order to help identify and combat pay discrimination.
In light of the continuing and significant emphasis on pay
equity issues, employers should be advised to review their compensation data, policies, and practices and ensure that all pay
decisions are well supported and documented.
#5: PERILS AT THE INTERSECTION OF TECHNOLOGY AND THE
The intersection of technology and the workplace is a minefield
for employers and their employees. A number of high-profile
data breaches in 2016 put the spotlight not only on businesses’
protection of customer data but also sensitive data belonging to
their own employees. At the other end of the spectrum, the Defend Trade Secrets Act of 2016 gave employers an additional
weapon against the theft of trade secrets by current and former
employees by adding a federal cause of action accompanied by
ex parte relief in extraordinary circumstances, a royalty on future
use where injunction is impractical, and attorneys’ fees in cases
of willful or malicious theft. The fight between Apple and the FBI
over information on a locked iPhone raised questions about how
employers must manage the integrity of corporate data against
employees’ privacy rights and public safety. Bring-your-own-de-vice policies encourage employee productivity and ease communication between employers and their employees but at the risk
of overtime and off-the-clock work claims. Finally, increasingly
popular employer wellness programs that rely on smartphone
apps and wearable devices raise questions of privacy and potential
OTHER IMPORTANT ISSUES AFFECTING EMPLOYERS AND EMPLOYEES
There are numerous other important issues that are likely
to affect employers and employees in 2017. Some of those
• Increased restrictions on the pre-employment process,
including laws barring employers from inquiring into ap-
plicants’ credit and/or criminal history, and the sharp in-
crease in class actions challenging employers’ use of back-
• “Ban the box” laws, which seek to prohibit employers from
asking applicants about their criminal records during the
• The validity of class waivers in arbitration agreements, given the current circuit split on the issue.
• Legislation banning or limiting enforcement of noncom-pete agreements in Washington, which have been delayed
until at least 2017.
• Paid sick leave laws with differing requirements that have
swept the nation.
• The expansion of LGBT rights in the workplace.
• Increased efforts to preserve family and caregiving obligations through paid family leave legislation and expansion
of the EEOC’s enforcement efforts.
• The increase in OSHA fines for the first time since 1990,
along with the expansion of employers’ illness and injury
reporting requirements, expansion of available remedies,
and investigation of issues unrelated to the complaint that
brought OSHA to the workplace in the first place. NWL
LINDA FANG is a co-founder of Banyan Legal
Counsel LLP, helping businesses, entrepreneurs,
and workers comply with employment laws,
successfully manage their business relation-
ships, and avoid litigation. When disputes arise,
Banyan represents clients in state and federal
court, administrative and regulatory proceed-
ings, mediation, and arbitration in Washington and California.
Fang is chair of the WSBA Editorial Advisory Committee and
a member of the executive board of the Women’s Business
Exchange, and she serves as a pro bono attorney and volunteer
business coach with Wayfind and Ventures nonprofits. She can
be reached at email@example.com.
1 The complaint is available at www.wagehourinsights.com/wp-content/
2 U.S. Department of Labor Blog, Innovation and the Contingent Workforce, available at https://blog.dol.gov/2016/01/25/innovation-and-the-
3 According to the Washington State Underground Economy Benchmark Report in Fiscal Year 2015 (July 2014–June 2015), available at
UndergroundEconomyBenchmarkReport.pdf, the three agencies exchanged 96,000 tips and leads, found more than 6,000 unreported
or misclassified workers through audits, performed more than 860
audits on unregistered accounts which led to assessments of more
than $8.2 million, and assessed taxes totaling more than $87 million
from more than 740 businesses. Another 2015 study by the National
Employment Law Project, available at www.nelp.org/content/uploads/
Independent-Contractor-Costs.pdf, reports that Washington found
misclassification violations in 62% of audited cases, leading to $26.4
million in assessments, and noted that the state programs brought in
more than $7 for every dollar invested in enforcement efforts.
4 See Independent Contractor Tax Fairness and Simplification Act of
2015 (H. R. 2483), http://apps.leg.wa.gov/documents/billdocs/2011-12/
Pdf/Bills/House%20Bills/1701-S.E2.pdf; Payroll Fraud Prevention Act
of 2014 (H.R. 4611), www.gpo.gov/fdsys/pkg/BILLS-113hr4611ih/pdf/
BILLS-113hr4611ih.pdf; Fair Playing Act of 2013 (S. 1706), https://www.
5 California Fair Pay Act, Cal. Lab. Code § 1197.5; New York Labor Law
6 Maryland Equal Pay for Equal Work, Labor and Employment, § 3-301.
7 Massachusetts Act to Establish Pay Equity, M.G.L. ch. 149, § 105A.