Constangy, Brooks, Smith & Prophete, LLP

Tougher EEOC and OFCCP, a legal challenge at NLRB, and more.

NOTE FROM ROBIN: In this limited-edition "Biden Time" series, I provide regular updates on the new President's appointments and other actions that will be of interest to employers.

President Joe Biden continued to rock along in his first full week in office. Here are the highlights:

"C'mon, man! I love employers! I read Employment & Labor Insider every Friday!"

The Equal Employment Opportunity Commission announced yesterday that it is ending its pilot programs on mediation and conciliation. The mediation program allowed parties to request mediation before, and at any stage during, the investigation of a charge. Presumably, the end of the program means that the parties will go back to having one shot at mediation -- before the investigation begins -- and that will be it. Under the conciliation program, the EEOC was going to share more information about the evidence supporting its "cause" determination with employers, which would allow employers to make a more informed decision about whether to enter into a conciliation agreement with the EEOC.

The end of these programs is not great news, but the EEOC did say that it would keep some features of its pilot programs, including remote mediations via videoconference. And, no matter who is in office, the agency is usually receptive to requests for mediation.

"What's a mediation?" Mediation is voluntary, and is an attempt by the parties (employer and "charging party," with an EEOC mediator) to settle a charge at the outset. If both parties agree to mediate, and if they reach an agreement at the mediation, the EEOC closes out the charge. If no settlement is reached (or if no mediation takes place because one of the parties declined), the EEOC proceeds with its investigation of the charge. Settlements reached in EEOC mediations are private.

"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.

OFCCP: No more Mr. Nice Guy. According to an article in Bloomberg Law this week (paid subscription required for access), the Office of Federal Contract Compliance Programs filed a total of three lawsuits against employers during President Trump's entire four-year term in office. By contrast, the agency filed six lawsuits against employers in the last week of President Obama's second term. The word on the street is that the OFCCP will return to more Obama-like aggressive enforcement and litigation, with much less emphasis on voluntary compliance -- especially in the areas of hiring and pay equity.

Wage and Hour withdraws Trump opinion letters on independent contractors, tip-pooling. The first opinion letter, issued the day before the Inauguration, said that a transportation company was not the "employer" of its owner-operator drivers. Another letter, issued the same day, said that distributors for a food company were independent contractors rather than employees. Both opinion letters were based on the Trump DOL's final regulations on the employee versus independent contractor issue. Those regulations were frozen by the Biden Administration before they could take effect.

In its opinion letter on tip-pooling, issued on January 8, the Trump DOL said it was unable to determine "whether certain restaurant hosts and hostesses were eligible to participate in a tip pool." (I'm quoting from Bloomberg Law because the opinion letter is no longer available online.) The Trump Administration regulations on tip pooling are scheduled to take effect on March 1 but are currently "under review."

Dum-da-dum-dum.

NLRB has new Acting General Counsel -- and a legal challenge. Last week we discussed the unceremonious dismissal of President Trump's GC on the National Labor Relations Board, Peter Robb, and the Deputy GC. It is not clear that President Biden had the authority to discharge Mr. Robb before the end of his term in November. In any event, this past Tuesday, the President named an Acting General Counsel, Peter Sung Ohr, who has been with the NLRB since 1997 and most recently was General Counsel for Region 13 (Chicago). As GC for Region 13, Mr. Ohr ruled in 2014 that scholarship football players for Northwestern University were "employees" and were eligible to join a union. (The Board later declined to exercise jurisdiction over scholarship athletes at private universities.)

An Acting General Counsel for the Board may serve no more than 40 days unless the President nominates a General Counsel, so Mr. Ohr may not be in his new position for long.

One employer is already indirectly challenging the termination of Mr. Robb. H&M International Transportation, Inc., which is defending unfair labor practice charges, contends that the Office of the General Counsel has no authority to act in light of Mr. Robb's "unlawful removal." On Monday, an administrative law judge denied the employer's motion to dismiss the case on this ground, and now H&M is appealing that dismissal to the Board.

Similar challenges from employers are likely to follow.

"If I ask nicely, will you resign? If not, may I please kick your big, ugly keister out the door?"

The 1935 case of Humphrey's Executor v. United States, dealt with a member of the Federal Trade Commission who was appointed by Herbert Hoover and was asked to resign (twice) by Franklin Delano Roosevelt. Even though FDR asked nicely (twice), he fired Mr. Humphrey after the latter declined to resign a second time. The U.S. Supreme Court ruled that the President has limited power to dismiss executive officials in "quasi-judicial independent agencies." According to the motion filed this week by H&M, the same principles apply to the NLRB General Counsel. Therefore, "The General Counsel of the [NLRB] does not serve at the pleasure of the President, and cannot be remove[d] absent sufficient cause." H&M also contends that the President has no authority to name an Acting General Counsel under these circumstances.

Biden condemns xenophobia against Asian Americans and Pacific Islanders. OK, this one isn't bad news. The President issued a Memorandum on Tuesday condemning "racism, xenophobia, and intolerance" against Asian Americans and Pacific Islanders as a result of the COVID pandemic. The Memorandum is aimed at the government and health care providers rather than employers, but I do think it means that the EEOC may prioritize any charge that alleges discriminatory or harassing workplace behavior toward Asian Americans and Pacific Islanders -- especially if the behavior relates to the alleged place of origin of COVID.

"See you later, alligator!"


Much more next week, I am sure!

Image credits: Both pictures of President Biden from flickr, Creative Commons license: caricature of Joe Biden by DonkeyHotey, photo of Joe Biden by Gage Skidmore. Photo of Franklin D. Roosevelt in public domain.

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