Part I of this post offered predictions related to DOL Opinion Letters and a likely rule increasing the minimum exempt salary level under the FLSA. This Part II offers three more predictions involving legal issues quite different from wage and hour concerns.
Prediction 3: Continuing and Increasing Focus on Harassment in the Workplace.
2017's #MeToo movement empowered and emboldened individuals to bring forward stories of sexual harassment and assault in and out of the workplace. Allegations of sexual harassment continue to dominate headlines and this trend shows no signs of slowing down. 2018 will likely see these claims leveled against managers and executives at companies of all sizes and types, not just celebrities or very high-profile figures. It seems that the #MeToo movement has greatly reduced the negative stigma associated with raising these allegations, so the overall volume will likely increase as the year continues.
If you have not already done so, your Company should implement appropriate written policies and training at all levels of the organization to actively try to change or better the culture at work. The two-part process of training employees and holding them strictly accountable is the only proven way to create the major paradigm shifts that some employers need to end and prevent this type of behavior from happening in the workplace.
Prediction 4: Retaliation Claims Will Continue to Dominate.
The EEOC's data shows that the number of retaliation claims continue to outpace other claims in charges of discrimination filed with that agency. One reason for this is because retaliation claims are often included with other claims as "tag-along" claims. While there are certainly instances where a retaliation claim is filed alone, most frequently retaliation claims (often flimsy ones) are tacked on to more substantive discrimination allegations.
There are two primary reasons behind this. First and foremost, the more claims there are in a charge or lawsuit, typically the more it will cost the employer to defend the case. Charging parties (and their attorneys) try to use the greater defense costs of additional claims as leverage for a more favorable settlement. Second, retaliation claims are often easier to pursue than other claims, since all an employee must do in many instances to survive summary judgment and get their case in front of a jury is complain verbally about discrimination or harassment to someone in management relatively close in time prior to the employee's termination or other adverse employment action. Sometimes that's all they need to show to get in front of a jury.
So, it's no huge surprise at all that retaliation claims continue to surge, and there's no reason to think this trend will slow in 2018. Employers should consider any complaints from employees (either in writing or verbally) prior to taking any action against employees to help prevent retaliation claims arising (and to reduce the risk they might have any merit).
Prediction 5: Marijuana in the Workplace Will Get Renewed Focus.
Medical and recreational marijuana is now legal in 8 states. More than half of all states allow for limited use of medical marijuana under certain circumstances. For instance, Louisiana, West Virginia, and a few other states allow only cannabis-infused products, such as oils or pills, for medical uses. Other states have passed narrow laws allowing residents to possess cannabis only if they suffer from select medical illnesses. There are 21 states with broader medical marijuana laws.
Marijuana is, however—whether for medicinal or recreational purposes—still illegal as a Schedule I controlled substance under federal law. So, the question remains: If an employee in a state where medical marijuana is legal has been prescribed the medication by a physician, can the employee be fired for testing positive for marijuana on a drug test?
The answer remains unclear. One case from Colorado held that while marijuana is illegal under federal law as a Schedule I drug (which means it officially has no medicinal uses under federal law), an employee is not protected for discipline or discharge for a positive test. Another case from Rhode Island held that an employer could not refuse to hire a medical marijuana cardholder when the prospective employee said that she would fail a pre-employment drug screening. A third case from Massachusetts held that an employee's off-duty use of medical marijuana was not a "facially unreasonable accommodation" under state law.
Amid this backdrop of uncertainty, employers with operations in states with legalized medical marijuana should evaluate their current drug testing policies (if they haven't done so recently), consider their legitimate reasons for testing their employees (such as safety or business-related reasons), and be sure to engage in the interactive process when dealing with employees who establish their marijuana use is prescribed for medical purposes.
Conclusion
2018 is sure to be full of exciting and even surprising developments in the world of labor and employment law. We will continue to update you on these topics, re-visit our "predictions" and address any unexpected changes throughout the year.
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.
