Punching In: Farewell to a Powerhouse Littler Employment Lawyer

Monday morning musings for workplace watchers.

Saying Goodbye|EEOC’s New Year Ahead

Rebecca Rainey:

Michael Lotito, a giant within the Beltway’s labor and employment policy bar, died last month at the age of 76.

Most recently a shareholder at Littler Mendelson PC in San Francisco, and founder of its Workplace Policy Institute, Lotito was highly sought after by business executives, lawmakers, and the media to break down the latest developments in labor policy from the business perspective. During his tenure he worked as labor and policy counsel for the International Franchise Association and as a member of the Labor Relations Committee of the Chamber of Commerce.

Lotito was known in Washington as one of the most prominent corporate-side voices fighting against policies from the US Labor Department and National Labor Relations Board that they argued would expand legal liabilities for employers, including the recent overtime and independent contractor rules.

“Throughout his career, Michael pushed boundaries while exemplifying the highest standards of professionalism and integrity,” his firm said in a statement announcing his passing.

“Michael’s vision, dedication and leadership have left an indelible mark on us all,” added Erin Webber, Littler’s managing director and president. “He was not only a brilliant legal mind and strategist, but also a mentor, friend, and inspiration to many.”

During his more than 40 years as a lawyer, Lotito made multiple appearances before Senate and House committees, as well as testifying before the NLRB and the Equal Employment Opportunity Commission. Prior to joining Littler in 2012 he was a partner at Jackson Lewis, where he launched his legal career in 1976.

I last spoke with Lotito in mid-November. He was at a doctor’s appointment and had been frustrated with what seemed like an endless bout of recurring illnesses throughout the year keeping him on the sidelines as the new Trump administration was forming.

I didn’t record the conversation, but I recall him saying he wanted to get back to what he described as his passion. When we weren’t talking about labor and employment policy, we were talking about his grandkids. He founded the Emma Coalition in 2018, a non-profit aimed at addressing worker displacement from new technologies, which he named after one of his grandchildren.

As a source, Lotito was sharp, witty, and loved to provide a zinger of a quote. And when he hit the perfect sound bite— he always let you know.

In his memory, here are some of his best:

The country must be galvanized like it was by John F. Kennedy’s space ambitions in the 1960s, Lotito said, when interviewed for a 2023 story on Congress’ efforts to address artificial intelligence’s impacts on the workforce. “He said we’re going to the moon and inspired a generation. We need somebody to stand up and say we will transform the American workforce.”

“OLMS’s exploration of ‘split income reporting’ should begin by reading the SCOTUS decision reversing Chevron,” said Lotito in a 2024 interview on a potential DOL rule expanding persuader reporting requirements. “It might save all of us a lot of time instead of having to bring the inevitable challenge asking the courts to strike down something the Department cannot do.”

“If the Biden administration goes down the road of an $82,000 number, in order to be able to justify it legally based upon prior precedent, they have only one thing to rely upon, and that’s magic,” he said when commenting for a 2022 story about Democrats’ calls for the DOL to expand overtime protections to workers making less than $82,000 annually.

“The timing and the optics are stunning,” Lotito said of President Joe Biden’s 2021 firing of NLRB general counsel Peter Robb. “At the same time the president is talking about unity, you’re firing this individual of an independent agency without cause because unions have asked you to do it. So from a labor management perspective this isn’t about unity. This is about bare-knuckle politics.”

The Equal Employment Opportunity Commission seal is displayed on a door at headquarters in Washington, D.C., on Tuesday, Feb. 18, 2020.

Rebecca Klar:

As 2025 begins, the EEOC is facing down a priority shift that threatens to dismantle key work it did this past year—one of its most productive recently.

President-elect Donald Trump will be positioned to enact major changes after Jan. 20. Some fear he could exercise his penchant for firing by targeting the agency’s three Democratic commissioners.

That seems unlikely, but even so, the shift to install a Republican as the commission’s chair and appoint a GOP general counsel following the inauguration threatens to undo the work of the past 12 months.

After more than two years of partisan gridlock caused in part by the five-member EEOC’s staggered commissioner terms and sluggish Senate action on commission nominees, Democrats finally grabbed the majority and commission chair in late 2023. They struck quickly, by finalizing in 2024 two key Democrat priorities: updated workplace harassment guidance and rules under the Pregnant Workers Fairness Act.

In both cases the commission voted along party lines. The harassment guidance reinforced LGBTQ+ protections around misgendering employees, and the final rules under the PWFA required employers to provide reasonable accommodations for workers that choose to have or not have an abortion.

Andrea Lucas, currently the only Republican on the commission, voted against both, and issued public statements questioning the regulation and guidance’s legality. When Trump takes office later this month, Lucas is almost certain to be named chair, empowering her to set the EEOC’s policy agenda, and potentially put opposition into action.

The harassment guidance and PWFA rules are already under threat in multiple lawsuits including those filed by Republican-led states, a Texas company, and Catholic organizations. The EEOC is represented by the Justice Department, and the change in administration could lead to the Trump DOJ withdrawing or reducing support for some of the Biden-era policies — especially after the first Trump administration didn’t shy away from clashing with the agency.

But it’s not all doom and gloom for EEOC Democrats—at least not immediately.

It’s unlikely the progress Democrats made to move the needle on their goals will be unraveled too fast, even if the new administration seeks to change course. Given the staggered terms at the EEOC, Democrats will likely keep a voting majority until at least 2026.

We’re punching out. Daily Labor Report subscribers please check in for updates during the week, and feel free to reach out to us.