News: How the EEOC could change under Trump

Monday, November 4, 2024

How the EEOC could change under Trump

Nov 04, 2024

With help from Nick Niedzwiadek

QUICK FIX

MUSICAL CHAIRS: The Equal Employment Opportunity Commission took a rightward shift under former President Donald Trump’s time in office, opting for structural changes that slowed the pace of litigation and pushed the commission away from some its work on gender identity discrimination.

Now with the commission locked under a Democratic majority until 2026 , experts weighed in on what a second Trump term would mean for an agency that has issued new guidance and regulations under Chair Charlotte Burrows, while facing a tougher litigation environment.

“I am sure we will continue to see attempts to roll that back, to minimize or do away with the guidance,” said Gaylynn Burroughs, vice president for education and justice at the National Women’s Law Center. “We might also see attempts to limit or hamstring the EEOC’s ability to enter into consent decrees, which are really important for making larger changes that impact a larger group of workers.”

Trump would likely appoint Commissioner Andrea Lucas as chair , much like he did when he named chairs Victoria Lipnic and Janet Dhillon. The changes likely wouldn’t amount to immediate seismic policy changes, but could allow Lucas to put a lid on the EEOC’s DEI efforts, which she has been especially critical of in light of the Supreme Court’s move to overturn affirmative action.

“While Andrea might not be able to make a lot of things happen right out of the box without a majority of votes, there are certainly things she could stop from happening,” said James Paretti, a former EEOC chief of staff who is now a shareholder at employment law firm Littler.

Lucas declined POLITICO’s request for comment, while Burrows did not respond.

A Republican chair on the commission also would accelerate the rulemaking headwinds agencies have faced after the high court's Loper Bright ruling — which overturned agencies' ability to interpret ambiguous statutes — by giving the GOP another firewall against its opposition to the EEOC’s implementation of the Pregnant Workers Fairness Act, a bipartisan bill that angered conservatives by designating abortion as a medical condition employers would be required to accommodate.

However, advocates of the PWFA plan to continue their litigation to support its abortion-related provisions no matter who wins Tuesday’s election.

“That was the intent of the law, and that is something that we're focused on ensuring is a reality,” Burroughs said.

Lawrence has more for Pro subscribers.

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AROUND THE AGENCIES

TIMING IS EVERYTHING: A Trump administration official is staring down potentially tens of thousands of dollars in fines for not properly filing a financial disclosure after he left the Federal Labor Relations Authority.

The Justice Department has asked a federal judge in D.C. to penalize James Abbott “at least” $40,000 for not filing the required paperwork until the day that the case was filed against him in mid-2023 — more than a year after he left FLRA.

Prosecutors say that Abbott, a career government official who specialized in ethics compliance, knowingly blew off multiple reminders and extensions.

In a filing last week, Abbott’s lawyer asked the judge either to not impose a penalty or make it “de minimis,” claiming that the delay was out of his hands.

Abbott says that Democratic FLRA Chair Ernest DuBester had access to his work computer and files cut off, and that he missed key reminders sent to his home because he was staying away at the time following an assault from a former employee.

A FLRA spokesperson declined to comment on Abbott’s allegations, and his attorney did not respond to a request for comment.

Abbott’s case, while under-the-radar, is among those whose outcomes may hinge on Tuesday’s elections as a Trump DOJ could buy his argument that he is being unfairly targeted and drop the matter.

ON SECOND THOUGHT: The Bureau of Labor Statistics announced in last week’s job report that it is walking back its decision to cut the sample size of its household survey thanks to funding from Congress in its recent stopgap funding bill, Bloomberg reported.

BLS Commissioner Erika McEntarfer announced in June that the survey would reduce its sample size by 5,000 households to 55,000 total due to increasing survey costs amid declining response rates.

More agency news: "NLRB hits Apple with unfair labor practice complaint," from our Lawrence Ukenye for Pro subscribers.

ELECTION 2024

STILL NOT SOLD: Despite President Joe Biden’s effort to cast himself as a pro-union president, union members are still skeptical of his record as president, along with Vice President Kamala Harris’ and Trump’s push to make inroads among organized labor.

What they’re saying: “I don’t think anyone is pro-union,” Karen, a 65-year-old retired teacher who did not want her last name used, told POLITICO after a retired electrician knocked on her door recently in Pittsburgh. “It’s up to us. The workers have to make our voices heard.”

