A lawyer for Ralph Lauren Corp. shared his take Wednesday on some of the biggest trends coming down the pike for employment lawyers in the retail and hospitality space. With President Donald Trump in the White House and Republicans in charge in Congress, the in-house attorney said companies need to be cognizant of state and local laws since it is unlikely many labor issues will be subject to uniform federal laws.

During Corporate Counsel's 29th Annual General Counsel Conference in New York, Jonathan Shiffman, associate general counsel of litigation and employment law with Ralph Lauren, pointed to three major trends employers need to watch.

As an in-house lawyer for the New York-based national apparel retailer, Shiffman drew upon his experience to make predictions about the biggest issues that will arise for lawyers in the labor and employment space, “especially [for] employers with a national presence.”

“Essentially what's happened is workers' rights advocates have been completely stymied at the federal level and are trying to get new legislation passed that protects employees,” Shiffman explained. “The Congress has been Republican for a long time and shown no interest in any employment protections for employees … so what these advocates have done is gone to the states and cities to get the preferred legislative agenda passed. They've had a good deal of success.” 

Moving forward, Shiffman said, some of these laws are going to make it to enough cities and states that employers will have to decide whether to adopt policies across the board that are compliant with the toughest laws, or have more difficulty managing a patchwork approach based on the frameworks in individual states and cities.

These are the major trends to look out for, according to Shiffman.

1. Predictive scheduling laws have been “a hot issue,” Shiffman said. Historically, companies, commonly retail and fast-food chains, have scheduled workers to be “on-call.” Workers' rights advocates have argued this is unfair to employees who cannot adequately prepare for their shifts or arrange for child care if necessary. Nothing has been passed on a federal level, Shiffman noted, but several states and cities have taken action to pass laws requiring employers to post schedules in advance. Timeframes vary between cities and states, but some require managers to make schedules available two weeks in advance, and others could require three days in advance.

Shiffman said San Francisco was “way ahead of the curve” and has had such laws in place since 2014. Since then, laws have been passed in Oregon, Seattle, New York and Emeryville, California.

Among the states and cities that have introduced legislation on predictive scheduling but are awaiting outcomes are: Arizona, California, Chicago, Connecticut, Maryland, Massachusetts, Minnesota, North Carolina, Ohio and Washington, D.C.

2. Ban the box/fair chance laws have been introduced in various jurisdictions as well. The laws are designed to prohibit companies from inquiring about a potential employee's criminal history. In New York, for instance, employers should not ask “until you make a conditional offer of employment,” Shiffman said.

At that point, employers can consider action. Employers may rescind an offer if there is a “direct relationship” between the criminal history and the job duties. For instance, a job candidate who has a theft conviction on their record might be more of a risk than someone convicted for drug abuse if the position involves working directly with money.

3. Salary history laws are another area where employers need to be careful. Shiffman explained that the main reason that employers in certain jurisdictions are no longer able to inquire about a job candidate's salary history is largely due to the fact that women have been historically paid less than men, even when working similar jobs. Therefore, he said, a clean slate on salary history gives women more of an opportunity to be paid on an equal playing field.

Shiffman noted that companies can do market research to see what competitors pay employees, but they should not research a specific company's pay data in order to determine a certain candidate's past pay.

Although candidates can voluntarily share their past salary, Shiffman advised that employers ask candidates more general questions like: “What are your expectations with respect to compensation?”

According to Shiffman's research, salary history laws are set to go into effect in the following jurisdictions at the listed times:

Oregon: Oct. 9; New York: Oct. 31; Delaware: December; Massachusetts and San Francisco: July 2018. Philadelphia's implementation date has been held up by a court challenge, so that statute's status is unclear.