Now that 2018 is winding down, the mid-term elections are behind us, and Brett Kavanaugh has been confirmed as the newest Associate Justice to the United States Supreme Court, it is time for me to make my 2019 predictions for the trends and hot topics in employment law.
With the Democrats taking control of the House of Representatives, the Republicans maintaining control of the Senate, and the presidency of Donald Trump, it is hard to imagine any significant federal legislation being passed in the next two years. This forecasted stalemate is especially likely when it comes to any new or expanded employment laws. The only possible exceptions I see might be an increase in the minimum salary level for the “white collar” exemptions from the existing $23,660 to somewhere in the mid $30,000 range. If that happens, it would still be a far cry from the original $48,000 proposed in 2016. The other potential development might be in the area of paid family leave. Before you stop reading and think I’m crazy, consider the following. President Trump’s closest advisor is his daughter, Ivanka Trump, who has been a long-time proponent of a paid family leave plan. There has also been some support for paid family leave expressed on the Republican side.
Notwithstanding my prediction that any new federal legislation will be minimal, I predict that municipalities and states will take up the mantle and become more active in passing employment laws, especially given that the Democrats won executive seats in crucial states. Specifically, the Democrats gained control of nine governorships that had been previously held by eight Republicans and one independent, including in seven Republican-controlled states (Illinois, Kansas, Maine, Michigan, Nevada, New Mexico and Wisconsin). Likely to be on the agenda at the state level are paid and parental leave, equal pay, marijuana in the workplace, employee privacy and social media.
With the confirmations of Justices Neil Gorsuch and Brett Kavanaugh and the possibility that President Trump may have the opportunity to appoint a third justice if Justice Ginsburg, now 85, retires within the next two years, most, if not all, employment cases coming before the Supreme Court will likely be decided in favor of the employer. Even more significant in creating an employer-friendly judicial landscape are President Trump's appointments to the United States Courts of Appeals and the Federal District Courts. As of December 1, 2018, the United States Senate has confirmed 84 Article III judges nominated by President Trump; two Associate Justices of the Supreme Court; 29 judges to the United States Courts of Appeals; and 53 judges for the United States District Courts. While it is almost certain that not all of these lower court judges will be as conservative as Justices Gorsuch and Kavanaugh, I am equally confident that few, if any, are likely to be employee-friendly.
In light of the makeup of the federal judiciary and the likely increase in state and local enacted employment laws, I predict we will see more cases being filed in state court under local and state anti-discrimination laws than in federal court. Adding support to this prediction is the fact that summary judgment for an employer is more difficult to obtain in state court than in federal court, where federal judges are appointed for life as opposed to state court judges that are mostly elected.
Just over a year ago, I wrote several articles predicting a significant increase in both administrative charges and lawsuits alleging sexual harassment. While, admittedly, that was an easy prediction in the wake of the Harvey Weinstein controversy, it has certainly come true. Looking at the EEOC statistics alone, according to the preliminary data for the 2018 fiscal year, the EEOC has filed 41 cases with allegations of sexual harassment representing more than a 50 percent increase from the previous year. New charges filed with the EEOC alleging sexual harassment rose by more than 12 percent from the previous year, which, significantly, was the first increase in over eight years. Finally, the EEOC recovered nearly $70 million through litigation and administrative enforcement of sexual harassment claims, an increase of approximately 50 percent from the prior year. With such significant increases in the number of charges of harassment and what seems to be endless television coverage of high-profile individuals being accused of sexual harassment, I see no reason why 2019 is likely to be any different from 2018 in that regard.
I also foresee a continuing increase in Fair Labor Standard Act (FLSA), Family Medical Leave Act (FMLA), and Fair Credit Reporting Act (FCRA) cases. My prediction is predicated on the fact that, for the most part, to prove a violation of any of these three statutes, it does not require a showing of intent. In other words, for the most part, there are strict liability statutes making them an attractive case for a plaintiff's lawyer to pursue, especially since they will provide for attorneys’ fees to a prevailing plaintiff.
My final prediction for 2019, which admittedly may be going out on a limb and bucking the current trend, is that there will be an increase in national origin discrimination claims. This prediction is based on two things: First, the EEOC will continue to focus on discrimination practices against those who are Muslim, Sikh, or of Arab, Middle Eastern, or South Asian descent; second, the louder the rhetoric of "build the wall" and “stop the caravans" of Central or South American migrants becomes, the more dissension there is likely to be against perceived discrimination against citizens with Middle Eastern, Mexican, or Central or South American origins. Like the backlash cases we saw after 9/11, more charges and lawsuits alleging national origin discrimination are likely to result from the intolerance displayed towards people from other nations.
Employers need not worry about any major regulation in the area of federal employment laws. The only exceptions may be with respect to paid family leave and an increase in the salary basis requirement for claiming the "white collar" exemptions under FLSA. Instead, employers should be on the lookout for new local and state employment laws, such as those regulating paid and parental leave, equal pay and marijuana laws in the workplace.
I predict the federal judiciary will continue to take a more conservative posture, with the result being more employment claims filed in state court. I see a continued increase in "Me Too" cases alleging sexual harassment. And my most controversial prediction is that we are likely to see an increase in national origin discrimination.
Good luck and best wishes for 2019.