Cybersecurity, increasing technological resources, a multigenerational workforce and outsourcing legal processes were a few of the legal trends observed and experienced in the law industry this past year. With the contraposition of a new administration and its subsequent nationwide shakeups, the legal outlook for 2018 is presumably and naturally eclectic.
While healthcare and labor laws remain in a state of flux, the legal community continues to anticipate what comes next. As we simmer in somewhat of a national legal stasis in some areas, there are trends local legal experts see more clearly. Let’s turn our attention to the legal signs and signals ahead for 2018.
Proceed with caution: Employment problems ahead
According to Nonnie L. Shivers, shareholder at Ogletree Deakins, employers and employment lawyers universally agree the biggest employment issue of 2018 surrounds the anticipated ruling by the Supreme Court regarding class action waivers.
“Since the National Labor Relation Board’s (NLRB) January 2012 ruling in which the NLRB held that employers cannot use class action waivers in arbitration agreements with employees covered by the National Labor Relations Act, most federal courts have disagreed with the NLRB’s decision and a split in the circuit courts of appeal has emerged,” Shivers says.
The Supreme Court’s decision. which is expected early this year, has many in employment law expectant, as much debate centers on the enforcement of arbitration agreements with class action waivers while the NLRB routinely files unfair labor practice charges against employers that maintain these agreements, according to Shivers.
In tandem with the much-anticipated NLRB ruling, are new legal obligations in which employers must be complicit, which Shivers says can pose as an “incredibly onerous and time-consuming challenge.”
“It has literally changed the way employment lawyers, whether in an in-house setting or outside in private practice advising companies, go about the core nature of their jobs,” Shivers explains. “In order to have multi-state handbooks and policies that are compliant with the law – a critical component – more legal advice will be sought to synthesize laws as robust localization of the law continues.”
The result of such a complex web of national, state and local regulations relating to employees, creates a lot of confusion, according to Radix Law Attorney Jonathan Frutkin.
“Since more and more of these regulations depend on the number of employees in a business (and that number is always changing),” Frutkin says, “we will continue to field questions requiring this advice.”
Josh Becker, a Gallagher & Kennedy shareholder, agrees that issues surrounding employment ordinance shifts and anything associated with the NLRB will persist in being hot topics in 2018.
“One significant change for my clients is the NLRB’s decision to rescind the previous administration’s standards for determining when companies are joint employers,” Becker says. “It’s a change that will dramatically impact franchising because it reduces the risk that a franchisor may be deemed a joint employer of its franchisee’s employees.”
Becker goes on to clarify that regulatory uncertainty is bad for business because companies are reluctant to grow if they believe the rules will change.
Adding to the dubious legal business climate: The issue of whether Title VII’s prohibition of sex discrimination includes a bar on sexual orientation discrimination – LGBTQIA (lesbian, gay, bisexual, transgender, queer, questioning, intersex and ally) employees and their rights.
“Employers are left, more now than ever, with a complicated patchwork of state, county and local laws with varying protections based on different definitions of gender, gender identity and gender expression,” Shivers says.
Yield for smoke and mirrors
Whether you smoke it, toke it, or none of the above, there are those that do. Not surprisingly, legal council for the cannabis industry will be in high demand (pun intended).
“I think the national movement to legalize medical marijuana (and in some cases recreational use of marijuana) and the impact that will have on other industries and businesses is likely to create significant legal work in 2018,” Becker says.
Business leaders, according to Becker and Shivers, will require due diligence in corporate compliance with marijuana laws.
“Given the recent legalization of medical (and recreational) marijuana in several states across the country and the ongoing relaxing of state laws on the subject,” Becker says, “I believe business leaders will be looking for guidance on how to comply with and enter this growing new industry.”
And, adds Shivers, “Courts are issuing decisions that are the first of their kind regarding the protections applicable to medical and recreational marijuana users, including in the workplace.”
Taking precautions toward liability risk with new marijuana laws, including safety programs and safety-sensitive positions, while also protecting individuals with disabilities will become increasingly vital, and presents a “potential minefield” of legal issues for employers as the laws continue to evolve, Shivers says.
Generations, environment and the economy
Those who specialize in elder law, like Tiffany & Bosco Shareholder Alisa Gray, will continue to be called upon in the coming year – and years.
“Arizona, in particular, has a significant retirement community population,” Gray says. “As Baby Boomers retire, there will be an increased need for estate planning and legal guidance on trust and power of attorney, in addition to handling matters after there has been a death.”
And, while Baby Boomers transition out of the workforce, a new generation of Gen X and Millennial entrepreneurs will seek to solidify their future.
“Finding creative and affordable financing for new projects or business expansion presents a significant challenge,” explains Ed Novak, shareholder and chair of Polsinelli’s White Collar and Government Investigations Practice.
When looking at those new projects, expect to see that growth in urban areas, rather than in the suburbs.
“I hope the important trend that will continue is an inward focus on development rather than a return to growth primarily on the fringe,” says William Allison, an attorney with Withey Morris. “Whatever the community, an active, vibrant core is critical to sustainability — economic, environmental and cultural.”
What other connections between financial gain and the economy will impact the local legal industry in 2018?
“The economy itself always drives the legal profession,” Frutkin says. “As we see continued growth in the economy, we will see more capital raising and mergers and acquisition activity. Arizona is bustling with activity in the real estate market. On the other hand, a weakened economy results in more bankruptcies and litigation. So the economy itself is something we’ll keep our eye on.”
There’s also the effect of a still-recovering local labor force to consider, too, in relation to Arizona’s state of economic prosperity.
“If the need for migrant laborers and unskilled laborers is not met with some form of immigration reform,” Novak says, “the impact will ripple throughout the Valley’s economy.”
When we boil down the diverse legal trends ahead for 2018, there is an unpredictable one which local legal experts agree will dominate headlines and will literally trump the rest.
“With our current president, any legal topic associated will remain at the forefront of headlines, especially as the administration pursues more protectionist trade policies,” says Becker. “And let’s face it, President Trump knows how to generate headlines.”