It’s an election year. Be careful out there.
“A long time ago, in a galaxy far, far away,” I represented labor unions. Actually, it was more like 30+ years ago and a few miles down I-85 in Atlanta.
Just like that opening crawl from the original Star Wars movie, that long-ago experience provides the back story for this bulletin.
In years when the president of a union that I represented was running for reelection, I arbitrated more cases than in non-election years. A lot more.
Although my explanations for the uptick included things like more face time for the incumbent and a display of solidarity with the members, all were linked to one thing: The election.
Unless you’ve been on a desert island, you know we are entering an election year for control of the federal government. (Based on what we have seen so far from all sides, you might be wishing you were on that island.)
My experience teaches me that between now and November 2024 employers should expect increased activity by the federal agencies responsible for enforcing our nation’s labor and employment laws.
The latest data support that expectation.
The EEOC is suing employers at a greater rate than in the past
According a recent press release from the U.S. Equal Employment Opportunity Commission, the agency filed 50 percent more discrimination lawsuits against employers in fiscal year 2023 than it did in fiscal year 2022. That included 25 lawsuits alleging systemic discrimination (almost double the number filed in each of the past three fiscal years), 32 class actions, and 86 lawsuits on behalf of individuals.
During the two months since that press release, it has not been unusual for me to see reports of four or five lawsuits being filed in one week by the EEOC against employers. Like the numbers above, they include a smorgasbord of class and individual actions alleging a wide range of discriminatory conduct by employers.
The EEOC has been equally busy on the regulatory front. As my colleague Robin Shea has reported, the agency has issued proposed enforcement guidance on harassment in the workplace. In its recently released fall regulatory agenda, one of the EEOC’s priorities is to finalize its proposed regulations for implementing the Pregnant Workers Fairness Act.
It’s not just the EEOC
As my colleagues have been reporting, throughout 2023 the National Labor Relations Board overruled multiple decisions issued by the Trump-era Board. In doing so, it expanded the rights of employees and increased the burdens on employers. Here are some of the more notable examples:
- In Lion Elastomers LLC II, the Board overruled a Trump-era decision and made it more difficult for employers to defend the discipline of employees for engaging in misconduct, like offensive or abusive behavior, that occurs in the course of protected concerted activity.
- In Stericycle, Inc., the Board overturned another Trump-era decision and held that any employer workplace rule that could reasonably be interpreted by an employee as restricting or interfering with any sort of rights protected by the National Labor Relations Act is presumptively unlawful. Even if a more reasonable interpretation of the rule exists, and even if there is no evidence that the rule caused any interference.
- In The Atlanta Opera, Inc., the Board returned to the pre-Trump-era standard for determining independent contractor status. Needless to say, the decision makes it more difficult for an employer to classify someone as an independent contractor
Since the General Counsel of the NLRB has said that she will do everything in her power to enforce the rights that she believes employees have under the NLRA, there is no reason to think that these reversals will abate.
The U.S. Department of Labor has been equally aggressive in enforcing the Fair Labor Standards Act. During fiscal year 2023, the agency recovered more than $300M in back wages for more than 200,000 employees. According to the DOL, this resulted in the highest per-person recovery since 2009.
On the regulatory front, the DOL’s agenda continues to include revamping its rules regarding exempt and independent contractor status, both of which would result in substantial costs for employers.
They’re even arresting people now
In the past month, the DOL and the NLRB have secured the arrests of business owners for failure to comply with their obligations. Yup. A trip to the pokey.
In 45+ years of doing this, I have never heard of an employer being incarcerated for a labor law violation.
In one case, a judge in Michigan approved the arrest of a business owner for ignoring a court order to turn over records subpoenaed by the DOL. In another, a federal appeals court ordered U.S. Marshals to take the owners of a business into custody for refusing to comply with an NLRB order.
I hope that we do not represent any employer who would willfully ignore a court or Board order. That said, be warned. In the current climate, the NLRB and the DOL are willing to take the extraordinary step of asking the courts to put some recalcitrant employers in jail.
May The Force be with you
Whether it has been prompted by an effort to appeal to a Democratic base, a desire to complete an agenda before a possible change in administration, or just something in the water North of the Potomac, light sabers have been drawn. As Yoda might say, “Patience you must have, my young Padawan.”
I suggest that you look both ways before taking action on any “hot button” issues and do your best to stay under the radar.