November 17, 2021, the Department of Labor (“DOL”), National Labor Relations Board (“NLRB”), and Equal Employment Opportunity Commission (“EEOC”) conducted a webinar on Ending Retaliation and Promoting Workers Rights. The webinar is the first component of a “Joint Initiative” devoted to “vigorous enforcement” of laws against retaliation, through closer inter-agency cooperation. The webinar was moderated by EEOC Regional Director Robert Canino and involved over 90 minutes of detailed remarks from Solicitor of Labor Seema Nanda, NLRB General Counsel Jennifer Abruzzo, EEOC Chair Charlotte Burrows and Acting DOL Wage and Hour Division Director Jessica Looman.
During the webinar, it became crystal clear that all of the agencies intend, in the words of DOL Solicitor Seema Nanda to “use all the tools at our disposal to fight retaliation.” The agencies ‘leaders all repeatedly stressed aggressive and immediate use of such enforcement tools as seeking temporary restraining orders, injunctive relief and the broader utilization of “enhanced compliance agreements.” The agencies also expressed a desire to “nip retaliation in the bud” by asserting a broad interpretation of what constitutes retaliation. In addition to termination and disciplinary action, panelists focused on other potential forms of unlawful retaliation, including providing poor references to former employees, false accusations of poor performance, and threats concerning an employee’s immigration status.
While the Joint Initiative will focus on enhanced enforcement, it may also build on efforts by the Obama Administration to combat retaliation, such as the DOL’s Whistleblower Protection Advisory Committee (“WPAC”).[1] This initiative coupled increased enforcement efforts with concrete guidance specifically designed to facilitate employers’ compliance efforts. It is at this point unclear if the Joint Initiative will also reconcile contradictory guidance issued by different agencies. For example, both the WPAC’s Recommended Practices for Anti-Retaliation Programs issued under the auspices of the DOL, and the EEOC’s Select Task Force on the Study of Harassment in the Workplace stress the importance of protecting the confidentiality of employee complaints to effectively combating workplace retaliation. On the other hand, the NLRB frequently interprets the National Labor Relations Act to prohibit employer policies promoting confidentiality during investigations.[2]
While awaiting the agencies’ next steps, employers should continue investing in compliance and training to reduce risk. This includes educating front line managers in the key roles they play in appropriately responding to employee concerns. For example, Epstein Becker & Green’s Halting Harassment e-learning solution offers curricula to help managers further understand key and evolving elements of retaliation claims such as “what is protected activity” and “what is an adverse action.” In addition, our whistleblower defense team has in recent months created PowerPoint training modules for employers, both private and public, and in a wide range of highly regulated industries, such as healthcare and financial services. These modules are designed to educate managers on the pivotal role they play in fostering an effective compliance program and avoiding retaliation.
In short, employers can expect heightened enforcement of the dozens of federal laws affording protection against retaliation. Now is the time to double-down and invest in compliance.
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[1] Greg Keating served two terms on the WPAC.
[2] Board law requires employers to furnish unions with notes and witness statements from internal investigations resulting in employee discipline. See Am. Baptist Homes of the W., 362 NLRB 1135, 1135 (2015). In 2019 the Board’s Apogee Retail, decision reversed prior law prohibiting certain employer policies instructing employees to maintain confidentiality regarding workplace investigations. 368 NLRB No. 144 (2019). This past August, General Counsel Abruzzo signaled she may ask the Board to overturn Apogee Retail and once again prohibit such confidentiality policies.
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