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Obama Administration’s Changes at DOL, EEOC, and NLRB

The changes promised by the Obama administration are beginning to take hold at the federal agencies regulating the workplace. Typically, the change in leadership can be a strong predictor of the changes in policies and directions that will be pursued by a new administration.

Not surprisingly, the changes that already have occurred suggest that we can expect much more emphasis on enforcement to drive compliance with the laws and regulations governing the workplace. Consistent with the views of President Barack Obama, the new leadership can be expected to support changes to a number of the workplace laws, including the Employee Free Choice Act (EFCA) and other controversial pending proposals.

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Secretary of labor nominee Hilda Solis confirmed
President Obama nominated California Representative Hilda L. Solis (D) to serve as his secretary of labor. Although Solis faced tough questions by the Republican minority at her confirmation hearing, she was confirmed by the U.S. Senate.

Solis has been an outspoken supporter of the pending Employee Free Choice Act legislation, which would allow unions to organize workplaces without going through elections. At her January 9 confirmation hearing, however, Solis declined to comment on the EFCA, other than to acknowledge that she was a co-sponsor of the bill when she was a House member from California. Solis, who voted for the AFL-CIO’s position on 97 percent of key votes while a member of Congress, also declined to discuss her positions on the Taft- Hartley Act, H-1B visas, prevailing wage rates, and comp time. Instead, she stated that she would have to study the issues further if she were confirmed as secretary of labor.

Before her confirmation, there were published reports that one Republican senator had placed a hold on the Solis nomination because of her failure to be more responsive to the questions regarding employees’ right to vote in secret-ballot elections. A “hold” is a well-established prerogative that allows a single senator to anonymously delay a vote on a nomination or bill. Technically, the hold can be overridden by a vote of 60 senators, like any filibuster. However, such votes are rare.

Although there was some delay in the confirmation proceedings for Solis, there already have been changes by the federal agencies affecting the workplace, including the agencies within the U.S. Department of Labor (DOL) and two key non- DOL agencies — the Equal Employment Opportunity Commission (EEOC) and the National Labor Relations Board (NLRB).

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New EEOC leaders: Acting Chair Ishimaru and Acting Vice Chair Griffin
The EEOC announced on January 23 that President Obama has appointed Stuart J. Ishimaru as acting chair of the EEOC and Christine M. Griffin as acting vice chair. Ishimaru, whose term expires July 1, 2012, has been a commissioner since November 2003. He was confirmed by the U.S. Senate for a second term at the EEOC in December 2007. During his tenure, Ishimaru has primarily focused on large systemic cases and in reinvigorating the agency’s work on race discrimination issues.

Griffin was sworn in as an EEOC commissioner on January 3, 2006, to serve the remainder of a five-year term expiring July 1, 2009. Since joining the commission, she has been vocal in her support of increasing diversity in the federal workforce. She has also been a strong advocate for women’s rights and the rights of individuals with disabilities.

Ishimaru succeeds Naomi C. Earp, whose term as a commissioner expires on July 1, 2010. The vice chair position was vacant before Griffin was named to fill it. In addition to Ishimaru and Griffin, the other sitting commissioners are Earp and Constance S. Barker. The fifth commissioner seat remains vacant.

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New NLRB Chair Wilma Liebman
The NLRB announced on January 22 that President Obama designated Wilma B. Liebman as the chair of the NLRB. Liebman is serving her third term on the NLRB, where she has been a member since 1997. Her current term will expire on August 27, 2011. Liebman thanked the past chair, Peter Schaumber, for his outstanding service and indicated that she looked forward to leading the Board with a full complement of members.

There currently are three vacancies on the Board, giving Obama the opportunity to create a Democratic majority. The NLRB traditionally has two Democrats, two Republicans, and a fifth member from the President’s party. The Board is an independent federal agency created by Congress in 1935 to administer the National Labor Relations Act (NLRA), the primary law governing relations between unions and employers in the private sector.

Additional changes at DOL agencies
All the DOL agencies presently are led by acting agency heads, who typically are senior career employees who run the agencies until the newly named political appointees are in place. For example, the key DOL agencies, including the Occupational Safety and Health Administration (OSHA), the Wage and Hour Division (WHD), and the Office of Federal Contract Compliance Programs (OFCCP), currently are headed by senior career DOL employees.

Typically, during transitional times, there are minimal activities by the agencies while waiting for the new agency heads to be nominated and confirmed and to assume their leadership roles. The OFCCP, however, has had a significant amount of activity on its website during the first week of the Obama administration, including the removal of several significant postings.

One of the removed documents was an extensive paper titled “The Greater Mission Behind the Bigger Bottom Line: Reconstructing the Office of Federal Contract Compliance Programs, 2001-2009.” The paper provided a provocative look at the agency reforms, the political challenges, and the bureaucratic landscape and was authored by the outgoing head of the OFCCP, Charles James, summarizing his eight-year tenure as deputy assistant secretary for the agency. Another posting that was removed from the OFCCP website was a detailed report titled “An Analysis of the Reasons for the Disparities in Wages Between Men and Women,” which the DOL had commissioned.

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Bottom line
In contrast to the timing and sequence of prior administration changes, the changes being introduced by the Obama administration are occurring quickly, before the nomination and confirmation proceedings for the new agency leaders have been completed. There is every indication that these are just the beginning of what promises to be a very dynamic period that will include significant changes involving the agencies governing the workplace.