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Punching In: Heavy Is the Head that Wears the EEOC Crown

May 6, 2019, 10:01 AM

Monday morning musings for workplace watchers

Janet Takes the Chair | Apprenticeship Week? | Look Who’s Interviewing at the NLRB

Chris Opfer: It’s a big week for the Equal Employment Opportunity Commission, which could have a functioning quorum for the first time in five months if all goes according to plan in the Senate. Lawmakers are slated to vote at some point in the week on Republican Janet Dhillon’s nomination to join the agency as its new chair. Dhillon, who’s likely to be confirmed on a mostly party-line vote, will have a lot on her plate.

Business lobbyists have been banging the drum to get Dhillon confirmed since right around the time former member Chai Feldblum’s (D) term expired in early January, leaving the five-member commission with just two seats filled. The calls grew louder when a federal judge in D.C. unexpectedly revived Obama-era company pay data disclosure requirements and ordered the commission to start collecting the data by September. Without the three members needed for a quorum, the EEOC is barred from making most big spending, litigation, or policy decisions, such as what to do in response to the court order.

The White House Office of Management and Budget, which has made clear it’s no fan of the pay data collection, recently appealed the court ruling. Still, Dhillon’s addition to the EEOC isn’t going to make the court’s decision go away. If the EEOC were to, say, use its quorum to decide to revoke the pay data initiative, it would likely be staring down the barrel of a contempt of court charge. But a Republican-majority quorum means the agency can start planning how it wants to wind down the pay data collection in the future.

Meanwhile, there’s one other option being floated by some on the business side. The OMB put the data initiative on ice after a preliminary review in which regulators said the EEOC didn’t adequately gauge the burden on employers. So, what if OMB completed a final review and reached the same conclusion? Some are arguing that the groups that challenged the preliminary decision in court would have to go back and challenge the final decision before the EEOC could be forced to collect the data.

But that sounds like a bit of a gamble.

“The judge has been quite clear that her order does not give the EEOC discretion to abandon the pay data collection or modify it,” National Women’s Law Center Vice President Emily Martin told me. “It seems to me that the judge also has been very clear that she will not stand for any slow rolling of this order.”

In this week’s Punching In podcast, Bloomberg Law’s Hassan Kanu talked with Michael Rubin from Altshuler Berzon about a recent ruling that made a big win for California gig workers even bigger. Think you know how to pronounce “Dynamex”?

Jaclyn Diaz: Labor Secretary Alex Acosta got a badgering over the DOL’s Industry Recognized Apprenticeship Program this week during two hearings in front of Senate and House subcommittees.

Acosta and the White House since early in the Trump administration have plugged IRAPs as part of a wider solution to fixing the “skills gap.”

Now, if you need an IRAP refresher, let me summarize: This program, an alternative to the agency’s 80-year-old Registered Apprenticeship Program, would allow businesses, unions, and other groups to develop and essentially self monitor their apprenticeships. Other than that, not many people know much about the new program. Anxiety over what hasn’t been revealed is high—a side effect of Acosta and his closest advisers keeping the development of this close to the chest.

The OMB is currently reviewing the agency’s first proposal on industry-led apprenticeships. Meanwhile the public is still waiting for the release of $150 million in funding that was meant to go to IRAP, but was delayed in February.

Eric Seleznow told me this mass scratching of the heads could have been avoided had the DOL been forthcoming from the start about the specifics and worked with groups to help design and develop the proposal “rather than keeping quiet and waiting until it’s proposed to ask for public comment.” Seleznow, director of nonprofit Jobs for the Future’s Center for Apprenticeship & Work-Based Learning, served as the deputy assistant secretary for the DOL’s Employment and Training Administration in the Obama administration.

The confusion was certainly laid bare during the House and Senate hearings last week as many lawmakers questioned Acosta even on how federal labor law would apply to IRAP and whether this will usher in the demolition of the Registered Apprenticeship programs. A DOL representative said IRAP is just meant to serve as an alternative, not a replacement for its octogenarian counterpart. Concerned parties will see a more complete picture once the program proposal is released soon, they said.

I’ll take a look at what might be included in this program in an exclusive out this week. The details may have big implications for the construction and building trade industry, one that runs counter to the DOL’s initial position on how the industry would be included in IRAP.

The DOL previously said construction and trade industries, which have had high participation for years union and business in Registered Apprenticeships, wouldn’t be able to participate in IRAP. That might have changed after aggressive lobbying from one major nonunion trade group. The continued back-and-forth might also be to blame for the delayed rollout. Be sure to check back for more.

CO: Former Labor Department official Michael Avakian left the DOL in April in response to ethics concerns about his work representing a business in a lawsuit against a union after he joined the agency. That didn’t stop another government agency from flirting with the idea of bringing Avakian on board recently.

Avakian interviewed last month for a position at the National Labor Relations Board, sources tell me. The job would have had him overseeing the staff of former board member Mark Pearce (D). That paints an interesting picture, given that the longtime labor litigator would likely be tasked with helping the board peel back many of its decisions from the days when Pearce was at the helm. Coincidentally, Avakian was also the lead attorney for an Iowa industrial contractor in the controversial Hy-Brand case. That’s the one the board used to scrap an Obama-era approach to joint employer liability shortly after Republicans took control of the NLRB. The board later had to walk back the decision because of conflict questions about Member Bill Emanuel’s (R) role in the case.

It turns out that Avakian didn’t get the gig. “He is not being considered for any job at the NLRB,” a spokesperson told me.

We’re punching out. Daily Labor Report subscribers can check in during the next two weeks for updates. In the meantime, feel free to reach out to us on any and all labor and employment news: copfer@bloomberglaw.com and jdiaz@bloomberglaw.com or on Twitter: @ChrisOpfer and @JaclynmDiaz.

See you back here next Monday.

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To contact the reporter on this story: Chris Opfer in New York at copfer@bloomberglaw.com