Monday morning musings for workplace watchers.
Two Areas to Watch in 2024|EEOC Guidance Faces More Opposition
Rebecca Rainey: The new year marks the last year of President Joe Biden’s first administration, and along with that kicks off a mad dash from the US Labor Department to wrap up several regulations before a potential change in leadership. Here are two areas worth watching:
Artificial intelligence: The technology has been top of mind for the DOL since Biden issued an executive order in October tasking the agency with issuing a request for information from the public to identify “AI and other STEM-related occupations, as well as additional occupations across the economy” that could potentially be added to its “Schedule A” list of occupations that automatically meet certain requirements for employment-based immigrant visas.
Occupations that fall under “Schedule A” are jobs that the DOL has determined have a shortage of available US workers. Employers looking to permanently hire a foreign worker in those fields don’t have to apply for a labor certification with the agency, which is typically required for other types of permanent employment-based visas. DOL had aimed to issue the RFI by November, according to the regulatory agenda published last week. But the agency may have a bit more time. The White House set a Dec. 14 deadline for the call for public input in its EO.
Despite the time crunch, the DOL seems to be getting to work. The agency has scheduled three public listening sessions on AI for this week, which will focus on the risks and impacts to workers and labor standards presented by the technology, as well as employer surveillance using AI.
Overtime update: The DOL this spring is expected to wrap up a highly anticipated rulemaking that would make at least 3 million salaried workers newly eligible for overtime pay, according to the latest regulatory agenda. Even though the rulemaking hasn’t been finalized and is expected to change from the proposed version, employers should start to consider potential payroll changes now, said Russell Bruch, a partner at Morgan Lewis.
“You can’t just flip the switch for employees and reclassify them,” Bruch said.
Complicating the situation is the likelihood that the final overtime rulemaking will be challenged in court, and could be delayed or struck down in its entirety. The same situation occurred in 2016 when a federal judge temporarily blocked the Obama administration from implementing its overtime rule just days before it was slated to go into effect. A federal district court later fully invalidated the rule in 2017.
As a result, management side attorneys expect businesses to be slow to enact changes based on the DOL’s latest overtime rulemaking.
“Folks who have gone through it before are a little weary about it. They were prepared last time and then they got the injunction last minute and stopped it and then there was a big question whether to implement it or not,” Bruch said. “I think here though, because it does take time—you have to notify a lot of employees and have to make the decision—they’re going to have their plans ready to implement and then get ready for the effective date.”
Jeremy J. Glenn, managing partner for Cozen O’Connor’s Chicago office, agreed that employers should take a wait and see approach before implementing broad changes based on the overtime rule.
“I think the lesson from last time is, don’t rush to make changes that are difficult to reverse. And that will, as a result, cause employers to wait a little bit longer,” Glenn said. “My advice is, keep an eye on the date. But unless there are reasons for you to make changes now for retention or recruiting talent, keep your powder dry so to speak, stay cautious, and watch and wait.”
READ MORE:
- EEOC Joins Labor Agencies on Rules To-Do List After Hiatus (1)
- Biden Signs Sweeping Order Regulating Artificial Intelligence
- Overtime Expansion ‘Daring’ Businesses to Sue Over Pay Threshold
- Employers, Take Notice as the DOL Crafts White House AI Mandates
Riddhi Setty: The Equal Employment Opportunity Commission is facing renewed criticism over protections for LGBTQ+ workers, this time from Sen. Bill Cassidy (R-La.).
Cassidy sent a letter Dec. 5 admonishing the agency for including protections against misgendering in the workplace in its workplace harassment guidance, and called on the commission to revise its recommendations.
The EEOC’s draft workplace harassment enforcement guidance, published Sept. 29, covers behaviors from assault to misgendering to preventing workers from using the bathroom that fits their gender identity.
Cassidy criticized the agency’s position, citing a 2021 technical assistance document on workplace harassment that dealt with transgender employees and said that intentionally using the wrong name or pronouns to refer to a worker could violate Title VII of the 1964 Civil Rights Act and contribute to a hostile work environment. That guidance was blocked by a federal judge last year and is still being litigated.
“While previous federal courts have allowed ‘misgendering’ to be considered in a workplace harassment claim, no court has found that ‘misgendering’ can be the sole or primary legal basis for a claim,” the letter said.
Cassidy’s criticism further fuels an expected clash over the commission’s recent guidance, which would be the first update to its workplace antiharassment guidelines since 1999. Attorneys anticipate the LGBTQ+ protections in the guidance will prompt litigation, and there has been strong public interest in the issue, with the draft guidance receiving over 37,000 comments.
The draft workplace harassment enforcement guidance isn’t the only EEOC guidance in the past few months that has raised objections. The commission’s proposed regulations for the Pregnant Workers Fairness Act, released in August, also prompted opposition for their mention of abortion as a pregnancy-related medical condition.
The agency’s proposed PWFA regulations drew in over 100,000 comments, with more than 96,100 mentioning abortion, according to a Bloomberg Law review of the comments posted on Regulations.gov.
Cassidy, the main Senate Republican backer of the Pregnant Workers Fairness Act, also took issue with the EEOC’s inclusion of abortion in its rules. “The Biden administration has gone rogue. These regulations completely disregard legislative intent and attempt to rewrite the law by regulation,” he said in a statement.
Despite these criticisms, the EEOC has indicated it’s moving forward with plans to finalize both proposals. The commission issued its first regulatory agenda in more than two years, with finalized regulations for the Pregnant Workers Fairness Act listed as a top priority.
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