Monday morning musings for workplace watchers.
Labor Board Remedies|EEO Data Deadlines
Robert Iafolla: NLRB General Counsel Jennifer Abruzzo’s campaign to expand the agency’s deterrent power has appeared in a recent administrative law judge’s ruling against Starbucks Corp., highlighting the breadth of her effort.
In a decision earlier this month, Administrative Law Judge Christal Key declined to impose enhancements to the standard notice remedy that National Labor Relations Board prosecutors sought against Starbucks, saying that she’d leave it to the general counsel to make her arguments to the board.
Abruzzo’s goal is to add teeth to that notice remedy, which requires employers found to have violated the National Labor Relations Act to post a notice on their premises admitting their illegal action and advising workers of their rights.
NLRB prosecutors called for a series of changes, most notably adopting the requirement that management officials read the notice in front of workers as a standard part of the remedy. The NLRB currently orders notice readings—which can also be fulfilled by an agency staffer reading the notice in the presence of management and workers—in response to egregious labor law violations.
Standardized notice reading would help separate the NLRB’s notice from the many other legal notices posted in the workplace, said union-side lawyer Benjamin Dictor of Eisner Dictor & Lamadrid PC.
“It’s encouraging and hopefully a sign of things to come to see the GC’s office trying to expand available remedies,” Dictor said. “It’s a nice start. It would be great to see meaningful remedies that actually encourage employers to follow the law.”
Still, some federal courts have expressed skepticism about the notice-reading remedy. The US Court of Appeals for the Sixth Circuit, for example, said it raises First Amendment problems and echoes totalitarian systems of performative self-confession.
Federal labor law gives the NLRB remedial authority to “make whole” those hurt by unfair labor practices, but not punitive power to impose penalties. That’s led to wide criticism that the board lacks the ability to dissuade employers from violating federal labor law, since the benefits of doing whatever it takes to dominate the workplace has the potential to outweigh anything the board could possibly order.
Abruzzo has launched a multi-pronged campaign to add teeth to the board’s remedies since taking the reins of the NLRB’s legal department in 2021.
Thus far, she’s convinced the NLRB to adopt consequential damages as a standard remedy. The board held in its December ruling in Thryv that employers can be responsible for the downstream consequences of illegal firings or other labor law violations.
Abruzzo’s also litigating cases that would give the board more power to go after employers that illegally refuse to bargain with unions, or violate the law when workers have clearly shown they want union representation.
Under Abruzzo’s direction, regional offices are pushing for—and sometimes winning—special remedies in unfair labor practice cases. For example, one administrative law judge required a specifically named management official to read a notice posting to workers.
“Expanded and creative use of these enhanced special remedies will be seen more and more as the GC pushes the envelope,” said Ginger Schroder, an attorney with Schroder Joseph & Associates LLP who counsels companies.
- Labor Board Adds Teeth With New Consequential Damages Remedy
- Remedies Should Factor In Emotional Harm, NLRB Lawyer Says
- Employers Must Pay for Refusing to Bargain, NLRB Lawyers Say
J. Edward Moreno: The US Labor Department has again extended the deadline for federal contractors to object to their diversity records being released to a nonprofit journalism organization, a process that has now taken nearly six months.
Companies that do business with the government now have until March 3 to file objections to the disclosure of their Type 2 EEO-1 data to the Center for Investigative Reporting, the DOL’s Office of Federal Contract Compliance Programs announced last week.
This marks the second time the agency has delayed the release of the data this month, after initially saying it would release it on or about Feb. 8. The OFCCP first invited companies to object to their EEO-1 forms being disclosed in an August Federal Register notice.
EEO-1 forms show a company’s demographic data broken down by job category. The data would give a look into how federal contractors—which include some of the nation’s largest companies—fare in hiring and promoting women and minorities.
The agency’s handling of the Freedom of Information Act request led the CIR to sue in November. In a joint case management brief filed Feb. 9, the DOL said it’s still working on getting an accurate list of companies who actually had federal contracts in the covered years and didn’t object to their information being disclosed.
The OFCCP posted a list of non-objecting companies on Feb. 2, in what appeared to be a last chance for contractors to object. The first extension came after the agency realized that list included “companies (or related companies) that had previously submitted objections, had not previously received OFCCP’s notification emails, or believed that they were not federal contractors,” the DOL said in its brief.
OFCCP also indicated in its brief that it was aware of 2,500 companies who objected to being a part of the release. The agency said it will make a call on whether those objections are valid or not by June, then release those records in July.
The issue has caught the attention of House Education and the Workforce Committee Chair Virginia Foxx (R-N.C.), who sent a letter to OFCCP Director Jenny Yang on Feb. 10 saying the agency hasn’t provided contractors “sufficient information and time to object to having their confidential data released” and called for a 60-day extension.
“It further appears that many employers were not aware of the pending FOIA request at OFCCP,” Foxx said in the letter. “The agency must do a much better job of informing federal contractors, especially smaller employers, about their rights and obligations.”
Any federal contractor with 50 or more workers is required to fill out an annual EEO-1 report, which includes information on the race, ethnicity, and gender of employees. But that information is typically under seal.
The CIR has for years pushed the OFCCP to cough up those records through several FOIA requests and litigation. The agency has taken the stance that EEO-1 forms may fall under a FOIA carveout for commercial information.
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