United States: [Podcast]: The Employment Law Landscape In 2019

In this episode of The Proskauer Brief, partner Evandro Gigante and associate Arielle Kobetz discuss the labor and employment landscape in 2019, including some significant laws set to go into effect this year, as well as other legislative developments. They will highlight cases pending before the Supreme Court and what we can expect from the National Labor Relations Board (NLRB). Be sure to tune in for this 2019 preview.

Listen to the podcast click here

Evandro Gigante: Welcome to the Proskauer Brief, hot topics in employment and labor law. I'm Evandro Gigante, and I'm joined by Arielle Kobetz. Today we will discuss the labor and employment landscape in 2019, including some significant laws set to go into effect this year, as well as other legislative developments, cases pending before the Supreme Court, and what we can expect from the NLRB. Arielle, what is one of the biggest changes to the labor and employment landscape in 2019?

Arielle Kobetz: Well, I'm not sure it's a change necessarily, but I think we will continue to see activity in the #MeToo space, with continued emphasis on internal and external complaints, investigations and possibly litigation. For its part, the EEOC continues to focus on enforcing the federal anti-discrimination statutes in 2018, filing 66 harassment lawsuits in fiscal year 2018. 41 of which included allegations of sex harassment. This is more than a 50 percent increase in suits challenging sex harassment from fiscal year 2017. I think it's fair to say that the trend is likely to continue into 2019. Given the impact of the #MeToo movement, many states and cities have passed new laws combatting sexual harassment in the workplace. For example, in addition to complying with new state laws requiring employers to implement written anti-harassment policies, and provide annual anti-harassment training to all employees, employers in New York City must also comply with the Stop Sexual Harassment Act, which takes effect on April 1, 2019. Under that New York City law, employers with 15 or more employees will be required to conduct annual interactive, anti-sexual harassment training for all employees who work more than 80 hours in a calendar year. Qualifying employers in California and Delaware must also provide anti-sexual harassment training to all employees by January 1, 2020, and then again every two years. Notably, in California, employers with at least five employees, must provide two hours of anti-harassment training to all supervisors, plus one hour of anti-harassment training to all non-supervisory employees every other year. The requirement to provide non-supervisory employees with training is new. In addition to these new sexual harassment laws, we will also see new leave laws take affect this year. Evandro, tell us about some of those laws.

Evandro Gigante: Certainly. Massachusetts Paid Family and Medical Leave Program will provide eligible employees with up to 20 weeks of paid medical leave for an employee's own serious health condition. Employees eligible will also have access to 12 weeks per year of paid leave for family care purposes. After some political debate and negotiation, Michigan will also see its paid medical leave act take affect this year. Beginning March 29 of 2019, employers in Michigan with 50 or more employees will be required to provide paid medical leave for personal or family health needs for employees. Unlike the Massachusetts law, Michigan's law will only require employers to provide 40 hours of paid leave per benefit year. Beyond leave laws, what other significant measures will be taking effect this year?

Arielle Kobetz: Well, Connecticut's prohibition on salary inquiry histories took effect on January 1st, and prohibits employers from asking about an applicant's salary history unless the applicant has voluntarily disclosed such information. In addition, employers cannot prohibit employees from disclosing or discussing the amount of their wages or the wages of another employee that has been voluntarily disclosed by that other employee. Under the law, employees can bring a private right of action against violating employers, seeking compensatory and punitive damages, as well as attorney's fees. This, of course, is similar to laws that already exist in other jurisdictions, such as California, Delaware, New York City and Massachusetts. In addition to laws taking effect this year, politicians around the country are calling for new legislative measures in their states. Evandro, why don't you tell us about some of those?

Evandro Gigante: Lawmakers in California, Maine, Nebraska, New Hampshire, Vermont and Virginia have all introduced or announced plans to introduce paid family leave legislation. Now, while employees in California are already eligible for up to six weeks of paid family leave benefits, the new proposal would increase that benefit to six months. In terms of paid vacation, New York City's Mayor Bill de Blasio recently proposed a law that would require private employers with five or more employees to provide up to 10 days of paid vacation to full and part-time employees each year. This is in addition to sick and safe leave entitlements that employees in New York City already receive. Arielle, what employment issues are making their way to the Supreme Court.

Arielle Kobetz: The Supreme Court is currently contemplating whether to grant review on a trio of employment discrimination cases involving sexual orientation and gender identity. While some circuit courts have held that Title VII's prohibition against discrimination on the basis of sex, includes protections for sexual orientation and gender identity, others have not. The Supreme Court has yet to decide the matter. Likewise, the Supreme Court is weighing whether to grant cert to review the Ninth Circuit's recent decision in Yovino v. Rizo. There, the Ninth Circuit ruled that under the equal pay act, salary history cannot be used as a factor for justifying a pay disparity between male and female employees. Evandro, what can we expect from the NLRB this year?

Evandro Gigante: Well, we may see the Board turn its attention back to its 2014 election rule, which modified the Board's representation election procedures. Early last year, the Board sought and extended the timeframe for submitting feedback on whether the rules should be changed, but it has not yet taken action since then, so it remains to be seen whether these new rules will be issued. In a fairly recent development, the Board has modified the test for whether an individual is considered an employee or an independent contractor under the NLRA, in a case called Super Shuttle DFW, where the Board rejected the standard established in 2014, which actually limited the significance of an individual's entrepreneurial opportunity when determining whether someone is an independent contractor or an employee. Instead, the Board has now returned to its traditional common law agency test, which applied prior to 2014. Not long after this decision was issued in January of this year, the Board's chairman suggested that the Board may actually propose new regulations to further clarify the independent contractor versus employee analysis, so that is certainly something to be on the lookout for.

From a practical perspective, we'll also see regional offices move away from practices that have been in place since the 1980's concerning the case handling process. Last year, the NLRB's general counsel Peter Robb issued a memorandum, which set forth goals to reduce case processing time at the board by five percent. To do so, the general counsel eliminated prior case processing guidelines and really granted the regions the discretion on how they would process cases in order to achieve that goal of a five percent reduction in processing time. The discretion granted to regions may result in a significant variation in how cases are processed in different NLRB regions across the country. Thank you for joining us on the Proskauer Brief today. Stay tuned for more insights on the latest hot topics in labor and employment law and be sure to follow us on iTunes, Google Play and Spotify.

Update: On February 25, 2019, after the recording of this episode, the U.S. Supreme Court vacated the Ninth Circuit's decision in Yovino v. Rizo due to the death of Judge Stephen Reinhardt, stating that the appeals court should not have counted the vote of the ruling's author because he died before the decision was issued.

[Podcast]: The Employment Law Landscape In 2019

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions