Major Change of Direction at NLRB, “New Focus” at the EEOC

1.? What’s Happening (or Not) at the National Labor Relations Board????????

The Trump Administration’s expedited restructuring of the federal administrative agencies – and the laws and regulations they administer – is brought into sharp relief with combination of the dismissal of the Labor Board Chair, Gwynne Wilcox, the deletion of the Biden Board’s various “pro-union” agenda and policies, and the shrinkage of the Board’s members from five to two.? Wilcox has taken her dismissal to court, alleging that Trump had no authority to can her before her term expires, and the new Board, now down to two members has no authority to act, and will need at least one more new member for a quorum. ?

The outcome of the Wilcox suit may be determined by how former special counsel Hampton Dellinger’s case is decided by the Supreme Court.? He was fired from the U.S. Office of Special Counsel with disregard of his legal protection from arbitrary dismissal before his term expired, a protection similar to the one claimed by Wilcox.? If the lower courts’ rulings in his favor are upheld, and the Court rejects Trump’s argument that the protections violate the separation of powers, Wilcox would have a legal right to return to the Board and complete her term.

In the meantime, all of the progressive Board policies (that generally reversed Board rules that were instituted during the first Trump Administration) adopted by the Biden Board General Counsel are kaput, including but not limited to:

1.????? Adopting as a rule that when “captive audience” speeches are made by employers during union organizing campaigns, the requirement that all employees attend such presentations or be disciplined, is illegal.

2.????? Aggressively pursuing unfair labor practice charge cases based on non-competition provisions, non-solicitation provisions, provisions for claw back of training and other employer expenses, and non-disparagement or confidentiality provisions in various agreements.

3.????? Challenges to the employer use of electronic monitoring and algorithms for employee control. The challenges would allege that the use of this technology interferes with employees’ Section 7 rights.

4.????? Pursuing (for the first time at the NLRB) broad remedies analogous to civil damages under NLRB orders and settlements in unfair labor practice cases.

5.????? Advocating “employee” status for college athletes at private (non-public) institutions.

6.????? Pushing the?Cemex?standard, which was adopted to require employers who commit unfair labor practices to bargain with unions even when no employees voted for the union.

As a result – generally speaking - any unfair labor practice charge brought by an employee or union that relies on these doomed Board interpretations will fail, and any ULP charge brought by an employer against a union that relies on these interpretations will succeed.? However, if the Supreme Court sides with Dellinger in his appeal, and Wilcox resumes her role as Chair, this course correction may be postponed.? There would then be two Democrats and one Republican, establishing a quorum.

In her case Wilcox has argued that the uncertainty created by an abrupt interruption of her statutory term – what critics of the “shake-up” of the federal agency leadership call chaos – is one of the reasons Congress created the terms of service in the first place and the accompanying norms that have existed at the Board since it was created ninety years ago.?

The statutory fixed term was designed to assure a fluid balance of Democrats and Republicans on the Board ---- one that would shift back and forth every four years to give the "other side" the opportunity to re-direct the application of the law.

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2.???????? Trump EEOC Shifts Gears on National Origin Discrimination

The Acting Chair of the Equal Employment Opportunity Commission, Andrea Lucas, has announced (on the day she was confirmed) that she is prioritizing the protection of American workers from “anti-American” national origin discrimination.? She is frustrated with American employers that have various “excuses” for cultivating preferences for non-American workers:? 1) they work for less money, 2) ?they are easier to manipulate and therefore easier to exploit, 3) they are utilized by employment placement services based on customer preferences, and 4) their employers have “biased productivity perceptions” leading them to hold the unfounded belief that foreigners are better workers. Her announcement does not refer to sources that have documented these excuses.

In any event with those factors listed, one would have thought that she was merely going to reaffirm the agency’s commitment to protecting all workers’ rights, including undocumented and documented immigrants.? But not so, and her unprecedented approach to Title VII enforcement also appears on Lucas’s EEOC webpage: “…. [Lucas] prioritizes evenhanded enforcement of civil rights laws for all Americans, including by rooting out unlawful DEI-motivated race and sex discrimination; protecting American workers from anti-American national origin discrimination; defending the biological and binary reality of sex and related rights, including women’s rights to single-sex spaces…” ?

Throughout its enforcement history the Commission has recognized the right of undocumented workers to be free from illegal discrimination: On the EEOC website in 2002, for example, Chair Dominguez reinforced “..the settled principle that undocumented workers are covered by the federal employment discrimination statutes and that it is as illegal for employers to discriminate against them as it is to discriminate against individuals authorized to work. When enforcing these laws, EEOC will not, on its own initiative, inquire into a worker's immigration status. Nor will EEOC consider an individual's immigration status when examining the underlying merits of a charge. The Commission will continue vigorously to pursue charges filed by any worker covered by the federal employment discrimination laws, including charges brought by undocumented workers…”?

Lucas’s new, regressive approach purports to coincide with an EEOC settlement this month involving LeoPalace Guam Corporation, a Guam-based resort that was charged with national origin discrimination and agreed to pay over $1.4 million to resolve the charge.? The allegation was that workers from Japan at the resort had for years been paid more than non-Japanese employees for performing the same tasks. Presumably the EEOC posted this item to make the point about immigrants, but the Guam employer had brought in Japanese workers and had tried to defend its practices under a US-Japan treaty, then opted to settle. No illegal immigrants in this case.

The Commission's "new" focus on discriminatory hiring and compensation against American citizens is a showing of alignment with the current Administration attitude toward illegal immigration. Lucas is creating a protected class of “American”, but this national origin already exists in the statute.? Chair Lucas left out any considered reasoning why the EEOC should do a 180 degree turn and dispense with the rights of undocumented workers, those working in the US legally, and immigrants who have become nationalized citizens. Ideology is insufficient.

Another problem is that in its zeal to get in alignment with the new Administration’s concerns, the EEOC overlooks the fact that an “American worker” has been protected from national origin discrimination under Title VII since 1964, when the law was enacted.? Title VII (logically) has almost never been interpreted by the courts or the EEOC to find discrimination merely because an employer has preferred to hire a more qualified applicant who happens to be an immigrant or visa holder.?

Going forward, how will the EEOC find some hitherto concealed national origin discrimination in the agricultural, food service, and construction industries, where it has been the subject of charges, investigation, and adjudication in the courts, for sixty years?? Or rather, where it has been charged and investigated and found not to exist, for sixty years?

The Commission over the decades has interpreted Title VII in ways that are very difficult to accept. It has repeatedly gone too far. But this time around the agency is cracking down on something that has already been through the sausage machine.

In a way the Trump EEOC Chair is using her megaphone the same way her predecessors did. A bold new mission, sort of like a strategic plan, with the full weight of the regional and district offices behind her.? And eventually, much to show for it will be very unlikely

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