This Employment Law This Week® Monthly Rundown features a recap of the most important news from January 2019. The episode includes:

1. Illinois Supreme Court Rules for Biometric Privacy

A cause of action under Illinois’s stringent biometric privacy law does not require a plaintiff to be able to show that he or she suffered actual harm. The Illinois Supreme Court has held that the only requirement is proof of a violation of the individual’s rights. The case in question involved a teenager who was fingerprinted when he bought a season pass to an amusement park. We spoke to Jimmy Oh, from Epstein Becker Green, about the implications of this decision for employers.

Click here for more: ebglaw.com/eltw135-tmt

2. High Court Limits Court Powers in Arbitration Decisions

The U.S. Supreme Court has limited court powers to determine whether a case can be arbitrated. In his first opinion on the Supreme Court, Justice Brett Kavanaugh found that that a court cannot disregard an agreement that grants arbitrators the authority to determine whether a case is arbitrable. The issue at hand was whether, under the Federal Arbitration Act, a court may ignore this sort of provision if it finds the argument for arbitration to be “wholly groundless.” Writing for a unanimous court, Justice Kavanaugh said that courts could not “rewrite the statute passed by Congress and signed by the President.”

3. DOL Takes Final Step on New Overtime Rule

The Department of Labor (DOL) has moved forward on its new overtime rule. The DOL has sent the proposed new rule to the Office of Management and Budget, the final requirement before publication. The DOL originally proposed a new overtime rule in May 2016 at the end of the Obama administration. That rule was invalidated by a federal court in Texas shortly before it would have taken effect. The new rule is expected to raise the current minimum salary for “white collar” exemptions from $455 per week, and it could change the streamline tests for other exemptions under the Fair Labor Standards Act.

4. NLRB Update on Joint-Employer Issues

The National Labor Relations Board (NLRB) reinstated its rule on independent contractor classification. The NLRB has overturned its own 2014 decision, making it easier for certain workers to be classified as independent contractors under the National Labor Relations Act. The revived rule relied on by the NLRB allows for the consideration of “entrepreneurial opportunity,” among other factors, while the 2014 standard did not. The public comment period for the NLRB’s proposed rule establishing new joint-employer standards concluded on January 28, with replies now due by February 11. Chairman John Ring has indicated that the NLRB is also looking at additional rulemaking.

Click here for more: ebglaw.com/eltw135-mm

5. Tip of the Week

Ben Pring, Co-Founder and Managing Director of Cognizant’s Center for the Future of Work, shares some advice about artificial intelligence in the workplace:

“This isn’t science fiction anymore. This isn’t kind of Hollywood. This is real. It’s happening now. And it’s an important moment in which people who are doing that work, whether you’re leading a team or whether you’re kind of in the midst of that work, it’s an important time for people to be paying attention. So, we sometimes talk about the fact that we think really the formula for the future of work is X + AI, ‘X’ representing whatever it is you do, whether you’re a lawyer, whether you’re a teacher, whether you’re a doctor, that’s the X; inject AI into that . . . add AI into that, X + AI, and that’s how you get to the next, you know, performance threshold, the next level of productivity in whatever it is you do. But we also talk about the fact that it’s not, you know, technology for technology’s sake that really ultimately we’re all interested in. It’s changing work for the better, making better work.”

Visit EmploymentLawThisWeek.com.

These materials have been provided for informational purposes only and are not intended and should not be construed to constitute legal advice. The “Tip of the Week” offers one perspective on possible human resource ideas or business practices. It presents the perspective of an individual not affiliated with Epstein Becker Green and should not be considered legal advice. The content of these materials is copyrighted to Epstein Becker & Green, P.C. EMPLOYMENT LAW THIS WEEK® is a registered trademark of Epstein Becker & Green, P.C. ATTORNEY ADVERTISING.

A breaking news segment from Employment Law This Week®, featuring attorney Frank Morris of Epstein Becker Green:

As the longest government shutdown in U.S. history continues, Frank Morris joins us to discuss the shutdown’s effects on employment litigation, and the slowdown of cases and rulemaking at the Equal Employment Opportunity Commission (EEOC).

We invite you to view Employment Law This Week® - tracking the latest developments that could impact you and your workforce. The series now features three components: Breaking News, Deep Dives, and Monthly Rundowns.

Watch the series and subscribe for email notifications: EmploymentLawThisWeek.com.

These materials have been provided for informational purposes only and are not intended and should not be construed to constitute legal advice. The content of these materials is copyrighted to Epstein Becker & Green, P.C. EMPLOYMENT LAW THIS WEEK® is a registered trademark of Epstein Becker & Green, P.C. ATTORNEY ADVERTISING.

This Employment Law This Week® episode features a recap of the biggest employment law trends from 2018 and a look ahead at what’s to come in 2019. Specifically, this episode includes the following:

1. #MeToo Movement in the Workplace

For employers, 2018 was the year of #MeToo. While the movement began in the fall of 2017, last year, it touched every aspect of employment law—from harassment training to arbitration.

