2016 has arrived, marking the beginning of a year of political transition. While we cannot be certain what the upcoming Presidential election holds for 2017, we can expect to see at least seven employment law trends as we move through this year.

1. Increase in Fair Labor Standards Act (FLSA) initiatives and enforcement

The Department of Labor (DOL) has proposed changes to the thresholds for exempt status, which will increase the number of employees eligible for minimum wage and overtime payments. In addition, technology advances in the workplace are likely to collide with wage and hour laws with the increased use of smartphones and tablet devices by non-exempt employees and the rise of the sharing economy through businesses such as Uber, AirBnB, etc. Finally, the election year likely will bring with it even more emphasis on laws forcing employers to increase the minimum wage and provide for equal pay and paid family/sick leave on a federal, state and local level.

2. Expansion of the National Labor Relations Board’s (NLRB) efforts to increase unionization

2016 will give us the first full year operating under the NLRB’s new speedy election rules, which so far have served unionization well. In addition, in its last year under the Obama administration, we should expect to see other pro-union decisions and initiatives from the NLRB, including the Board’s efforts at increasing the likelihood of joint employer findings and its onslaught against non-union employment policies.

3. Expansion of Equal Employment Opportunity laws to include LGBT protections

The Equal Employment Opportunity Commission (EEOC) has been pushing an agenda to bring LGBT non-discrimination rights up to the level of other protected classes and this should continue in 2016. Expect state and local laws to begin doing the same.

4. Increased focus on employee privacy protection.

Data breaches occurring in recent years have put the spotlight not only on businesses’ protection of their customer data, but also their own employees. In addition to class action litigation being brought, with increasing success, by victims of data breaches, the Federal Trade Commission has begun enforcing its authority over unfair and deceptive trade practices to regulate in the data privacy/security space.

5.  Employer reliance on wellness programs

As health care costs continue to rise, employers have turned to wellness programs to keep a lid on those costs. Here is another place where technology is creating opportunities and issues as employer wellness programs rely more on smartphone apps and wearable devices to spur on improvements in their workforce health. The EEOC also is weighing in as it relates to the incentives that can be offered to employees for participating to ensure that participation is truly voluntary.

6.  Ban the Box.

Expect the Ban the Box movement, which seeks to prevent employers from asking job candidates about prior criminal convictions on their employment application, to gain additional traction throughout the year.

7. Immigration

Expect the 2016 elections to shine a light on federal immigration policy. Though the election year almost certainly won’t be conducive to any immigration legislation, it could provide whoever wins election with enough political capital to push his or her policy through Congress beginning in 2017.

Ohio law has long held that an employee’s particular health conditions, personal frailties and peculiar susceptibilities do not prohibit the employee from having a compensable work injury when the injury occurred in the course of and arising out of the employee’s employment. Ohio courts do not deny an employee a compensable claim merely because the employee’s physical fitness at the time of the work incident rendered him more susceptible to the injury than an otherwise healthy individual.

Recently, an Ohio employer questioned the compensability of a workers’ compensation claim when an employee with pre-existing arthritis suffered a subsequent work-related injury. In Luettke v. Autoneum N. Am., Inc.,, the Sixth Appellate District found the injured worker sustained a compensable injury. In October 2006, Ruth Luettke (“Luettke”) fractured her left leg in a work-related fall. An MRI of her left knee demonstrated osteoarthritis. Thereafter, Luettke complained of occasional pain, but continued to work full duty. In August 2012, Luettke alleged that while holding a pry bar to open a dock plate, she put her weight on her left foot, turned and felt a snap in her left knee.  She sought to have a workers’ compensation claim recognized for the conditions of sprain of the left knee and tear of her quad tendon.   Both Luettke’s physician and the employer’s examining physician opined that Luettke suffered from pre-existing arthritis and that Luettke’s injury would not have occurred in an otherwise healthy individual. The Industrial Commission recognized the claim and the employer appealed to court.

The employer opposed the claim, contending that Luettke’s injuries occurred primarily as a result of the pre-existing natural deterioration of the weakened condition of her leg and knee. In Ohio, the definition of an “injury” does not include an injury caused primarily by the natural deterioration of a part of the body.

In addition, the employer argued that Luettke failed to eliminate her pre-existing left knee weakness as a cause of her alleged left knee injuries. The Ohio Supreme Court has previously held that in cases involving unexplained falls, the injured worker has the burden of proof of eliminating idiopathic causes. Idiopathic injuries are an employee’s pre-existing physical weakness or disease which contributes to the work incident. Although the Supreme Court’s ruling relates specifically to unexplained falls, many appellate courts have expanded this doctrine and applied the burden of eliminating idiopathic causes to claims involving pre-existing conditions in mechanisms of injuries other than unexplained falls. The Sixth Appellate District Court concluded that every health-impaired injured worker who seeks compensation for a subsequent injury to the same body part need not eliminate the pre-existing condition as a cause of the injury. In this case, the court held that the fact that the force of twisting would not have resulted in a torn tendon to a healthy individual or to Luettke in the absence of her pre-existing arthritis did not make her injury unexplained.

The Sixth Appellate District Court held that workers’ compensation law does not require all employees to meet a certain level of physical fitness. Further, the court held that even a health-impaired employee is entitled to compensation for an injury subsequent to a pre-existing condition occurring in the course and scope of employment, even if the same action would not have injured an otherwise healthy employee. Overall, the court found that Luettke sustained a compensable injury and that her injuries were caused by her specific work-related exertion.

Employers should remember that Ohio law remains that employers take their employees as they find them, whether healthy or with pre-existing conditions. The best way to avoid workers’ compensation claims is to provide a safe work environment for all employees.