Biden Time: Union Attorney Nominated For NLRB Post, EEOC Wellness Regs Are "Frozen"

Constangy, Brooks, Smith & Prophete, LLP

Constangy, Brooks, Smith & Prophete, LLP

The latest.

"Happy Friday!"

President Joe Biden has nominated Jennifer Abruzzo, special counsel with the Communication Workers of America union, to be General Counsel of the National Labor Relations Board. This is the position that was created when the President fired Trump GC Peter Robb and his deputy immediately after taking office. (Peter Sung Ohr has been Acting GC since that time.)

Legal challenges to the validity of Mr. Robb's termination, 10 months before his term expired, are continuing.

According to, Ms. Abruzzo was with the NLRB for 23 years. She was Acting General Counsel after Richard Griffin, who was appointed GC by President Obama, resigned in 2017. Ms. Abruzzo left the NLRB shortly after Mr. Robb came in as President Trump's General Counsel. And now Ms. Abruzzo will replace Mr. Robb if confirmed.

Isn't that ironic? Like rain on your wedding day?

Which, now that I think about it, is not ironic at all.

Also, the Equal Employment Opportunity Commission announced this week that it is "freezing" the proposed wellness regulations it issued in January, while President Trump was still in office. I blogged about the proposed regs here. According to the EEOC, "The next steps . . . are under consideration."

I wasn't sure that the Biden Administration would have a problem with the proposed regulations, and it's still possible that they will be reissued intact or replaced with a new version that has only minor changes. In the meantime, employers wondering where they stand will have to stay in limbo for a while longer.

In happier news, and contrary to what I reported a few weeks ago, Bloomberg Law reports that the EEOC is going to keep its new conciliation rule, which will require the agency to share information and evidence to employers during the conciliation process. The rule took effect on Wednesday, and will apply to all conciliations that occur from here on out.

  • What's a conciliation? Conciliation takes place after the EEOC has concluded its investigation of the charge and has issued a "cause" determination against the employer, meaning a finding that the employer was in violation of the law. The EEOC then offers to "conciliate" (settle) with the employer, and the employer is free to attempt conciliation or to decline. If no conciliation agreement is reached, the EEOC can sue the employer itself, or it can issue a notice of right to sue to the charging party, which allows the person who filed the charge to file a lawsuit. Conciliation agreements usually require the employer -- in addition to paying money -- to make periodic reports to the EEOC on its compliance with the agreement, and to conduct employee training in the area(s) in which the employer was found to be in violation of the law, among other things.

"That's all, folks!"

Image Credits: From flickr, Creative Commons license. Caricature of Joe Biden by DonkeyHotey, photo of Joe Biden by Gage Skidmore.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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