Some members also cited concerns about Harris’ immigration record and inflation as reasons for not backing her.

On the trail: Despite unions’ concerns about the vice president, Harris has focused her recent messaging on courting Republicans and wealthy donors in recent weeks.

Our Brittany Gibson, Meredith Lee Hill and Adam Cancryn have more.

More from the union halls: " Far from the race he once envisioned, Joe Biden closes out contest in Scranton," from our Adam Cancryn.

ELON’S WISH LIST: Trump’s wealthiest backer has his eyes on organized labor if he’s able to play a role in the former president’s administration, our Derek Robertson reported.

After telling The New York Times that he disagrees “with the idea of unions”, the Tesla CEO has become a foe of organized labor, including United Auto Workers, which filed an unfair labor practice charge against Musk earlier this year.

Tesla workers have also filed complaints with the National Labor Relations Board alleging that they were illegally fired for unionizing.

More election news: "Meet the Trump loyalists prepping for aggressive policy action on Day 1," from POLITICO.

Even more: "Why business leaders are worried about JD Vance," from our Hailey Fuchs and Sam Sutton.

IN THE STATES

MINIMUM WAGE ON THE BALLOT: Voters in several states could approve minimum wage increases and other labor provisions as progress on hiking the federal minimum wage stalls.

Here are some key ballot measures Shift is keeping an eye on.

— Massachusetts’ Question 5 will allow tipped workers to earn $15/hour, an uptick from the current $6.75 minimum.

— California Proposition 32 would raise the state’s pay floor to $18 for employers with 26 or more employees.

— A package of labor-related provisions in Alaska would increase the minimum wage to $15 by 2027 and prohibit companies from punishing workers who choose not to attend captive audience meetings.

Read our full breakdown of state ballot measures here.

RACE TO WATCH: The race for North Carolina labor commissioner has shaped up to be a battleground over the Occupational Safety and Health Administration’s proposed heat safety rules.

Democrat Braxton Winston who has campaigned on a stronger version of the Biden administration’s proposed heat rules, while Republican Luke Farley, a construction industry attorney who helps companies defend against worker safety lawsuits, opposes the regulations.

Here’s a deeper look at the race from POLITICO's E&E News.

More states news: "Potato-packing workers trafficked from Mexico to San Luis Valley in forced-labor scheme, lawsuit alleges," from The Denver Post.

Unions

THE HAND YOU’RE DEALT: The National Labor Relations Act is flawed but proponents risk underestimating its power, according to a new paper from the left-leaning Roosevelt Institute.

“There is this long term skepticism about the law and I fear it sometimes turns into legal essentialism that the law is always going to be against them,” said Diana Reddy, the report’s author. “And I think that’s counterproductive.”

Reddy points to the National Labor Relations Board’s Cemex decision and General Counsel Jennifer Abruzzo’s aggressive approach as evidence that federal labor law can meaningfully benefit workers, even as she says it is underfunded and constrained.

“There has been such political gridlock when it comes to labor policy, and we shouldn’t just accept that,” she said.

ABOUT THAT TIME: Contract negotiations between freight rail operators and their battery of union workers have officially begun, after Washington intervened to block a strike in 2022.

The Railway Labor Conference, the group that negotiates on behalf of employers, said Friday it exchanged Section 6 notices, the first step in the Byzantine process set out under the Railway Labor Act.

Since 2022, the companies and unions have been striking additional deals regarding paid sick leave and other issues that were some of the biggest barriers last time — raising hope that the process could be smoother this go-around.

In the Workplace

PAY TRANSPARENCY: Lyft agreed last week to pay $2.1 million in civil penalties after resolving allegations brought forth by the Justice Department and Federal Trade Commission that the rideshare company made false and misleading statements about how much drivers on the platform would earn.

The agencies’ complaint says that Lyft advertisements that included hourly rates that drivers could make did not disclose that the figures were based on earnings from the top 20 percent of its drivers.

"We agreed to take steps to ensure that what we say about driver earnings in our advertising is clear," the company wrote in a blog post outlining pay transparency efforts.

WHAT WE'RE READING

— "‘I Think It Will Happen Again if Trump Is the President’: The Ongoing Trauma of Family Separation," from our Myah Ward.

— "Is the Labor Movement Screwed No Matter Who Wins the Election?," from The New Yorker.

— "But their emails: Federal employees’ communications swept up in conservatives’ dragnet," from POLITCO's E&E News.

THAT’S YOUR SHIFT!

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