that the EEOC will release the final version of its guidance on workplace sexual harassment.  In January 2017, the EEOC issued a draft of its guidance on this topic, which included its legal interpretation of harassment and recommended best practices for dealing with harassment in the workplace.  Employers would like to ensure their sexual harassment policies are EEOC-compliant, especially with the recent increase in sexual harassment claims resulting from the #MeToo movement.


3. The U.S. Department of Labor (DOL) is scheduled to release an updated version of its “white collar” overtime rule this month.  The previous version of this rule was halted in December 2016, by a federal district court in Texas.


4. The National Labor Relations Board (NLRB) has announced its plans to speed up the agency’s handling of unfair labor practice charges and to continue with its rule-making role this year.  With regard to its rule-making function, the NLRB’s Chair and General Counsel have indicated an intention to enact or consider rules on the following topics:


  • clarifying the standard for joint employment in response to Browning-Ferris case;
  • revising certain parts of the NLRB’s controversial 2014 rule concerning the agency’s processes for handling union representation cases;
  • overhauling the NLRB’s blocking charge policy; and
  • addressing employees’ access to employers’ property


5. Currently, the U.S. Supreme Court in considering whether to accept petitions for writs of certiorari in several important employment cases, including:


  • Altitude Express v. Zarda, Bostock v. Clayton County, Georgia, and R.G. & G.R. Harris Funeral Homes Inc. v. EEOC, which are appeals involving the question of whether Title VII’s prohibition on sex discrimination covers bias based on sexual orientation or gender identity; and
  • Yovino v. Rizo, an appeal which involves the question of whether an employer can violate the federal Equal Pay Act by considering a new hire’s compensation entirely on the individual’s prior salary history or if salary history is considered among other factors.


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