What does the future have in store for labor and employment law under the President Donald Trump administration? The American Bar Association Section of Labor and Employment Law’s Technology in the Practice and Workplace Committee offered some insight at their 2017 national symposium in Washington, D.C.
A panel comprised of Equal Employment Opportunity Commission Acting Chair Victoria A. Lipnic, Harvard Law School’s Labor and Worklife Program Executive Director Sharon Block and David S. Fortney, co-founder of Fortney & Scott, LLC in Washington, pondered the question at an April 6 session.
While Republicans will hold a majority on the commission after Commissioner Jenny Yang’s term expires in July and Trump most likely will nominate a Republican general counsel, the EEOC will continue to “operate in a bipartisan fashion,” Acting Chair Lipnic said.
Lipnic also mentioned that the commission’s overall enforcement priorities “will remain the same” but that there may be a “change in approach, specifically in regards to regulatory, policy and sub-regulatory policy documents.”
Lipnic shed light on the EEOC’s past efforts to combat unlawful workplace harassment. When the commission “continued to see a disproportionate amount of harassment cases,” the agency sought to focus on prevention, she said.
The commission’s Select Task Force on the Study of Harassment in the Workplace, which included attorneys, advocates, academics and union-side representatives, was created in January 2015 to identify ways to “reach people before harassment happens,” Lipnic said. The following year, the Task Force co-chairs issued a report.
This year, the EEOC voted to release for public comment proposed enforcement guidance on unlawful harassment. The comment period closed in March. According to Lipnic, the guidance will include practice recommendations, such as general workplace civility training and bystander intervention training.
Stakeholders should “expect to see the EEOC pushing these recommendations and moving the ball in preventing harassment” in the workplace, she added.
The U.S. Chamber of Commerce has petitioned the Office of Management and Budget to review its approval of the EEOC’s plan to collect employers’ pay data categorized by sex, race and ethnicity—a plan that revises the EEO-1 form.
Lipnic, who voted against the revised EEO-1 form, expects the review to happen. She said she would be “prepared to put in front of the commission a vote on the revised EEO-1 report that would restore what is now considered the Component 1 [format].”
Many also are keeping an eye on an alternative revocation option: utilization of the Congressional Review Act. Some believe that the CRA could be used to undo the revised EEO-1 report.
Block noted while this is still an option, the CRA route becomes less viable “the closer we are to the 60 legislative day deadline.”
Fortney offered the employer perspective on the issue. He said many believe the revised EEO-1 form “is deeply flawed,” citing the required data collection amounts as a top concern. There is a “strong likelihood that before end of March in Q1 of 2018, the revised report won’t be in effect,” he said.
However, he stressed that “the pay data collection issue isn’t going away—it’s a question of what method.”
The 50th anniversary of the Age Discrimination in Employment Act is next month, and the EEOC will hold a hearing on the law. The hiring of older workers is a “big problem, especially in the post-recession period,” Lipnic stated.
The acting chair emphasized the importance of employers having a “holistic approach in hiring.” Companies that have “everything geared towards tech” may exclude older workers from applying to job openings, she explained.
The U.S. Court of Appeals for the Seventh Circuit in a recent en banc decision held sexual orientation is protected under Title VII, overturning circuit precedent.
Lipnic stated the EEOC “has been at the forefront of this [issue] the last seven years, has been litigating these types of cases for many years and expects to continue to do so.”
Sharon Block discussed the composition of the National Labor Relations Board and how the board may or may not change under the Trump administration. Block said that it “will take a while before you see changes—especially precedent.”
In comparison to previous administrations, the Trump administration is “taking a long time for nominations,” she observed. This means that it may be quite a while before there are any changes in the law.
Block also cited controversy that follows nominees as another factor in the potential slow pace of changes at the NLRB. A nominee for the role of general counsel at the NLRB most likely will be controversial, as well as board nominations. Block noted “Board nominees are often controversial.”
“There aren’t hearings on every nominee, but if they choose to go that route, it will take time,” she said.
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