Previously, we took a look at how the Office of Federal Contact Compliance Programs and the Department of Labor will operate under the second term of President Barack Obama. In this post, we look at what the Equal Employment Opportunity Commission (EEOC) and the National Labor Relations Board (NLRB) have coming up on the horizon.
Equal Employment Opportunity Commission
The five-member EEOC currently has four members—two Democrats and two Republicans. The Democrats include Chair Jacqueline A. Berrien (whose term ends July 1, 2014) and commissioner Chai Feldblum (whose term ends July 1, 2013). Anticipate that Feldblum will be appointed to a second term in 2013. The two Republican commissioners include Constance S. Barker (whose term ends July 1, 2016) and Victoria A. Lipnic (whose term ends July 1, 2015). The nominee for the fifth seat, a Democratic vacancy with a term ending July 1, 2017, is Jenny R. Yang, a partner in the law firm that represented the class of employees in Dukes v. Wal-Mart, which recently was decided by the U.S. Supreme Court.
In the upcoming year, the EEOC’s focus will be on implementing its Strategic Enforcement Plan for fiscal year (FY) 2012 through FY 2016, which the agency describes as “shift[ing] the enforcement paradigm from complaint-driven to priority-driven.” The EEOC’s priorities include:
- Eliminating systemic barriers in recruitment and hiring (disparate impact and disparate treatment cases);
- Protecting immigrants, migrant workers, and other vulnerable workers by targeting practices such as disparate pay, job segregation, harassment, and trafficking as well as policies that may include discriminatory language;
- Focusing on other targets, including retaliation, policies and practices designed to discourage or prohibit the exercise of rights under antidiscrimination laws, including coverage under Title VII of the Civil Rights Act of 1964 for lesbian, gay, bisexual, and transgender individuals, overbroad waivers, settlement provisions that prohibit filing charges with the EEOC or providing information in agency and legal proceedings, and the permissible use of criminal and credit background checks.
The EEOC’s regional offices will continue to pursue a wide range of systemic enforcement investigations and litigation actions under the Strategic Enforcement Plan, addressing hiring, testing, and compensation issues, among other things.
National Labor Relations Board
The NLRB is about to face a loss of three members it needs to function. There are five Board members, including the chairman. Currently, there is one vacancy, and three other members’ terms end before Obama’s inauguration in January 2013. The term of Chairman Mark Gaston Pearce (Democrat) ends August 27, 2013. The term of member Brian Hayes (Republican) ends December 16, 2012. Finally, the two remaining members, Sharon Block and Richard F. Griffin Jr., are recess appointees, and their terms end when the 112th Congress adjourns. Moreover, the NLRB’s acting general counsel, Lafe Solomon, is a recess appointee whose term ends with this Congress.
Despite the fact that the majority of the NLRB’s members are recess appointees and that it has faced challenges to decisions based on whether it had the minimum of three members properly appointed, the Board has issued, and is expected to continue issuing, a number of decisions that have been criticized as being disproportionately favorable to organized labor’s interests and agenda. That trend is expected to continue as soon as the appointments are sorted out.
Additionally, recent decisions have expanded the protections for employees’ right to take concerted action—in both union and nonunion workplaces; restricted employer policies on social media usage; recognized “micro” bargaining units, making it easier for unions to organize; favored graduate student union organizing; expanded off-duty access to workers by unions; imposed a duty to provide to unions witnesses’ statements gathered from internal investigations; rejected employer policies requiring confidentiality of workplace investigations; and restricted employers’ use of arbitration clauses for resolving class and collective actions. The NLRB’s expanded use of rulemaking may continue, although recent regulations promulgated by the Board have been put on hold by the courts, including the streamlined procedures to expedite union elections and the required posting of notices informing employees of their rights to organize and pursue unfair labor practices.
Although congressional gridlock is expected to prevent many of organized labor’s key legislative changes from being enacted—such as the Employee Free Choice Act (EFCA) or similar labor law changes that would allow unions to be selected with card checks rather than secret-ballot elections—expect the NLRB to continue to advance most changes either through additional rulemaking or by issuing new rulings or interpretations and advice from the general counsel.
What employers should do now
Anticipate that many of the changes mentioned in this article (and an acceleration of changes and policies commenced during the last four years) will begin to materialize promptly in Obama’s second term. Irrespective of delays that may occur pending the confirmation of NLRB appointees, there will be few delays as the DOL’s agencies and the EEOC implement new policies in 2013 and 2014, before the midterm elections are held in November 2014. Many policy leaders in the federal workplace agencies view this as a limited window of opportunity to make changes, and they already are moving forward to do so. Will you and your organization be prepared?
David S. Fortney is a partner with Fortney & Scott, LLC in Washington, D.C. Before co-founding the firm, Fortney served as the chief legal officer of the U.S. Department of Labor in Washington, D.C., during the first Bush Administration. As Acting Solicitor of Labor, he was responsible for enforcing over 140 laws regulating the nation’s workplaces and managing an agency with 800 attorneys and support staff. He may be contacted at dfortney@fortneyscott.com.