Acosta and Lipnic Share DOL and EEOC Priorities
Author: Robert S. Teachout, XpertHR Legal Editor
October 18, 2017
WASHINGTON, DC - The priority for the US Department of Labor (DOL) is "jobs, jobs and even more jobs," Secretary of Labor Alexander Acosta told an assembly of in-house counsel today. Also addressing the group, the acting chair of the Equal Employment Opportunity Commission (EEOC), Commissioner Victoria Lipnic, said the EEOC needs to change course on pursuing systemic lawsuits and touted the agency's success in reducing its backlog of charges.
Acosta and Lipnic spoke at a presentation on employment and labor law regulations during the Association of Corporate Counsel's annual meeting in Washington, DC.
DOL is focusing its efforts on reviewing rules issued during the Obama administration and rolling back those that Acosta characterized as "executive overreach." Acosta criticized the previous administration's overuse of guidance instead of rules to change labor policy. This deprives the public of the opportunity to submit their comments and concerns, and creates an environment of regulatory uncertainty, he said. "Regulatory stability and adherence to the law contribute to a pro-growth economy," Acosta said. "Businesses should know what the law requires of them." That certainty encourages businesses to create more jobs, he said.
One priority for DOL review is the overtime rule, which, Acosta noted, was struck down by a federal court. The comment period for the DOL's request for information on crafting a replacement overtime rule recently ended. DOL also has issued a notice of proposed rulemaking (NPRM) to officially rescind the "Persuader Rule." The rule requiring law firms to publicly disclose any work they do for employers surrounding unionization efforts was permanently enjoined by a federal court in 2016. The DOL also has delayed the implementation of its fiduciary rule a second time, from January 1, 2018, until July 1, 2019, for further study.
Acosta also pointed out new efforts by the Trump administration to create jobs and provide greater access to health care group plans for employees of small businesses. Recently the administration issued an Executive Order and launched a new Task Force on Apprenticeships to focus on developing training programs to reducing the nation's skills gap. Another executive order allows small businesses to join together to purchase Association Health Plans. Acosta also stated that the president's new tax proposal "is about job creation" through freeing up resources for employers to hire more employees.
In her opening remarks, Lipnic reminded the audience that changes at the EEOC are subject to a vote and that currently she is the only Republican commissioner. There is one vacancy, and former Chair Jenny Yang, whose term expired in July, is continuing to serve until her replacement is confirmed. Lipnic noted that Janet Dhillon and Daniel Gade, Trump's nominees to the agency, are expected to be confirmed by the full Senate soon. "Once they get [on the Commission], we'll have to see how things change as far as a policy direction." (Dhillon and Gade were approved by the Senate Health, Education, Labor and Pensions Committee later this morning and reported to the full Senate.)
Lipnic highlighted the EEOC's achievement of reducing its backlog of charges to the lowest level in 10 years. She also noted that there were 184 new merit lawsuits filed by the agency last year, with disability and sex-based claims comprising the two largest categories of suits, and retaliation claims continuing to be a high source of claims. Of the 184 suits, 30 were based on charges of systemic violations.
Lipnic stated that when she started as acting chair, she thought the agency "might need a bit of a course change in terms of the systemic program." "Trying to take everything on, on a big nationwide basis, is difficult for the agency," she said, in terms of available resources and ability to litigate, so newer systemic cases are more narrowly tailored.
In follow-up questions, Lipnic commented on the Harvey Weinstein sexual harassment headlines and the strange situation of the US Department of Justice taking an opposing view to the EEOC's guidance on Title VII coverage of sex discrimination for LGBT employees. Lipnic stated that sex harassment is not new and "it is every day, everywhere." She also reminded the attendees that the EEOC issued a study on sex harassment in 2016 and told them that EEOC rolled out new sex harassment training for employees. As for the issue of LGBT protection by Title VII, Lipnic said she believes it will end up in the Supreme Court and "I hope it does."