Jennifer Gefsky (Member of the Firm, Epstein Becker Green):

“I think if the #MeToo movement taught us one thing, it’s that employers face significant liability and risk in the event that allegations are made against any employee or supervisor or the highest-level executive at the company.”

In 2019, we can expect to see more legislative action, particularly in the area of equal pay, where much of the #MeToo focus has shifted.

Click here for more: ebglaw.com/news/2018-workforce-wrap-up-and-a-look-forward/

2. AI in the Workplace

In 2018, many employers put the potential of artificial intelligence (“AI”) into practice. AI is being adopted at a rapid pace across the country, and the changing landscape is creating complex concerns around workforce management.

Michelle Capezza (Member of the Firm, Epstein Becker Green):

“With the changes in automation and artificial intelligence being introduced into the workplace, employers really need to strategically plan for the future and determine what the future composition of their workforce will be.”

This year, we expect to see an increased focus on adjusting employee benefits programs for automation and AI, and, in reaction to the proliferation of this technology, increased attempts to protect employee privacy.

3. A Year of Transition

Indeed, 2018 was a year of transition, as the federal policy started to catch up with the political moment in Washington. We saw that in a hotly contested confirmation of Brett Kavanaugh to replace Justice Anthony Kennedy, cementing a 5-4 conservative majority on the U.S. Supreme Court.

Jim Flynn (Member of the Firm, Epstein Becker Green):

“Management and employers will, I think, have a friend in Judge Kavanaugh on the bench.”

We saw transition in the Department of Labor and, more slowly, in the National Labor Relations Board (“NLRB” or “Board”). The Board’s battle over joint-employer relationships continued right up to the end of 2018, when the U.S. Court of Appeals for the District of Columbia Circuit finally issued its decision in Browning-Ferris. To the surprise of many, the court did not reject the joint-employer standard that the 2016 Board used in that case, but remanded to the NLRB to clarify its application of the test to the facts. It remains to be seen whether this will have any effect on the proposed joint-employment rules published last September.

4. More Transition in 2019

We begin the year at an important inflection point. A standoff is brewing over several agency vacancies that require Senate confirmation. The Senate did not confirm Mark Pearce for another term on the NLRB, or Chai Feldblum for another term on the Equal Employment Opportunity Commission (“EEOC”). Both first served under President Obama and were nominated for new terms by President Trump in 2018. Both faced significant resistance from Republicans in the Senate and their nominations died when Congress ended its session last month.

Gender identity in the workplace, medical and recreational marijuana, data privacy—2019 promises answers to some big questions about how our workplaces will function going forward. We saw with the Epic ruling last year how the entire debate over class action waivers can seemingly be resolved in a single Supreme Court decision. Maybe the 2019 court will make its mark on employment law as well.

There is much for employers to anticipate in the year ahead, and Employment Law This Week will continue to keep you informed.

Visit EmploymentLawThisWeek.com.

These materials have been provided for informational purposes only and are not intended and should not be construed to constitute legal advice. The “Tip of the Week” offers one perspective on possible human resource ideas or business practices. It presents the perspective of an individual not affiliated with Epstein Becker Green and should not be considered legal advice. The content of these materials is copyrighted to Epstein Becker & Green, P.C. EMPLOYMENT LAW THIS WEEK® is a registered trademark of Epstein Becker & Green, P.C. ATTORNEY ADVERTISING.

A breaking news segment from Employment Law This Week®, featuring attorney Tzvia Feiertag, Member of the Firm:

On Friday, December 14, 2018, a Texas federal judge ruled that the Affordable Care Act (ACA) should be invalidated. If the decision is upheld, it could have a major impact on employers, especially those sponsoring group health plans. For now, employers should remain in compliance with the ACA as the appeal process continues.

We invite you to view Employment Law This Week® - tracking the latest developments that could impact you and your workforce. The series now features three components: Breaking News, Deep Dives, and Monthly Rundowns.

Watch the series and subscribe for email notifications: EmploymentLawThisWeek.com.

These materials have been provided for informational purposes only and are not intended and should not be construed to constitute legal advice. The content of these materials is copyrighted to Epstein Becker & Green, P.C. EMPLOYMENT LAW THIS WEEK® is a registered trademark of Epstein Becker & Green, P.C. ATTORNEY ADVERTISING.

The #MeToo movement has brought with it a heightened focus on equal pay and executive compensation. As employers are evaluating bonuses and comp structures this year-end, Gretchen Harders, from Epstein Becker Green, explains how to navigate the new environment.

This is an extended interview from Employment Law This Week® (Episode 133: Week of Dec. 10, 2018), an online series by Epstein Becker Green. youtu.be/f1GcUwmlr1s

Visit EmploymentLawThisWeek.com.

These materials have been provided for informational purposes only and are not intended and should not be construed to constitute legal advice. The content of these materials is copyrighted to Epstein Becker & Green, P.C. EMPLOYMENT LAW THIS WEEK® is a registered trademark of Epstein Becker & Green, P.C. ATTORNEY ADVERTISING.