Happy New Year to all of our friends, clients, and colleagues! At Falls Legal we always like to predict developments in employment law at the beginning of the year. With a new Presidential administration entering the White House this month, employees can expect some changes in the months to come. We are listing our top 7 predictions for employment law this year. Some of these predictions relate specifically to wage and hour issues and others relate to employment law issues generally.\r\n\r\n1. Longer wait times at the EEOC.\r\n\r\nOne thing is all but certain and that is a shrinking budget for the EEOC to investigate claims of workplace discrimination, harassment, and retaliation. A shrinking agency budget is likely to result in longer wait times for employees during the EEOC investigative process. This only emphasizes the importance of having a capable and competent attorney assist during the EEOC process. Requesting a notice of right to sue earlier in the process is the likely end-result.\r\n\r\n2. More Private FLSA Actions and Fewer DOL Wage Investigations\r\n\r\nPresident-elect Trump has nominated Andy Puzder to serve at the new Secretary of Labor and oversee the DOL. It is likely that the number of DOL wage and hour investigations will decrease under his administration. This does not mean that private actions will decrease. In fact, I would expect to see an uptick in the number of private actions filed as the DOL decreases its emphasis on investigations. Private law firms will be tasked with ensuring employers comply with wage and hour laws.\r\n\r\n3. Class Action Waivers in Arbitration Agreements May Meet Their Demise…..Or Will They?\r\n\r\nThere are 4 petitions pending before the U.S. Supreme Court relating to the enforceability of class action waivers contained in employment arbitration agreements. It is very possible the Supreme Court will accept one of the petitions and the case will be heard later this year. If that happens, we will have some clarity on this issue once and for all.\r\n\r\n4. New Overtime Rule Relating to White Collar Exemption\r\n\r\nAs you have probably heard, President Obama and the DOL finalized a new rule in 2016 that would provide for overtime pay for anyone earning less than $47,000.00 per year. That rule was scheduled to go into effect on December 1, 2016, but a federal judge in TX halted implementation of the new rule. That decision has been appealed to the 5th Circuit. We will wait to see what happens with the 5th Circuit decision, whether that decision is appealed to the U.S. Supreme Court and what actions the Trump administration may take on their own accord in the meantime.\r\n\r\n5. LGBT Issues\r\n\r\nA circuit split is developing over whether sexual orientation is a protected category under Title VII. The EEOC’s current position is that it is covered. However, it will be interesting to see whether the EEOC’s position changes under the Trump administration and how the circuit courts continue to analyze the issue. For the time being, you should consult with an attorney in your jurisdiction to determine whether sexual orientation is a protected category in your Circuit.\r\n\r\n6. Minimum Wage Hikes\r\n\r\nI would not expect any increases in the federal minimum wage during the Trump administration. However, as the federal minimum wage remains stagnant, I would expect state based minimum wage laws to be on the move, at least in some states. I would not expect any changes to the state minimum wage in South Carolina.\r\n\r\n7. Paid Child Care/Maternity Leave\r\n\r\nDuring the campaign, Ivanka Trump was a supporter of federally mandated paid maternity and childcare leave. At the present time, the FMLA covers many employees taking leave for maternity/paternity. Of course, FMLA is unpaid leave and only applies to companies with more than 50 employees within a 75 mile radius. We will have to wait and see whether President-elect Trump follows through on paid child care leave.
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