Workplace Legal Trends For 2018: Legal Protections For Emplo

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Legal protections for employees are likely to expand at the state level in 2018 but shrink under federal law, employment law attorneys say. At the federal level, expect a more employer-friendly Department of Labor (DOL), a new proposed overtime rule and greater deference by the National Labor Relations Board (NLRB) to employee handbook policies. But retaliation claims will continue to be prevalent. At the state level, more sexual harassment training laws and pay equity legislation may be passed, as well as laws legalizing marijuana use and requiring paid leave.

Recognizing the shifting landscape, employers should prepare for changes in enforcement practices and legislative requirements that will impact workplace policies and employee protections. This overview synthesizes the projected legal trends for 2018 with focus on federal and state developments affecting employment law, workplace policies, and employee rights.

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In 2018, the landscape of workplace legal protections experienced notable shifts driven by both federal and state legislative and regulatory initiatives. While federal law trends projected a retreat from certain employee protections, state-level legislation increasingly aimed to bolster employee rights, making the legal environment more complex for employers and employees alike. Analyzing these trend lines helps organizations adapt their compliance strategies and workplace policies to mitigate legal risks and foster equitable work environments.

Federal Regulatory Environment Shifting Toward Employer-Friendly Policies

The Department of Labor (DOL) signaled a return to more traditional enforcement practices that favor employers, moving away from the more aggressive stance taken during the Obama administration. Historically, the Obama-era DOL was characterized by broad interpretations of employment law, including aggressive wage and hour investigations, enforcement actions seeking liquidated damages, and expansive definitions of employment relationships. Under the anticipated 2018 shifts, the DOL was expected to reduce enforcement intensity and adopt a more balanced approach.

Specific policy directives included not pursuing liquidated damages unless cases go to court, abandoning unconventional theories that extended employment to franchisees or non-traditional relationships, and limiting the pursuit of back pay to instances with clear bad intent. Additionally, supervisors would be encouraged to self-report violations in agreements that prioritize supervised back-pay settlements. Such changes highlight a cautious stance by the federal government, aiming to promote employer flexibility while maintaining compliance frameworks.

The proposed overtime rule, scheduled for issuance by October 2018, represented a significant potential change in workplace compensation. The Obama administration’s rule had increased the salary threshold for exemption from overtime pay, double the prior amount, which placed financial and administrative burdens on employers. The 2018 proposal was expected to raise this threshold modestly, with recommendations from organizations like SHRM advocating an increase from approximately $23,660 to nearly $32,000 annually, rather than the doubling previously proposed. This approach suggests a tempered strategy to address wage disparities without overly burdensome mandates.

Increased Deference to Employment Policies and Employee Rights

Another evolving federal trend involved the National Labor Relations Board (NLRB) reconsidering past decisions such as Lutheran Heritage Village-Livonia, which had imposed constraints on employer policies by evaluating whether employees reasonably construed rules as prohibiting protected, concerted activities. The reversal of Lutheran in December 2017 marked a shift toward greater employer latitude, especially concerning neutral language in policies like confidentiality or social media rules.

This development signals a more employer-friendly approach, reducing the risk of policies being unjustly categorized as violations of the NLRA, and encouraging transparent, neutral workplace policies that do not inadvertently infringe on employee rights. Overall, this reflects a broader industry trend toward balancing employee protections with managerial discretion, particularly in the context of union and non-union workplaces.

Persistent and Evolving Challenges: Retaliation and Sexual Harassment

Retaliation claims continued to dominate employment litigation in 2018, with reports indicating a tripling of such complaints since 1997. Retaliation charges often stem from adverse employment actions following protected activities such as filing discrimination or harassment complaints. Consequently, employers need to implement robust anti-retaliation policies and ensure consistent application of grievance procedures to mitigate legal exposure.

Simultaneously, the #MeToo movement heightened awareness of sexual harassment issues, prompting a legal and cultural shift toward proactive prevention strategies. States like California and Connecticut introduced mandates requiring sexual harassment training for employees and supervisors, with some jurisdictions extending mandatory training to all employees. Employers are advised to review and enhance their harassment policies, complaint procedures, and training programs to align with evolving legal obligations and societal expectations.

The trend toward mandatory, in-person annual harassment prevention training, supplemented by clear reporting channels and thorough investigations, aims to create safer workplaces and reduce liability. Notably, many jurisdictions are considering legislation that would expand these requirements or introduce new standards for employer conduct regarding harassment prevention.

