Punching In: EEOC Nomination Could Renew Culture War in Congress

Feb. 24, 2020, 11:00 AM

Monday morning musings for workplace watchers

Jostling Over Jocelyn | Pregnancy Bill Abortion Fight | Guidance Goes Up

Chris Opfer: President Donald Trump will soon announce five picks for seats on the Equal Employment Opportunity Commission and National Labor Relations Board. The list, which we reported last week, includes Labor Department official Keith Sonderling (R), Gibson Dunn attorney Andrea Lucas (R) and civil rights lawyer Jocelyn Samuels (D) for the EEOC, along with Lauren McFerran (D) and Marvin Kaplan (R) for new terms at the labor board.

The formal nominations would move the picks to the Senate, where things could get weird. The fivesome is expected to be considered by the Health, Education, Labor and Pensions Committee as a single package. If the nominations eventually get to the Senate floor, it would also likely be at the same time. That’s primarily a reflection of a crowded calendar and ticking clock to move nominations before elections season makes Capitol Hill a ghost town.

The package deal could also help navigate some expected Republican opposition to Samuels, who runs an LGBT rights think tank in California. Supporters of the former Health and Human Services Department civil rights chief are already trying to get ahead of possible concerns from the same group of lawmakers that pumped the brakes on former Commissioner Chai Feldblum’s third term at the EEOC. Republican Sens. Mike Lee (Utah), Marco Rubio (Fla.), James Lankford (Okla.), and Steve Daines (Mont.) opposed Feldblum because of her position on LGBT rights and their concerns about whether she would respect religious liberty.

If the same folks who balked at Feldblum’s nomination want to stop Samuels from getting to the commission, are they willing to risk the other four nominations to do it? We may soon find out.

The Samuels camp is trying to distinguish her from Feldblum when it comes to drawing a line between LGBT discrimination and religious liberty. They say she hasn’t specifically weighed in on the conflict. Samuels did, however, helped develop Obamacare regulations to ban LGBT discrimination in health care during the Obama administration. She also helped the Justice Department enforce marriage equality after the Supreme Court made it the law of the land seven years ago.

In other words, it’s not clear whether Lee & Co. will see the distinction. A Lee staffer has previously said he won’t weigh in on any nominations until they’re official.

Jaclyn Diaz: The House could soon move on a proposed bill that would resolve legal ambiguities over when a pregnant worker is entitled to accommodations on the job.

The Pregnant Workers Fairness Act (H.R. 2694), with the help of industry and advocacy backing, could get a floor vote in coming weeks. Support for the bill hovers around 217, just under the magic number needed to pass. The bill’s backers include 11 Republicans, at least some of whom may have been swayed by support of the bill coming from big businesses and the U.S. Chamber of Commerce.

We last left the bill as it was advanced by the House Education and Labor Committee in January. Leading up to the markup, the Chamber, the National Women’s Law Center, and other groups negotiated changes designed to mollify concerns from some employers that the legislation is too vague and overly broad.

With an abbreviated legislative calendar due to elections this year, those stakeholders will be working the halls of Congress in the next week in order to galvanize a broader group of lawmakers to support the bill. Not far from their minds is the other chamber. Advocates are gearing up for a Senate-side blitz on the bill, with an eye toward achieving the rare goal of passing bipartisan labor-related legislation. That’s a long shot.

Sen. Bob Casey (D-Pa.) is expected to eventually introduce a Senate companion version the bill, as he has in prior years.

Republican support could hinge on concerns about religious exemptions and abortion. Rep. Virginia Foxx (R-N.C.) unsuccessfully pushed an amendment that would have allowed certain religious employers to decline to provide accommodations for workers who have had an abortion or in other situations where doing so would conflict with their faith. Foxx floated language similar to the 1964 Civil Rights Act, and a Kentucky law, which shields “a religious corporation, association, educational institution or society” from certain anti-discrimination requirements.

Proponents of the bill said that language isn’t necessary because religious protections are already sufficiently covered under existing statutes.

Ben Penn: Labor Department officials have been working around the clock for months to comply with a White House-imposed deadline of this Friday to post online all current guidance documents.

This requirement, which applies to the DOL, the EEOC, and other regulatory agencies across the government, will provide the public with a handy searchable web portal to browse through links to each agency’s guidance. Anything that doesn’t crack the list is thereby invalid.

This is no small task for any agency, but the lift is particularly heavy at the Labor Department. The DOL has had to scour through decades of various memos, manuals, bulletins, FAQs, and more to determine what will go up on the website and what will be scrapped.

The department says it’s on track to hit the deadline, but the White House is giving agencies a grace period through late June to post more documents that may have slipped through the cracks during the prior few months of searching.

Regardless, this website should offer businesses, workers, and yes, the media, the type of transparency into how the department interprets its rules that we all crave. Guidance documents certainly exist that were issued under prior Democratic administrations that the current DOL may wish to quietly abandon. Feel free to reach out if you notice a glaring omission once the site is launched, because it may not be an oversight.

In other DOL news, we’re closely monitoring the Federal Register this week for the possible publication of final rules on Industry-Recognized Apprenticeship Programs and annual trust reports for unions. In addition to both clearing White House regulatory review last week, the pair of final rules also share the trait of impacting union apprenticeship programs, albeit in quite disparate ways.

The first regulation creates a new approval process for apprenticeship programs, giving industry groups and unions more control in an effort to streamline the system and rapidly expand the number of apprentices. But the second rule requires unions to start filing annual financial reports on their trusts, which can include their apprenticeship training centers, potentially creating operational hurdles for those programs.

We’re punching out. Daily Labor Report subscribers can check in during the week for updates. In the meantime, feel free to reach out to us. See you back here next Monday.

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To contact the reporters on this story: Chris Opfer in New York at copfer@bloomberglaw.com; Ben Penn in Washington at bpenn@bloomberglaw.com; Jaclyn Diaz in Washington at jdiaz@bloomberglaw.com

To contact the editor responsible for this story: Karl Hardy at khardy@bloomberglaw.com

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