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Punching In: Labor Enforcement Agenda Rests on Democratic Bill

Aug. 16, 2021, 10:18 AM

Monday morning musings for workplace watchers

DOL Dollar Dig | AWOL Guidance

Ben Penn: It’s becoming clear that the Democrats-only reconciliation legislation is the likeliest path for the Biden administration to beef up labor agency enforcement.

President Joe Biden’s proposal to increase fiscal 2022 dollars on worker protection agencies won’t necessarily get approved through the regular appropriations process, with Democrats holding slim majorities in both chambers. The bipartisan infrastructure bill the Senate passed last week was silent on U.S. Labor Department spending, despite financing many new construction jobs that would hand DOL an expanded enforcement mandate.

This leaves reconciliation as the surest route to address a longstanding concern of worker advocates that the government lacks resources to adequately police standards on wages, safety, union organizing, and anti-discrimination. Republicans tend to oppose soaring enforcement budgets that could lead to games of “gotcha” on well-intentioned employers, but the reconciliation process allows Democrats to enact a spending surge without a single GOP vote.

It won’t get the attention of other elements in Democrats’ $3.5 trillion package, but the outcome of enforcement provisions currently being drafted will determine the administration’s ability to alter the labor compliance landscape for years.

The bill likely will include an increase in across-the-board spending for the DOL, the National Labor Relations Board, and the U.S. Equal Employment Opportunity Commission, but it remains unresolved how that will be divvied up among subagencies, as we reported last week.

Many of the social reforms and union-friendly labor policies Democrats will try to jam into the measure are subject to a veto from the Senate parliamentarian—who can reject provisions that aren’t tied to the budget. It’s apparent, however, that the parliamentarian won’t take issue with bolstering the budgets of worker protection agencies through reconciliation.

There’s only so much money to go around, setting up an interesting prioritization balance among a handful of enforcement divisions that could all present a compelling case for a big boost. The shortage in investigators for occupational safety and wage-hour, among other agencies, is well-documented. And if the NLRB wishes to make good on Democrats’ plans to establish penalties for companies violating workers’ union rights, the agency will need more dough to do it.

“Biden’s ‘Build Back Better’ agenda depends very much on job quality standards being attached to government spending,” said David Madland, a senior adviser to the American Worker Project at the left-leaning Center for American Progress. “In order for that to be real, you’ve got to enforce those standards. Unless there’s more money we don’t think the enforcement will be as robust as it could or should be.”

READ MORE: Democrats’ Budget Deal Seeks to Penalize Labor Law Violators

Paige Smith: Recent news has been dominated by New York Gov. Andrew Cuomo’s resignation following multiple sexual harassment allegations and a reckoning in the gaming industry, after a high-profile government lawsuit alleged Activision Blizzard Inc. subjected female workers to sexual harassment. Both incidents show that the days of #MeToo are far from over.

Yet, for years, guidance for workers and employers on how to navigate and prevent workplace sexual harassment has languished.

The EEOC developed guidelines on how the workplace civil rights agency enforces the federal law that outlaws sexual harassment before allegations brought against Harvey Weinstein catalyzed the #MeToo movement. But those guidelines have been in limbo since they were submitted to the White House’s Office of Management and Budget in November 2017.

EEOC Chair Charlotte Burrows, a Democrat, told Bloomberg Law in March that she’d like to revisit the drafted guidance.

Burrows said in an email last week that addressing and remedying harassment still is a commission priority.

“I believe combatting harassment is a bipartisan issue, and my goal is that the Commission can issue updated guidance on harassment, including sexual harassment, that builds on the excellent work of the EEOC’s 2016 Select Task Force on the Study of Harassment in the Workplace,” she said.

An updated draft of the guidance was circulated to EEOC commissioners in January, before Biden’s inauguration, sources familiar with agency proceedings said. There hasn’t been any publicly known agency action since Burrows said she’d like to revisit the guidelines.

The EEOC didn’t immediately respond to an inquiry about the January draft.

READ MORE: Cuomo Harassment Scandal Underscores Limits of #MeToo Movement

Existing sexual harassment guidance is 30 years old, and is missing key points for employers and workers, said Sunu Chandy, legal director of the National Women’s Law Center. The 2017 draft guidance received more than 100 public comments.

“These are really important documents to help guide employers in doing the right thing and addressing complaints and having proactive policies, and also ensure that employees know what their rights are,” Chandy said. “You cannot have legal standards from 30 years ago being looked to as any sort of useful instructions for how to handle these areas.”

Republicans hold the majority on the quasi-independent bipartisan commission, which shouldn’t be an impediment to moving forward with guidance, Chandy said.

“I see no reason why a bipartisan group can’t come together to issue such a guidance,” she said.

Rae Vann was a member of the EEOC’s 2016 Select Task Force, which studied harassment and assisted with the creation of the guidelines. She said while not perfect, it provides clarity on the legal principles applicable to workplace harassment.

This is, however, a “good time for a refresh” of the guidance, she said in an email, because the 2017 draft addressed sexual orientation and gender identity-based harassment at length—but without having the benefit of the U.S. Supreme Court’s decision in Bostock v. Clayton County, Ga., which expanded anti-discrimination protections for LGBT workers.

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

To contact the reporters on this story: Ben Penn in Washington at bpenn@bloomberglaw.com; Paige Smith in Washington at psmith@bloomberglaw.com

To contact the editor responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com