Some of the biggest labor and employment headlines last year highlighted LGBT rights in the workplace, forced-arbitration provisions, sexual harassment scandals and stalled federal nominees. These issues and more are in play in 2019.

Progressive states, including California and New York, last year showed no sign of slowing down to take up measures boosting workplace protections, adding to the patchwork of state and local laws surrounding gender equality, harassment and paid sick leave.

Many of these and other themes will continue into next year, and could build momentum. We rounded up some of the issues to watch.

LGBT workplace rights in dispute

The U.S. Supreme Court is poised to consider whether Title VII of the Civil Rights Act should be extended to protect against discrimination based on sexual orientation and gender identity. Three cases at the high court tee up the issues—and the cases have been scheduled, and rescheduled, several times for the justices' private conference. We could soon learn whether the justices take up these issues this term.

The Trump-era U.S. Justice Department has urged courts not to extend protections, clashing with the position of the U.S. Equal Employment Opportunity Commission, which has advocated for broad protections.

“The sole question here is whether, as a matter of law, Title VII reaches sexual orientation discrimination. It does not, as has been settled for decades. Any efforts to amend Title VII's scope should be directed to Congress rather than the courts,” the Justice Department said in a brief in the Second Circuit last year.

Many large employers have been moving toward equality, filing friend of the court briefs that back greater employee rights against bias. Two cases at the high court—Altitude Express v. Zarda, and Bostock v. Clayton County—consider protections for sexual orientation. The third case, R.G. and G.R. Harris Funeral Home v. EEOC confronts protections for transgender employees. The cases would be considered at a high court that, of course, no longer includes Justice Anthony Kennedy, whose rulings for same-sex equality have been championed by rights advocates.

What will happen at the EEOC?

As of January, the five-member EEOC was down to two commissioners, meaning it lacked a quorum and would be prohibited from pursuing certain matters. Daniel Gade, a Trump nominee to the EEOC, withdrew his nomination late last year to take a post teaching public policy at American University this year. Another Trump nominee, Janet Dhillon, was still awaiting confirmation in the previous Congress, and the Senate had not confirmed the administration's pick for EEOC general counsel, Sharon Gustafson, who would play a key role in big-ticket litigation. Indeed, the EEOC was bracing for at least a short period, or longer, without a full slate of commissioners.

“This means the potential of a shutdown of significant litigation,” said former EEOC general counsel David Lopez, now co-dean of Rutgers Law School. “The big cases, cases where there is a policy change.” The commission last year faced litigation over new workplace wellness rules and a dispute over an Obama-era pay-data initiative.

Joint employer—even messier than before

The rule-making process is moving forward at the National Labor Relations Board to determine what standards should be used to determine when companies, franchises and contractors should be considered joint employers. The NLRB has received thousands of comments about a proposal that would adopt a more business-friendly approach. The NLRB general counsel, Peter Robb, recently weighed in, saying the proposal doesn't go far enough.

The landscape just got a lot more muddy—at least in the eyes of a dissenting judge on the U.S. Court of Appeals for the D.C. Circuit. The appeals court, divided 2-1, on Dec. 28 largely upheld the Obama-era NLRB's joint-employer standard, even as the board weighs adopting a more business-friendly approach.

Writing in dissent, Judge A. Raymond Randolph said the panel should have let the NLRB administrative process play out. “Yet the majority opinion—without any reasonable explanation—threatens to short-circuit the board's choice, to control and confine the scope of its rulemaking, and to influence the outcome of that proceeding,” Randolph wrote. He added: “Our court should not be attempting to preempt the board's forthcoming judgment in the rulemaking proceeding.”

Tension mounts over mandatory arbitration

Plaintiffs lawyers have begun going to court to force gig economy companies such as Uber and Lyft to agree to pay the costs of arbitration. At stake? Millions of dollars in fees which the companies had agreed to pay, based on the terms of arbitration provisions. According to new lawsuits, the companies, have not paid certain filing fees, and thousands of arbitration cases have stalled.

“For employers, this might say, 'Be careful what you ask for and you might get it,'” said plaintiffs lawyer Joseph Sellers of Cohen Milstein Sellers & Toll. “This could force Uber to reckon with the consequences of the arbitration clause, which means very substantial costs.”

Meanwhile, we're watching the fallout from the Supreme Court's Epic Systems ruling from the past term. One Pennsylvania judge recently raised his broad concerns about the fairness of arbitration. “Even if individual arbitrators adhere to high standards, we ignore reality if we forget that private arbitration services are profit-making enterprises that advertise and compete for business,” U.S. District Judge Gerald McHugh Jr. wrote.

Automation in focus

Automation has become more ubiquitous in the workplace as employers adopt artificial intelligence tools for greater efficiency. Regulators, advocates and lawmakers are speaking out more on the potential dangers of streamlined, algorithm-driven processes. Democratic lawmakers and workers' rights advocates are pointing to ways that automation tools could lead to discriminatory practices.

A recent survey by the management-side firm Littler Mendelson found hiring and recruiting account for the most common uses of data analytics and artificial intelligence. Nearly half of the employers surveyed said they use some kind of advanced data techniques to grow their workforce. This is an emerging issue on many fronts and has caught the attention of the EEOC and Democratic lawmakers. This includes biometric privacy data, facial recognition software and resume-scraping tools aimed at reducing the workload at big companies. Litigation is expected to pick up.

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These are the issues labor and employment attorneys are watching

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