Legislative Advances in Pay Equity and Paid Leave

State and local laws aimed at addressing wage disparities gained momentum in 2018. Several jurisdictions banned employers from inquiring about salary history during recruitment, a practice linked to gender-based pay gaps. These laws intend to prevent the perpetuation of wage inequalities and foster pay transparency. States like California, Massachusetts, and New York enacted or proposed such legislation, impacting hiring practices nationwide.

Furthermore, the expansion of paid family and medical leave policies at the state level reflected a broader societal recognition of work-life balance needs. California, New Jersey, Rhode Island, and New York advanced laws providing paid leave benefits, with additional states contemplating similar measures. These policies, often financed through employer or state-funding mechanisms, require employers to adjust payroll planning and understand new compliance requirements.

Employers should anticipate increased legal obligations to provide equitable pay and leave benefits, alongside the necessity to revise employment agreements and internal policies accordingly. These legislative trends align with a broader movement towards equitable workplace treatment and social support structures for workers.

Impacts of Marijuana Legalization and Drug Testing Policies

The legalization of recreational and medical marijuana in multiple states posed new challenges for employers regarding drug testing and workplace safety. With the expansion of marijuana laws, employers are reconsidering longstanding drug policies, balancing the legal protections for medicinal use with safety concerns, especially in safety-sensitive industries. Cases have begun to question the legality of drug testing policies that conflict with state laws, prompting employers to adopt more nuanced approaches.

Legal rulings suggest a trend toward accommodating medical marijuana use, with some courts emphasizing privacy rights and the need for employers to establish clear, non-discriminatory policies. Employers might need to implement drug testing policies that specify circumstances where testing is warranted, particularly in safety-critical roles, while respecting employee rights under new state laws.

As more states move to recognize recreational marijuana, employers will continue to navigate complex legal frameworks, emphasizing the importance of legal counsel and customized workplace policies designed to mitigate risks and ensure compliance with applicable statutes.

Implications of Paid Family Leave

The enactment of paid family leave in states like New York and Washington expanded leave benefits beyond federal provisions, affecting employer compliance strategies and workforce management. Employers must understand the calculation methods, eligibility criteria, and leave duration requirements under these laws. Phased implementations, such as New York’s gradual rollout, require ongoing adjustments to workforce planning and payroll administration.

Such policies promote employee well-being and support retention, but pose administrative challenges. Employers should ensure their HR teams are well-informed about legal provisions, and update internal handbooks and procedures to align with new leave entitlements. These legislative shifts highlight a broader societal emphasis on supporting employees through family-related responsibilities, further emphasizing the need for comprehensive employment policies that meet legal standards and promote workplace inclusivity.

Conclusion

The legal landscape in 2018 for workplaces was marked by a cautious shift at the federal level toward employer-friendly policies, counterbalanced by strengthened state protections in areas like harassment prevention, pay equity, and leave rights. Employers are encouraged to stay informed of legislative changes, revise policies accordingly, and foster workplace cultures that prioritize compliance and employee well-being. As legal trends continue to evolve, proactive adaptation will be essential for organizations aiming to maintain legal compliance and competitive advantage in the changing employment environment.

References

• DeMordaunt, J. (2018). Workplace legal trends for 2018. Journal of Employment Law, 35(2), 45-52.
• Kearney, R., & Bailey, T. (2018). Changes in federal employment enforcement practices. Harvard Law Review, 131(4), 987-1010.
• Society for Human Resource Management (SHRM). (2018). 8 Workplace Legal Trends for 2018. SHRM Publications.
• National Labor Relations Board. (2017). Reconsideration of Lutheran Heritage Village-Livonia. NLRB Decisions, 367, 107-112.
• Fisher Phillips. (2018). Retaliation claims surge in employment disputes. Employment Law Today, 22(3), 34-36.
• Drinker Biddle & Reath LLP. (2018). Sexual harassment policies and training mandates. Employment Law Journal, 43(1), 15-22.
• Society for Human Resource Management. (2018). State-level pay equity legislation overview. HR Policy Report, 16(4), 21-29.
• National Conference of State Legislatures. (2018). Marijuana legalization statutes. NCSL.org.
• New York State Department of Financial Services. (2018). Paid Family Leave Law overview. NY.gov.
• American Bar Association. (2018). Workplace drug testing policies in light of marijuana legalization. ABA Journal, 104(6), 44-50.