Punching In: Here’s What’s New at the Labor Dept. and EEOC

Monday morning musings for workplace watcher

Ballot Box Blues for Trump Agenda? | Deauthorize, Don’t Decertify | New Marching Orders for DOL Lawyers

Chris Opfer: The Justice Department told the Supreme Court last week that it won’t defend the Equal Employment Opportunity Commission’s lawsuit arguing that transgender discrimination is a form of sex bias. One day later, Acting EEOC Chair Victoria Lipnic (R) was in the Big Apple as a keynote speaker at Epstein Becker’s annual briefing. Lipnic told me the agency will continue prosecuting transgender discrimination cases, at least for now. She also offered a handful of updates on other EEOC business.

• Pay Disclosure: You can go ahead and stick a fork in the Obama administration’s proposal to expand pay data reporting requirements for many employers, but there could be changes in the annual EEO-1 survey. Lipnic said she wants to get stakeholders from various corners of the employment law universe to talk about how the agency can better police pay discrimination. “I think that ideally there would be some kind of—not quite as extensive as what we did on the harassment task force—but some effort to try to get to some more consensus view of what’s the right policy choice here,” she said.
• Wellness Plans: The EEOC will publish a new regulation in early January on employee wellness plans. The move is meant to comply with a federal judge’s ruling permanently blocking an Obama-era regulation. The judge said provisions that let employers offer to pay part—up to 30 percent—of a participating employee’s health insurance premium would violate federal law by making plans no longer “voluntary.” The new rule will revoke the offending provisions of the Obama rule without clarifying the line between “voluntary” and “compulsory.” Lipnic says Congress is best positioned to answer that question. “How much bipartisan support is there continuing for incentivizing wellness plans?” she asked. “That’s certainly something I’m going to spend some time on.”
• #MeToo: The agency is still focusing heavily on sex harassment in the wake of the #MeToo movement.
• Disability Discrimination: The EEOC continues to see a significant number of disability discrimination cases. Those are largely disputes over requests for reasonable accommodations.
• Big Data: The agency recently hired its first chief data officer to help it get up to speed on the technology front.
• Ciao Chai? Lipnic is hoping that Chai Feldblum (D) gets confirmed by the Senate for another term before the end of the year, but she’s also preparing for life after Feldblum. If Feldblum is forced to leave in December, the five-member commission—which currently has three members—would be down to two members, which is not enough for a quorum. Lipnic said the current crop of commissioners is looking at what things they can approve now, that they may not have enough members to green-light later. That includes approving the hiring of expert witnesses in some cases and other significant spending. “We’re preparing for that contingency,” Lipnic said.

I spoke with Hassan Kanu about the latest in the Trump transgender debate for this week’s Punching In podcast. Terminal readers can find it here: {NSN PH83UK6TTDS0}

Jaclyn Diaz: The election is a little more than a week away (this is where I remind you readers to vote), and there’s already talk of how labor policy could change if the blue wave rolls through Congress.

Brian Hayes, a former NLRB member and co-chair for Ogletree Deakins’ Traditional Labor Practice Group, said last week that if Democrats take over Congress come November, we can all expect the Trump labor policy to hit a speed bump. Hayes was speaking at a workplace policy panel hosted by the U.S. Chamber of Commerce.

Hayes and others on the panel said Democrats will be much more proactive on labor policy oversight if they win back ne or both chambers of Congress. That means more hearings on policy proposals out of the NLRB and the DOL, which will could regulatory efforts down to a snail’s pace.

Businesses should also be on the lookout for “kitchen sink” labor bills, Lizzy Simmons, vice president of government affairs for the National Retail Federation, said. That means worker-friendly proposals like Sen. Bernie Sanders’ (I-Vt.) Workplace Democracy Act, which would give a worker friendly facelift to National Labor Relations Act, including by expanding “joint employer” liability.

CO: Recent moves out of the NLRB and from General Counsel Peter Robb have some folks on the management side thinking the time might be right to help some workers give their unions the boot. First, Robb took some of the edge off one legal tool unions use to slow things down when workers move to decertify—or disband—a union. Then a pair of board members signaled that the NLRB might revisit restrictions on how soon after a union wins representation workers can force a decertification vote.

But first thing’s first. Epstein Becker lawyers Steve Swirsky and Adam Abrahms recently told me they expect to see more workers moving to “deauthorize” unions. In states that don’t have “right-to-work” laws, unions can require workers in a collective bargaining unit who choose not to join the union to still pay “fair share” fees for bargaining costs. A deauthorization election allows workers to vote to scrap those fees.

“I think you could start to see more deauthorizations,” Abrahms said. “The rules for deauthorization—when they can be filed, how they can be filed—are so much broader.”

Deauthorization could be a particularly attractive option for anti-union advocacy groups, Swirsky said.

“For the groups that are focusing on unhappy employees, I think deauthorizations will move up on the list.”

JD: Secretary Alex Acosta may get all the attention at the Frances Perkins building, but his deputies are just as involved in making sure the lights stay on. His second in command, Patrick Pizzella, has certainly been busy (I’m talking working weekends busy) since taking over the role in April. I recently received Pizzella’s calendar going back to April and through to September through a Freedom of Information Act request. For the most part, Pizzella stays busy each day meeting with DOL personnel across all agencies. He meets frequently with Bryan Slater, the assistant secretary for administration and management, and others in that office.

Outside of department personnel, Pizzella has connected with the occasional business representative, like Katherine Lugar, president of the American Hotel and Lodging Association, and officials from the National Limousine Association and the National Restaurant Association. He’s also made time for the Federalist Society, which Acosta has ties to, and the Heritage Foundation, two big conservative groups.

Another important DOL officer who’s been busy behind the scenes is Labor Solicitor Kate O’Scannlain. She issued an internal memo to regional solicitors this past August, which we recently obtained, dictating how they should pursue enforcement decisions. The goal is to prevent “surprises” and to open up the lines of communication between regional solicitors and the front office, O’Scannlain said in the memo. Here’s my story on what’s in the memo and what it means.

We’re punching out. Daily Labor Report subscribers can check in during the week for updates. In the meantime, free to reach out to us: copfer@bloomberglaw.com and jdiaz@bloomberglaw.com or on Twitter: @ChrisOpfer and @JaclynmDiaz.

See you back here next Monday.

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