What’s Coming in Employment Law
NEWSLETTER VOLUME 2.2
|January 09, 2024
What's Coming in Employment Law
Hello 2024. It's an election year. Congress is still dysfunctional. The Supreme Court has some important cases that could affect employers and federal agencies. And states will continue to enact new legislation depending on their political persuasion.
For laws involving the internet, AI, and digital communications, this gets tricky. Law is based on political boundaries. Although political boundaries are completely made up, the legal system has mostly worked because our human existence was based on people, places, and things. That's not so true anymore. And it shows.
Today, we send digital communications in little packets of information that scatter and go all over the world before reassembling somewhere new, which could be anywhere. Meanwhile, we have developed algorithms, data models, and machine learning based on all the information we collect from people doing things on the internet and in the world. But the bits of data rarely come with physical addresses, especially when it is anonymized and aggregated in order to hide any information about people, places, and things.
On top of that, technology is moving much faster than law. It always does.
As law tries to catch up, it's very difficult to legislate or regulate things that aren't really things and don't exist in a physical place.
For example, when California enacted the California Consumer Privacy Act and California Online Privacy Protection Act, it related to data and activity of people in California. But a lot of the time, you couldn't tell whether the information you were collecting or using related to somebody in California or not. So, everyone had to get on board with the California rules.
That's not how law has traditionally worked. There are new political and power dynamics at work. And both legislatures and courts are struggling to address issues like privacy, collection and use of data, and uses of new technologies.
Meanwhile politics and economic interests will continue to put pressures on how and where we work and what laws apply.
This is a great list from Fisher Phillips of employment law and compliance issues for 2024.
It’s never easy to make accurate predictions about what we’ll see in the workplace in the coming year, especially given the recent volatility we’ve experienced and expect for the foreseeable future. Despite the ever-present uncertainty, we asked our firm’s thought leaders to develop their best predictions to help you plan for 2024. You can read our entire FP Workplace Law 2024 Forecast here, or you can dive into this Insight for the top 10 predictions we pulled from our report.
- AI Regulation Will Arrive
Federal agencies will start issuing AI-targeted guidance as required by President Biden’s sweeping executive order – but you shouldn’t expect to see anything from Congress in 2024 that would move the needle. Instead, we’ll see state legislatures step into the fray and start regulating artificial intelligence in the coming months.
- SCOTUS Will Take a Hatchet to Federal Agencies’ Regulatory Power
The Supreme Court will overturn a longstanding rule known as “Chevron deference” that gives federal agencies broad power to administer and enforce laws passed by Congress. This will have profound implications for administrative agencies such as the DOL, NLRB, and OSHA – expect the ripple effects to carry on through 2024 and beyond.
- Labor Board Will Expand Remedies
We predict the NLRB will unshackle the constraints that had prohibited it from issuing any additional remedies besides “make-whole relief” for unfair labor practices concerning failure to bargain. That means you can expect to soon see the Board issue rulings awarding compensatory damages to unions and union members. You can also expect the Board to uphold the General Counsel’s recent memo restricting mandatory captive audience meetings.
- Expect to See More Consumer Privacy Laws – But Not from the Feds
To date, 13 states have passed consumer privacy laws, and more will follow suit in 2024. We expect that additional states will follow the post-CCPA trend of excluding employment-related data from protection under these new laws, unlike California – where such data is subject to the CCPA/CPRA requirements. But despite bipartisan efforts in recent years to pass a federal consumer privacy law, the prospects are dim for passage of any law from Congress in 2024.
- Lower Wage Earners Will Receive Greater Non-Compete Protections
As the proposed federal ban on non-competes remains in administrative limbo through the first half of 2024 or so, we’ll see more states impose minimum-income requirements for employees who can be required to sign restrictive covenants. We may even see the FTC follow that path when it comes to finalizing its non-compete rule.
- Expect EEO-1 Reporting Changes
Annual EEO-1 reporting is required for nearly all employers with 100 or more employees and for many federal contractors or subcontractors with at least 50 employees. In 2024, we’ll see the EEOC revise the gender reporting categories to give employees an opportunity to voluntarily self-identify as non-binary or a similar category other than male or female. We may even see the agency revise race/ethnicity reporting to include a category specifically for employees with origins in Middle Eastern countries who have historically been reported as “White.”
- Safety Officials Will Make Criminal Referrals
OSHA will be aggressive in referring workplace safety matters to the federal Department of Justice or local state criminal prosecutors in 2024. This will most often arise when a supervisor provides damning testimony about workplace safety concerns to OSHA and the agency provides a copy of the statement or recording of the interview to a prosecutor. Knowing how to defend against such prosecutions will be a crucial skill for employers in the new year.
- Wage and Hour Regulators Will Focus on Child Labor Laws
Federal and state enforcement of child labor laws will be a main focus of federal officials in 2024. The USDOL recently reported a 70% increase in the number of children illegally employed by companies in recent years. Businesses that relied on minors in response to worker shortages that were unaware of or failed to adhere to the strict restrictions on child labor will continue to face hefty penalties.
- E-Verify NextGen Will Streamline the I-9 Process
USCIS will release a new product, E-Verify NextGen, which will modernize the I-9 and employment verification process for employers and employees alike in 2024. Among other features, employees will be able to enter their own information through a portal – with the goal of reducing data entry errors – and notifications will be streamlined.
- Federal Contractors Will See New Race/Ethnicity Categories
The contractor community has long raised concerns on the limits and nature of the race and ethnicity categories currently used for EEO-1 filings and Affirmative Action Plan (AAP) documents. Both the EEOC and OFCCP have indicated they are currently reviewing the issue, and we expect to soon see new categories or new clarifications in current categories.
Conclusion
If you want more predictions, you can read our entire FP Workplace Law 2024 Forecast here.
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