Hot-Button Employment Law Issues In 2020

At least 8 States and the District of Columbia currently require Paid Family Medical Leave. At least 13 States and numerous cities and counties have enacted Paid Sick Leave laws. While federal law provides leave to some employees under the FMLA, it is unpaid and it only covers employees whose employer has 50 or more employees within a 75-mile radius. Consequently, here too multi-location employers have to sort out a patchwork of State and local laws.

Currently, 11 states and the District of Columbia legalize marijuana for both medicinal and recreational use. They are: Alaska, California, Colorado, Illinois, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont and Washington. As of July 2019, 33 states and the District of Columbia have legalized medical marijuana. Under federal law, however, marijuana, medical or recreational, remains illegal. This is why we have the patchwork of state laws, with sometimes wide variations from one state to another, often resulting in confusion.  

Since marijuana is illegal under federal law, employers do not have to provide accommodations under the Americans with Disabilities Act for employees using marijuana pursuant to a valid medical prescription in a particular state. On the other hand, some state laws do require such accommodations. With the variation from state to state, how does a multi-state employer keep track of it all? What if an employee travels to a state where marijuana is legal, uses it for recreational purposes, returns to the workplace in a state where it’s not legal and tests positive? Confusion abounds. Generally, one must look at each case and each set of facts individually to work out a semblance of an answer. From the looks of things, this issue will continue to challenge employers in 2020.

I’ve written before about mandatory arbitration of employment disputes (specifically, here, here, here, here, here and here, to name just a few places). Some employers require employees as a condition of employment to agree to submit any employment-related disputes to binding arbitration. In general, federal courts have tended to enforce such agreements. Not all states do, though. It may not surprise you to hear that California is one state that as of January 1 prohibits employers from requiring employees to arbitrate discrimination claims. 

Given the federal courts’ position that the Federal Arbitration Act (FAA) favors arbitration of disputes and that they have specifically ruled that employment disputes can be subject to such requirements, this new law may encounter some vigorous challenges. Will other states follow suit? Legislation aimed at ending mandatory arbitration of employment disputes is pending in Congress as well. What will happen here? Time will tell. Here too, employers may want to stay tuned in 2020.

Illinois, Alabama and California enacted similar laws in 2019. New York and New Jersey and Kansas City, MO have passed laws prohibiting employers from asking employees about salary history. Why? Since historically women and minorities have often been paid less than others who are not members of any classes protected against discrimination, basing pay on salary history, in many cases perpetuates discriminatory pay practices. Make sure, therefore, to be aware of any such bans in any locations where you hire — or better yet, make sure your recruiters, hiring managers and the like simply don’t ask candidates about salary history.

The worker classification conundrum continues. Many businesses rely on hiring workers that they call independent contractors, to keep their expenses down and to maintain flexibility and efficiency. Unfortunately, such practices often result in a worker not receiving wages, benefits or overtime pay to which they are actually entitled by law. (It also results in federal and state governments not receiving as many tax dollars, because employers are not conducting proper pay withholding with respect to such workers.)  

A few states have passed legislation making it harder to classify workers as independent contractors. Massachusetts, California and New Jersey have passed such laws and there is proposed legislation in New Jersey to make its existing law even tighter. If more states follow this trend, we can expect less uniformity here as well.

The US Supreme Court recently heard oral argument of a trio of cases as to whether Title VII of the Civil Rights Act prohibition against sex-based discrimination also applies to discrimination based on sexual orientation and gender identity. Two consolidated cases (Altitude Express Inc. v. Zarda and Bostock v. Clayton County, Georgia focus on sexual orientation, whereas  R.G. & G.R. Harris Funeral Homes Inc. v. EEOC  is focused on gender identity. The Court is expected to hand down a decision in June. While uncertainty remains in the federal arena (until June) 21 States, the District of Columbia, Guam and Puerto Rico have passed laws prohibiting such discrimination.

The US Supreme Court is set to hear oral argument next week in Babb v Wilkie and decide whether federal workers bringing claims under the Age Discrimination in Employment Act (ADEA) must prove that adverse employment actions would not have occurred, “but for” the employer’s age bias, or whether they need only prove that age bias was a motivating factor.