All of us thought 2020 was an eventful 12 months however it seems that was simply the beginning; 2021 had its fair proportion of surprises and noteworthy information tales. As we head into 2022, it seems to be we’re in for an additional fascinating 12 months by way of employment legislation. Beneath are a few of the potential traits, tales, and inquiries to look out for in 2022.
Adjustments to Distant Work
One of many greatest adjustments to the labor sector as a result of coronavirus is the dramatic improve in telecommuting. Working from residence may even be a part of the “new regular” after the coronavirus is not a pandemic. This can hopefully result in a web constructive for employees, but when not applied correctly, distant work might result in its personal set of issues for workers.
One potential downside is that workers might work extra hours. Whether or not it’s attempting to show their productiveness to their superiors, the need for skilled development, or the blurring between private and work time, it’s simple to clock extra hours at residence than within the workplace.
A second subject may very well be employers spying on or monitoring their at-home employees. Regardless of proof suggesting that workers who make money working from home are simply as productive (if no more productive) as their workplace counterparts, many employers nonetheless wish to monitor the work of their distant workers.
A 3rd unlucky development in 2022 might embrace distant employees getting positioned on a separate observe as their workplace colleagues. This “distant employee observe” might result in fewer alternatives for skilled development. There are a number of potential causes to clarify why this might happen, resembling proximity bias, employers’ continued perception that individuals who make money working from home are lazier than their in-office counterparts, and distant employees’ higher issue in noticing they’re the sufferer of office discrimination.
Regardless of the attainable pitfalls of working from residence, a extra constructive development we might see in 2022 is employers and workers reaching an “asynchronous work discount.” That is the concept that distant work contains not simply working from residence, however having a versatile schedule. So workers nonetheless get of their 40 hours per week, besides these hours might come at on schedules that work finest for the staff.
For instance, the workplace employee at a selected job may work Monday by way of Friday, from 9 am to five pm. However a distant employee of the identical employer with an asynchronous schedule may work from 7 am to three pm on Monday, 12 pm to eight pm on Tuesday, 7 am to 11 am, and a pair of pm to six pm on Wednesday, and so forth. The distant worker is due to this fact working asynchronously with the workplace, however nonetheless getting their required duties achieved.
This will not work on a regular basis or for all sorts of jobs. It’s a give-and-take that would give employers the flexibility to ask workers to work on last-minute tasks or tackle further tasks, but assist avoids work creep and nonetheless preserve a work-life stability. The asynchronous work discount would assist workers take full benefit of working from residence and keep away from a few of its potential pitfalls.
U.S. Supreme Court docket Employment Regulation Instances
Whereas gun and abortion rights are getting all of the headlines, the U.S. Supreme Court docket nonetheless has many different instances on its docket, together with a couple of involving employment legislation. Its present time period started in October of 2021 and can finish in June or July 2022. Throughout this era, we should always see the U.S. Supreme Court docket hand down a couple of choices regarding the employer’s proper to compel arbitration and worker rights underneath the Uniformed Providers Employment and Reemployment Rights Act (USERRA). Three notable instances embrace:
- Morgan v. Sundance, Inc.: An worker introduced a wage declare towards her employer underneath the Honest Labor Requirements Act of 1938 (FLSA). Nonetheless, it wasn’t till litigation had begun that the employer tried to train its contractual proper to compel the worker to resolve the difficulty with arbitration. The problem is whether or not the employer waived its proper to pressure the worker to arbitrate the FLSA declare.
- Viking River Cruises, Inc. v. Moriana: An worker (on behalf of herself and equally located workers) sued her employer for numerous labor code violations underneath California legislation. As a result of the worker agreed to arbitrate any employment disputes towards the employer with particular person arbitration, the employer tried to train this proper by referencing the U.S. Supreme Court docket case, Epic Programs Corp. v. Lewis. Nonetheless, the California Supreme Court docket beforehand dominated that employers can’t implement arbitration agreements that limit an worker’s proper to deliver consultant actions underneath California legislation.
- Torres v. Texas Division of Public Security: The worker was a state trooper who was additionally within the U.S. Military Reserve. He was known as to serve and deployed in Iraq in 2007, however throughout his service, he suffered a lung harm. So when he returned from army responsibility in 2008, he might not work as a state trooper. Subsequently, the worker requested a distinct place, however his employer refused and the worker resigned. The worker sued his employer underneath the USERRA and claimed his employer ought to have supplied him a distinct place to accommodate his incapacity. His employer claims it may possibly’t be sued underneath USERRA as a consequence of sovereign immunity.
