Over the past year, state and local governments responded in a variety of ways to national policy, and the midterm elections painted a picture of what’s in store for employers in 2019 and beyond. Jackson Lewis’ annual report outlines upcoming issues, trends, legislation and regulations employers need to be aware of in the coming year.

Highlights include:

While the federal minimum wage has remained stalled at $7.25 an hour since 2009, there has been significant movement at the state level, with some states enacting a minimum wage rate that is now more than double the federal level.

Seattle is currently the leader for 2019, increasing its minimum wage to $16.00 per hour beginning in January for large employers (those with more than 500 employees). New York is close behind, increasing the minimum wage to $15.00 per hour for large employers located in New York City, though the state minimum will be $11.10 in 2019.

The Department of Education (DOE) released proposed Title IX regulations dictating the process by which colleges and universities must handle allegations of sexual misconduct on November 16, 2018.

The Wage and Hour Division (WHD) of the Department of Labor (DOL) has reissued a 2009 opinion letter, effectively withdrawing enforcement guidance that made the tip credit under the Fair Labor Standards Act (FLSA) unavailable for tipped employees who spend more than 20% of their time performing allegedly non-tip-generating duties.

Most safety incentive programs and post-incident drug testing policies will not be considered retaliatory and unlawful under a new Standard Interpretation from the Occupational Safety and Health Administration (OSHA).

On September 27, 2018, the Kentucky Supreme Court issued its opinion in Northern Kentucky Area Development District v. Snyder, No. 2017-SC-000277-DG, and held that Kentucky employers may not require employees to sign arbitration agreements as a condition of their employment. 

In reaching its conclusion, the Court relied upon KRS 336.700(2), which states:

The National Labor Relations Board has published a proposed rule outlining a new standard for determining joint-employer status under the National Labor Relations Act. The Board’s decision to use its rulemaking authority — rather than fact-specific decisional law — could provide employers the clarity and predictability needed to avoid unwanted joint-employer relationships.

The U.S. Supreme Court will begin its 2018-2019 Term with a docket full of cases significant to employers and businesses. Cases to watch involve questions on employment discrimination and class arbitration, among other things.

Age Discrimination in Employment Act

On the first day of the term, October 1, 2018, the Court will hear oral argument on whether the Age Discrimination in Employment Act (ADEA) applies to all state political subdivisions, regardless of size. Mount Lemmon Fire District v. Guido, No. 17-587.

The Department of Education (DOE) reportedly has drafted proposed Title IX regulations on sexual misconduct on college and university campuses. Although the Department has yet to officially publish the proposed regulations, on August 29, 2018, The New York Times reported on the unofficial draft.

A new model “A Summary of Your Rights Under the Fair Credit Reporting Act” disclosure form document was released on September 12, 2018, by the Consumer Financial Protection Bureau (CFPB). Employers and background check companies should begin using the new form by September 21, 2018.