1. Pushback on DEI Initiatives – Diversity, equity, and inclusion (DEI) programs and policies will remain at the forefront. Heightened awareness of DEI invites heightened scrutiny of such initiatives, particularly during an election year. Employers may also see more so-called reverse discrimination claims.
  2. Social Media Comments – As employers have already begun to see, employment decisions based on comments applicants or employees make in the modern public square, i.e. social media, may lead to potential litigation.
  3. Increased Activity Around Trade Secrets – Expect more employers to turn to litigation as a vehicle to stem competition as corporations attempt to combat “raiding” of their human capital and trade secrets.
  4. Cities & States Wield Power – The continued development of regulatory laws passed by state legislatures and municipal bodies affecting employment rules will increasingly make it more difficult for national companies to establish uniform policies. Examples include city and/or state specific pay transparency rules, unique state and/or city background check rules; and an increase in local bans on noncompetition agreements.
  5. Artificial Intelligence – Expect a lot of movement in the AI space. As part of the Biden Administration’s Executive Order on artificial intelligence, the Labor Department will publish best practices for employers to mitigate AI’s potential harms to employee well-being. The EEOC is also moving forward with its own initiative ensuring that the use of AI in employment decisions complies with federal civil rights laws.