Coronavirus Office Vaccine Mandates
The Biden administration has pushed for office coronavirus vaccine mandates for numerous employee teams, together with private-sector employees (working for employers with 100 or extra workers), authorities well being care workers, federal workers and federal contractors.
On January 7, 2022 the U.S. Supreme Court docket will hear oral arguments for 2 authorized challenges regarding mandates for presidency well being care employees and private-sector workers. It’s unclear how the Court docket will rule as a result of they have an inclination to uphold vaccination necessities. Nonetheless, given the conservative make-up of the Court docket, it wouldn’t be shocking for the Court docket to strike down these mandates underneath the reasoning that the federal businesses that imposed the mandates exceeded their authorized authority.
Employee Misclassification of Unbiased Contractors
The problem of misclassifying workers as impartial contractors is a continuing concern. To assist cope with it, some states have taken motion to make clear the difficulty.
Essentially the most notable instance is California with its Meeting Invoice 5 (AB 5), which codified the ABC Take a look at. However in November 2020, California’s voters authorized Proposition 22, which basically created an exception to AB 5 for sure forms of employees, resembling these working for “gig economic system” corporations. However in August 2021, a CA trial courtroom struck down the legislation and an enchantment is predicted.
How this subject seems is of nice curiosity to corporations like Uber that rely closely on impartial contractors for his or her workforce. It’s additionally of curiosity to states which have adopted California and utilized the ABC Take a look at for employee classification in sure contexts, resembling Maryland, Illinois, New York, and Washington, D.C.
Lengthy COVID
With extra coronavirus infections due to viral mutations like Omicron, Lengthy COVID is an growing risk for a lot of employees. One of many traits we’d see in 2022 is extra workers affected by incapacity discrimination or being refused affordable lodging as a consequence of long-haul COVID.
The Nationwide Labor Relations Board
The Nationwide Labor Relations Board (NLRB) focuses on imposing legal guidelines, such because the Nationwide Labor Relations Act of 1935 (NLRA), that relate to unfair labor practices and union rights. The NLRB presently has 5 members, with three of them initially nominated by Democratic Presidents. There’s additionally a brand new Common Counsel on the NLRB who was nominated by President Biden.
With this new Democratic majority, it’s anticipated that the NLRB will subject fewer pro-management choices when deciding instances alleging violations of the NLRA.
The Employee Scarcity
The labor scarcity will exist into 2022, however we’d see some patterns beginning to emerge. For instance, with elevated bargaining energy, workers are extra prepared to stop. Relying on how and why workers stop, their departure might go away a nasty impression and/or damaging emotions with their employers. This might lead to a couple employers blackballing their former workers in an try to intervene with their future job prospects.
Relying on the circumstances surrounding the resignation, such blacklisting might represent illegal post-employment retaliation. It might additionally qualify as tortious inference with potential contractual relations.
The employee scarcity might additionally have an effect on how wage negotiations happen between employers and potential workers. Earlier than the coronavirus pandemic, many states, resembling Massachusetts, had been prohibiting employers from asking a couple of job applicant’s wage historical past.
One of many objectives of wage historical past bans was to fight the gender pay hole by stopping the cycle of underpaying employees as a result of they had been underpaid in a earlier job. Due to these new legal guidelines, employers needed to cease asking for this info. However higher leverage in favor of the job applicant means employers shall be incentivized to take a distinct method to debate compensation.
As a substitute of asking a job applicant, “how a lot did you make in your earlier job?” the employer may now ask, “what are your wage necessities for this new place?” That is an enchancment for job seekers, however nonetheless not supreme. It is because it forces the job applicant to take step one in offering a wage quantity.
Ask for an excessive amount of they usually danger not getting a job supply. Ask for too little they usually danger getting underpaid. And it doesn’t matter what they are saying, they are going to at all times second guess themselves.
In an try to enhance their skill to draw the perfect employees, employers might go additional and start wage negotiations by offering a quantity and asking the job applicant if that’s acceptable. The possible worker now has the choice to both settle for the preliminary supply or attempt to negotiate additional, a privilege historically loved by employers.
Backside Line
Loads of adjustments might are available 2022, however it seems to be like there are a number of alternatives for a lot of of those traits and developments to profit employees.