Employment Law Trends
The world of employment law evolves over time. Workplace practices that are clearly illegal now were perfectly common 100, 50, or sometimes less than 20 years ago. Laws that have been around for decades are interpreted by the courts in new ways, and state and federal legislative bodies enact new laws all the time. Although there is no way to know the future, certain changes can be expected. Over time, employment laws typically evolve in favor of employees, not employers. Think about work conditions and employee rights one hundred years ago and compare it to today. More liberal states and courts tend to adopt employee-friendly laws first, but over time the whole country often ends up making the same changes.
These are some of the trends we expect to see in employment law over the next few years:
-Sexual orientation discrimination: The United States Supreme Court recently heard arguments on a case about whether Title VII, the federal law that prohibits discrimination on the basis of sex, includes a prohibition on discrimination based on sexual orientation. The Court has not yet issued its decision. Right now, there is something called a “circuit split,” meaning some courts have decided one way and other courts have decided differently about this issue. No matter what the Court decides, it will drastically change employment law for several states. If the court does NOT decide that sexual orientation is protected under Title VII, it is likely that individual states that have not already done so will enact new laws to offer that protection. It is also likely that a decision against protecting sexual orientation will lead to more public awareness of the issue, which could in turn lead to pressure to pass new laws making sexual orientation discrimination illegal. No matter what the Court decides, there’s a very good chance that, one way or another, discrimination in the workplace on the basis of sexual orientation will be considered illegal very soon.
-Arbitration agreements: California is often a bellwether state for advancements in employment law. While some California state laws are never enacted on a national level or adopted in more conservative states, many federal employee rights that we have now were available in California long before the rest of the country adopted them. California recently passed a state law that outlaws the use of mandatory arbitration agreements in employment claims related to certain state laws and under certain conditions where the employees did not have much choice. This law may be too drastic for other states to adopt anytime soon. Michigan law generally gives people a very broad ability to enter into contracts, including arbitration agreements. While it is likely that this law could prompt states to question the enforceability of arbitration agreements where employees were effectively forced into them, it is not as likely that the whole country will ban employment arbitration agreements in the near future.
-Noncompete agreements: Similar to arbitration agreements, noncompete agreements are also being called into question. Like arbitration agreements, employees are often pressured into signing noncompete agreements as a condition of keeping their jobs. Several state executives have complained about this practice, and the Federal Trade Commission has announced that it will examine the issue.
-Employee misclassification: California is also passing laws to crack down on misclassification of employees. Workers are often considered to be “independent contractors” when, as a matter of law, they should be considered employees. This is a trend that is much more likely to be seen nationwide as the legal concept generally already exists on a federal level.
-Marijuana: Marijuana as it relates to employment law has been on the list of evolving topics for years. However, those lists have all been accurate, as laws relating to marijuana HAVE been evolving, including with respect to employment law. Right now, the intersection between marijuana and employment law is mostly a state issue. Certain states afford more protection for marijuana usage and some states have none. In Michigan, while marijuana usage has been legalized, there is no protection from employment discrimination based on marijuana usage. The only exception to this, under Michigan or Federal law, is as it relates to a disability. If an employee uses marijuana for medicinal purposes relating to a disability, that usage MAY be protected. A court would have to look at all the circumstances, including whether allowing an employee to use marijuana (outside of or even during work) is a reasonable accommodation and whether it creates any sort of undue hardship for the employer (such as safety concerns.)
For more information, contact Gold Star Law.
