Looking into the crystal ball: Labor and employment law predictions for 2018

​Dec. 18, 2017

By Mathew A. Parker​

As we prepare to ring in the New Year, it's time for Ohio employers to begin planning for the next wave of employment law trends predicted for 2018. With President Trump in the White House and Republican control of Congress, employers will see continued deregulation at the federal level and an uptick in state- and local-level protections. As a result, employers can expect to confront the growing challenge of operating within a patchwork of differing state and local laws. While Ohio tried to end such local legislation through Senate Bill 331, the law has been challenged. Looking ahead, employers should have these five employment law trends on their radar:​

1. A shift in paid leave

Last year, states and localities saw a flurry of legislative activity introducing new or expanding existing paid leave laws. More than 100 paid sick leave bills were introduced at the state level, and more than 10 were introduced locally. In 2018, Ohio employers can expect such legislation to continue. However, as a result of the recently introduced Workflex in the 21st Century Act in Congress, it may occur at a lower rate. If enacted, this bill would exempt employers from state and local paid leave laws if they offer employees a minimum number of paid sick days per year and institute a flexible work arrangement.

2. The emergence of predictive scheduling

In recent years, predictive scheduling has increasingly gained steam among lawmakers nationwide. Generally, these laws require employers—mostly in the food, retail and hospitality industries—to provide employees with advance notice of their work schedule and any changes. Some even go so far as to provide "predictability pay," which guarantees a minimum level of pay if schedule changes are made on short notice. Predictive scheduling legislation has already been introduced or passed at the state or local level in many states, including Ohio. In 2018, affected employers should review their scheduling practices and consider retraining managers to ensure compliance with these laws.

3. Growing ban-the-box movement

Ban-the-box laws typically prohibit inquiries about a job applicant's criminal history in an employment application. They are designed to prevent employers from eliminating applicants with a criminal record from the hiring process, without first considering their qualifications for the position. Although criminal history still comes into play, ban-the-box laws merely delay its consideration until later in the hiring process. Support for these policies has grown exponentially in recent years. In fact, 29 states—including Ohio—have already adopted some form of a ban-the box law. While Ohio's law only applies to public-sector employers, it wouldn't be surprising if this law is extended to private employers given the national trend.

4. The fight for pay equity

States and localities continue to evolve their strategies to curb pay discrimination, including recently introduced laws restricting inquiries into an applicant's salary history during the hiring process. Last year, more than 100 equal pay bills were introduced at the state level. In 2018, Ohio employers can expect these efforts to continue, especially given the White House's reprieve of the EEO-1 reporting requirements, which were substantially expanded to include data on pay and hours worked. The Equal Employment Opportunity Commission and Office of Federal Contract Compliance Programs had planned to use the new data to increase enforcement of federal wage bias laws. Although Ohio currently allows inquiries into salary history, the Sixth Circuit Court of Appeals—which covers Ohio—has interpreted the federal Equal Pay Act to prohibit employers from relying on salary history as the sole justification for differing pay among otherwise-equal employees.

5. A change in federal enforcement strategies

Last year, the Trump administration began the process of rescinding many positions, priorities and enforcement strategies of the Obama administration. It's likely these reversals will result in laxer federal enforcement of laws, such as equal employment laws, the Fair Labor Standards Act, National Labor Relations Act and more. While this may come as welcome news to many Ohio employers, there is always some concern it could lead to an uptick in private lawsuits.

As federal enforcement of employment laws take a backseat to President Trump's and Congressional Republicans' legislative priorities in 2018, Ohio employers can expect new legislation to be introduced at the state and local levels. In preparation, they should continue to monitor the growing patchwork of differing state and local laws, and regularly update their policies and procedures as needed to comply with these laws.​

Mathew Parker is an associate attorney at the Columbus office of Fisher Phillips, a national management-side labor and employment law firm.​

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