In Part I of this series, we examined expected changes at the U.S. Department of Labor under President Trump’s presidency. In Part II, we will take a look at changes already made, and others expected to come, at the Equal Employment Opportunity Commission (EEOC) and National Labor Relations Board (NLRB). Under a Trump administration we are likely to see significant shifts in these agencies from Obama-era policies and regulations. A more employer-friendly shift is expected, though not all Obama administration policies and rulings are expected to be wiped away.
Equal Employment Opportunity Commission (EEOC)
On January 25, 2017, President Trump appointed Victoria Lipnic as acting chair of the EEOC. Lipnic was previously a Commissioner of the EEOC. While a Commissioner, Lipnic voted against the EEOC’s July 2015 decision that sexual orientation discrimination is gender discrimination prohibited by Title VII. In addition to appointing Lipnic, Trump can fill another vacant commissioner position. But for now, the Democrat-appointed commissioners outnumber Republican-appointed commissioners. Trump will have the opportunity to nominate the EEOC’s new general counsel.
President Trump has stated a desire to focus on job growth, which is something Lipnic will make a focal point for the EEOC. Recently, Lipnic stated, “it is a new day and to the extent [we can] help foster employment opportunity and economic growth . . . that is something we will be focused on.” Consistent with President Trump’s beliefs, Lipnic has said the EEOC will be mindful of ways to refocus regulations so as to foster job growth.
However, this is not to say the EEOC will forego its enforcement activities. The EEOC, under Lipnic, is likely to pay attention to employer responsibilities in joint employment, independent contractors, and the gig economy. Equal pay issues are also likely to be a focus of the EEOC going forward. In the past, the EEOC has filed few equal pay cases but Lipnic considers this a “priority.” In addition, since 2017 is the Age Discrimination in Employment Act’s 50th anniversary, Lipnic has stated that age claims will see an increased focus by the EEOC.
National Labor Relations Board (NLRB)
On January 26, 2017, President Trump appointed Philip Miscimarra as acting chairman of the NLRB, taking over from Democrat Mark Gaston Pearce. Miscimarra is presently the sole Republican member of the Board. However, the NLRB has 2 vacant seats, both of which President Trump is likely to fill with Republican appointments. Trump will also appoint a new NLRB General Counsel in November 2017, when the current term of Richard Griffin, Jr. expires.
During the Obama administration, the NLRB issued far-reaching decisions and rules most of which were not employer friendly. Most notable among these decisions was the NLRB’s controversial joint employer standard in Browning-Ferris Industries of California, Inc. That 2015 decision broadened the joint employer standard to encompass relationships where the potential joint employer has the ability to control employees’ terms and conditions of employment even if such control is never exercised. That decision could be reversed by a Trump-appointed NLRB as Miscimarra opposed the ruling.
Other NLRB rulings that may be reversed include those: limiting employers’ ability to prohibit employee use of social media to air workplace grievances; striking down employer handbook policies as overly broad because of perceived “chilling effects on concerted activity”; favoring “micro units” which consist of small numbers of employees as proper bargaining units; and the enactment of the quickie election rules which significantly cut the time for employers to combat union election campaigns.
It may take a few years before decisions like those mentioned above are reversed. However, we expect the NLRB to curtail its activity in the non-union sector where it has been focusing on employer actions that chill concerted activity.
Should you have any questions about this matter, please do not hesitate to contact PMP. Please keep in mind that in addition to our staff of seasoned HR professionals, we also have experienced employment attorneys on-site to address any questions you may have regarding legal compliance. Contact us at 800-921-2195 or 516-921-3400. You can also visit our website http://www.pmphr.com/ or e-mail us at info@pmpHR.com.
This article is intended for general information only and should not be construed as legal advice.
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