Editor’s note: This is the first in a two-part series.
While all three branches of the federal government can impact labor and employment law on the national level, most major changes come from two executive branch departments—the Department of Justice (DOJ) and the Department of Labor (DOL)—and two independent agencies—the Equal Employment Opportunity Commission (EEOC) and the National Labor Relations Board (NLRB).
Given the importance of these four agencies, it’s no surprise that employers frequently consult their labor and employment counsel when appointees are nominated or confirmed to key posts. This makes it critical for employment attorneys—whether in-house or outside counsel—to understand the respective roles of these department and agencies, and to give their clients accurate and confidence-inspiring advice and counseling.
This week, we examine the NLRB and EEOC.
National Labor Relations Board
The NLRB enforces the National Labor Relations Act (NLRA), which ensures the rights of employees to engage in collective bargaining and other union-related activities. The NLRB is a five-member bi-partisan board, and the current president’s party is permitted to fill up to three of those seats. Board members are appointed by the president and confirmed by the Senate to staggered and renewable five-year terms. With the recent Senate confirmations of Republicans Marvin Kaplan and William Emmanuel, the NLRB now has a Republican majority. Remaining board members include Republican NLRB Chair Phillip Miscimarra and Democrats Lauren McFerran and Mark Gaston Pierce.
While the NLRB makes law on a case-by-case basis and is subject to review by the federal court system, decisions of the NLRB can significantly limit what actions employers can legally take with regards to their employees. The NLRB, and the regional offices underneath it, can impose penalties on employers who violate the law as it has been interpreted by the board.
If given the opportunity, the new Republican-majority NLRB is expected to reverse or weaken several labor-friendly rulings of the Obama-era board on topics including joint employment, ambush elections, workplace courtesy rules and social media. Under the current joint employment standard, established by the NLRB in Browning-Ferris Industries of California, 362 NLRB No. 186 (Aug. 27, 2015), joint employment can exist merely based on indirect or potential control over the terms and conditions of employment. Prior to Browning-Ferris, a company needed to exercise “direct and immediate” control over the terms and conditions of employment in order to be considered an employer. On April 14, 2015, the NLRB finalized new election rules, which reduced the period between the union’s filing of an election petition and a union election to 10 to 21 days. Under the old election rule, elections were generally held between 38-41 days from the filing of an election petition. These so-called “quickie” elections can make it more difficult for employers to effectively communicate with their employees prior to the election.
The NLRB has also scrutinized employers who terminated employees for making critical statements on social media platforms, on the grounds that such comments can be protected concerted activity under the NLRA. The board has frequently struck down employee handbook provisions preventing disrespectful comments online, or gossip or discourteousness in the workplace, on the grounds that such provisions could prevent employees from discussing the terms and conditions of their employment.
The EEOC regulates and enforces laws that prohibit workplace discrimination based on race, sex, age, disability, and other protected categories. The EEOC investigates charges of employment discrimination, harassment, and retaliation, and brings suit on behalf of employees in federal court.
The EEOC is also a bipartisan agency and consists of six agency executives who are nominated by the president and confirmed by the Senate: one general counsel with a renewable four-year term and five commissioners with staggered and renewable five-year terms. The EEOC cannot have more than three commissioners from the president’s party. All four current agency executives were Obama appointees, including Republican Acting Chair Victoria Lipnic. Commissioners Chai Feldblum, Charlotte Burrows and Jenny Yang are all Democrats.
President Donald Trump will have the opportunity to appoint a new general counsel and two commissioners. President Trump has yet to nominate anyone for general counsel but has submitted two nominees for the commission: Burlington Stores General Counsel Janet Dhillon and retired Army lieutenant colonel and nonlawyer Daniel Gade. If confirmed, Dhillon would become commission chair, and Gade would become a commissioner, replacing Commissioner Yang (whose term expired on July 1, but has opted to remain on the board until her successor is confirmed).
Acting Chair Lipnic has stated that “more will remain the same than will change” under her tenure. The EEOC has already released its strategic enforcement plan, outlining its priorities from 2017 through 2022. The biggest change so far trickled down to the EEOC from the White House Office of Management and Budget (OMB). On Aug. 29, the OMB expressed concern in a memorandum that the revised form EEO-1—which added pay data reporting to preexisting race, sex and job category tracking requirements for larger employers—would be “burdensome” and “lack practical utility.” In turn, the EEOC has stayed implementation of the new form indefinitely.
Bigger changes could be in store if nominees Dhillon and Gade are confirmed. Dhillon’s big law and corporate counsel-heavy background contrasts strongly with the current commissioners’ diverse prior experiences. Gade has been criticized for opposing the inclusion of women in military combat roles and claiming that disability benefits hurt veterans by making them more dependent on government. Both have been criticized by employee advocates regarding their positions on whether sexual orientation and gender identity are protected under the law.
In addition to staying current on the most recent NLRB and EEOC opinions, it is essential that labor and employment counsel in all settings familiarize themselves with the makeup and backgrounds of NLRB and EEOC leadership in order to better anticipate changes in this often unpredictable area of the law. At the same time, it is important to remember that no new presidential administration can pack these agencies with members of their own political party, and changes often take place on a case-by-case basis.
To learn more, stay tuned for the second part of this article when we examine the DOL and DOJ.
Malcolm Ingram and Alexander V. Batoff are associates at Obermayer Rebmann Maxwell & Hippel. They both focus their practices on counseling management in all aspects of labor relations and employment law. Contact them at email@example.com and firstname.lastname@example.org.