In the United States, labor law encompasses everything from family medical leave to marijuana regulation. See, e.g., Erin Mulvaney, “Labor of Law: We Asked for Labor-Law Predictions for 2018. Here’s What You Said.”, Law.com, Jan. 16, 2018. When asked what trends they expected to see in the labor and employment fields for 2018, a number of leading legal analysts provided their views. This article examines some of the trends to watch for and the role that expert witnesses will play in the different types of labor litigation.
The following list comprises a number of the trends mentioned by leaders in the field:
(1). Adapting to the #MeToo Movement in the Workplace:
As one legal commentator explains, “The corporate response to the wave of sexual harassment allegations is certainly keeping companies and outside counsel busy right now—and there’s no immediate sign the scrutiny will abate. Most of the lawyers I spoke with for this piece and in recent articles said this is the biggest conversation in the corporate world. Companies are looking at internal policies and boosting training.” Id. In fact, several heads of labor and employment issues at different law firms have mentioned that they expect to see an increase in such complaints, and that they are focusing on preparing to take both preventive measures to improve their employment environments, as well as focusing on defending against potential litigation. See, e.g., id. Any time that a company reviews its internal policies on how to improve their corporate climate and preclude harassment from happening, expert witnesses can play a key part. Their role as consultants on how to best move forward and prevent potential complaints and litigation can be indispensable. Moreover, testifying experts will also be called for, as companies may face litigation over past incidents, and both plaintiffs and defendants will find the knowledge of such witnesses of great utility.
(2). Enforcement Uncertainties:
With respect to OSHA, which governs workplace safety; the National Labor Relations Board (NLRB), which oversees collective bargaining; and many other regulatory aspects of labor law, uncertainty looms. See id. This is common when there is a change in administrations, and analysts have noted that although each administration makes certain changes in regulation, the implementation of such changes tends to be slow. See id. In effect, this means that expert witnesses and litigation will play an important role here, as cases involving issues such as workplace safety or union-related issues, for example, will be left up to the courts until the executive agencies catch up on rule-making and implementation. In this respect, many different types of experts will be invaluable, from those who assess the impacts of safety hazards, to those who can speak to whether a party played fair in a given collective-bargaining scenario. Labor and employment experts, in general, will also have a part to play, as will experts in interpreting the regulatory and administrative changes once they occur and helping courts determine how to best implement them.
(3). State Action on Labor Laws:
It is important to acknowledge that while issues like OSHA and the NLRB concern federal labor issues, states are tackling these matters on their own, and paying attention to their actions will be important for litigators in the field. See, e.g., id. As one legal analyst admonishes, “Keep your eyes on the states. State and local governments often take the lead on labor and employment issues—and that’s expected even more so to play out in the Trump era. Paid leave laws, gender equity, marijuana rules and sexual harassment measures can create a compliance patchwork in the country.” Id. Indeed, so many states are likely to have different reactions to federal guidelines, or a lack thereof, that they are likely to be proactive on labor issues on their own. Because states often have very diametrically opposed views on particular issues, it will be important for labor practitioners to pay close attention to what is going on in their particular jurisdiction. If new state laws are passed, the state courts will be left to interpret such policies, and litigation is a certainty. In such a scenario, expert witnesses will prove extremely helpful, as those familiar with the particular laws of a given state and the labor issue at hand can provide useful guidance to attorneys and factfinders.
(4). Class Actions in Employment Cases:
Depending upon what happens with the US Supreme Court, the employment sector may see some major changes regarding class actions. See id. As one commentator notes, “The Supreme Court in 2018 is expected to issue major labor rulings: The justices will decide a major case that could dramatically alter employment class actions. Dozens of employers are anticipating the Epic Systems, Murphy Oil and Ernst & Young decision will determine whether class action waivers used in arbitration agreements violate laws that protect concerted speech.” Id. Depending upon what transpires in the highest court, how class actions are conducted in the labor context may change dramatically, and regardless of the ruling, experts have a role to play. Until the Supreme Court issues a decision, labor experts on class action, arbitration, and freedom of speech, will likely act as gap-fillers, helping the lower courts to decide these issues. Once the Supreme Court rules on the matter, such experts will still be needed, as new standards will mean that attorneys, employees, and employers will have to adapt to such policies, and they will require consulting experts to make a smooth transition. Moreover, once the Court’s ruling is official, litigation will ensure, regardless of the direction the Court takes, making testifying expert witnesses an important resource to help interpret a new opinion and carry out the Court’s edict.
(5). Employment Discrimination Issues:
Two major matters loom in 2018. One is that employment discrimination lawyers will have to adapt to an expected change, which will entail a shift from the Obama-era policy of favoring class actions in EEOC cases, to more individual charges being brought on employment discrimination grounds. See id. Expert witnesses can help attorneys on both sides adapt to this expected change in focus and assist both lawyers and courts in assessing the merits of individual cases, which tend to entail direct charges, rather than “pattern or practice” discrimination-based claims. This shift will also tend to favor disparate treatment cases over disparate impact ones, a trend that experts in the field will be ready to assist litigators with. Finally, the question of whether sexual orientation discrimination claims are federally protected may remain in 2018. See id. This is because in the Supreme Court, “this term declined to hear a case, meanwhile, that questions whether sexual orientation should be protected under Title VII of the Civil Rights Act. The circuit courts are split—and the issue could come back to the justices soon.” Id. With circuit splits, experts will play an important role in guiding litigators in different federal districts. If the Supreme Court does take the issue up this year, experts will again be needed to help with interpreting its decision. The types of experts that attorneys may wish to turn to on such cases include civil rights specialists, constitutional law scholars, and those with expertise in interpreting how far gender/sex discriminations should stretch. All of these experts will also be quite useful in helping attorneys resolve these issues in particular circuits, absent from a Supreme Court ruling on this matter.
Certainly, a number of changes may occur in the labor and employment sector of litigation this year, and experts will play a crucial role in interpreting and explaining those changes to lawyers and courts. Moreover, with the possibility of different federal administrative approaches and new state laws, expert witnesses will be needed more than ever to help guide those in the legal profession and assist them in understanding the implications of the changes that may be made in the upcoming months.