In response to the #MeToo movement that surfaced in 2017, many states and cities have enacted or proposed legislation to address sexual harassment in the workplace. For example, New York State now requires employers to provide anti-harassment training on an annual basis, and to adopt investigation procedures for handling complaints of harassment. New York employers are no longer authorized to require that the underlying facts and circumstances of a sexual harassment claim be kept confidential as part of a settlement of such a claim. New York employers not covered by the Federal Arbitration Act can no longer require pre-dispute arbitration agreements covering such claims. The #MeToo movement has also prompted some employers voluntarily to discontinue arbitration as a means of resolving certain employee disputes.

The U.S. Supreme Court continues to make decisions rejecting efforts to invalidate employers’ pre-dispute arbitration agreements. In May 2018, the Court held in a 5-4 majority decision that arbitration agreements must be enforced as written, and that class- and collective-action waivers in employment arbitration agreements are permissible under the National Labor Relations Act. In reaction to the Supreme Court’s decision, some lawmakers have introduced bills to forbid class and collective-action waivers in employment arbitration agreements, and some major employers have indicated that they will no longer require employees to sign arbitration agreements.

In May 2018, in the case of Dynamex Operations West, Inc. v. Superior Court, the California Supreme Court replaced the old test for determining whether a worker is an employee or an independent contractor with the three-part “ABC” test. The “ABC” test requires the employer to establish the following:

• that the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract and in fact;
• that the worker performs work that is outside the usual course of the hiring entity's business; and
• that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.

As a result, many businesses in California will need to examine their use of independent contractors, including any independent contractor agreements, to ensure compliance with the new California “ABC” test.

The U.S. Supreme Court is expected to rule in the first quarter of 2018 on whether employers may lawfully include class action waivers in arbitration agreements with employees. The effects of the decision will be widespread, particularly for employers with class action waiver arbitration programs currently in place.

In response to a growing concern that pay inequity among men and women is in large part due to systemic disparities, many states and localities have enacted laws that prohibit employers from inquiring about prior compensation as part of the recruitment process. Some laws prohibit prior salary history being relied on as a factor in setting compensation for a new hire, while others make it an unlawful employment practice to inquire about prior salary.

The “me too” movement will continue into 2018. 2017 will be remembered as the year in which prominent men in the media, politics and other industries have been accused of sexual harassment and even assault, resulting in the termination of their employment and, in some cases, lawsuits. This movement has, however, had an impact broader than just an uptick in claims. Tax reform legislation eliminates the deductibility of confidential settlements of sex harassment or abuse claims. Multiple bills are pending in Congress that would preclude employers from using pre-dispute arbitration agreements for sex discrimination claims under Title VII and one would effectively preclude pre-dispute arbitration agreements in the employment setting altogether. This movement has also driven a continued focus at the federal, state and local level on the enforcement of pay discrimination laws.

President Trump campaigned on overturning the Affordable Care Act, cancelling President Obama’s Executive Orders, and rolling back federal regulations. Details on such policies remain pending. Of note, two of President Obama’s policies hang in the balance. First, a Department of Labor final rule increasing the threshold salary for the white collar exception to the Fair Labor Standard Act’s minimum wage and overtime pay protections was supposed to go into effect last November but is currently stayed by a federal court. Second, President Obama’s Fair Pay and Safe Workplaces Executive Order requiring prospective federal contractors to report labor law violations and pay transparency data was supposed to be operational last October but is currently stayed by a federal court. It is not yet known how President Trump will proceed with either litigation or the regulations generally. President Trump will have the opportunity to appoint members to the National Labor Relations Board and the Equal Employment Opportunity Commission in 2017.

Various states have enacted laws prohibiting employers from paying employees wage rates that are less than what they pay employees of the opposite sex for “substantially similar” work. Many states have increased reporting requirements and record retention requirements. In 2017, states and cities will also be considering wage inquiry bills that would prohibit an employer from asking a prospective employee about her prior earnings.

The California and New York legislatures have enacted legislation to raise the minimum wage. On election day, voters approved ballot measures that will raise state minimum wages beginning on January 1, 2017 in Arizona, Colorado, Maine, and Washington.

The Dodd-Frank Whistleblower Program awarded multi-million dollar awards to individuals who voluntarily provided original information about possible violations of federal securities laws.

Under President Obama, various federal agencies required, or recommended, that bathroom access be provided to match an employee’s stated gender identity. Six states have laws requiring that employees have the right to use facilities consistent with their gender identities. In contrast, eleven states sued the federal government over similar guidelines for public school facilities.

The Defend Trade Secrets Act provides trade secrets with the type of protection afforded to other types of intellectual property. Wrongful acquisition or wrongful use or disclosure of trade secrets violates the law.

The Act contains whistleblower protections. Employers must provide notice of the immunity in any new or updated agreements that govern trade secrets or confidential information.