ECN attorneys hear from top agency leaders in D.C.

April 2013

Alexandria, Virginia—The Employers Counsel Network (ECN), a group of attorneys from all 50 states, Washington, D.C., and Canada who specialize in employment law matters, met April 24-26 to learn about the latest developments from Congress and the Obama administration that are of importance to employers.

National Labor Relations Board (NLRB) Acting General Counsel Lafe Solomon spoke candidly with the group about the effects of the Noel Canningdecision, in which the U.S. Court of Appeals for the DC Circuit held that the January 4, 2012, recess appointments of three members to the Board were invalid. He said the biggest threat the decision poses to the Board is the argument that all complaints under the recess appointments are invalid, even if the rule the complaint was issued under is “decades old.”

Solomon also revealed that he has asked the Board to reverse the Register Guard decision,which allows employers to restrict pro-union use of company e-mail systems, giving them basic property rights to regulate and restrict employee use of those systems.He admitted that he is aware of the turmoil a reversal could cause employers, but noted that he feels obligated to pursue what he thinks is right. He promised that the Board would try to be open and transparent so that there aren’t big surprises.

Equal Employment Opportunity Commission (EEOC) Commissioner Victoria Lipnic gave the ECN attorneys an inside look at what is happening at the agency. She acknowledged that the agency has lost some major cases recently and said she is a proponent of having the full Commission review more cases because she believes that would eliminate some of the bad practices that led to the recent court losses.

Specifically, Lipnic mentioned that the EEOC is reexamining what must be done before a case (pre-suit obligations) when identifying members of a class and deciding what is “good faith.” She said the agency’s newest Strategic Enforcement Plan calls for it to develop a quality control plan to establish more criteria for how investigations are conducted.

David Fortney of Fortney & Scott, LLC, Washington, D.C., spoke about enforcement initiatives at the Office of Federal Contract Compliance Programs (OFCCP). Citing several examples of President Barack Obama making high-profile public statements about the disparity in pay between men and women, Fortney told the group to expect to see more Equal Pay Act (EPA) cases in the future.

Fortney, the editor of Federal Employment Law Insider, also warned that the OFCCP is no longer looking at similarly situated groups to determine when discrimination has occurred. Instead, it has created the term “pay analysis groups,” which Fortney noted could be broad enough to include all of an organization’s exempt employees. That, in turn, could lead to a CEO’s salary being compared to that of his administrative assistant. Fortney also predicted that healthcare institutions will soon face an onslaught of activity from the OFCCP.

VP of SHRM Government Affairs Michael P. Aitken gave the ECN group an overview of how public policy as it relates to HR will be affected by the relationship between President Obama and the 113thCongress. He noted that aggressive gerrymandering has created districts that aren’t diverse, so there’s no real incentive “to concede points to ‘the other side.’”This is the cause of the divisivenesswe see in Congress.

Looking forward, Aitken predicted that the federal budget deficit/debt (and the interest on that debt) will have a bigger effect on the economy than the “Great Recession.” He also expects a “technical amendments bill” to healthcare reform, possibly as part of a tax package in late 2013 or early 2014 to address problems that will arise. He doesn’t think there’s a chance that Congress will compromise on Obama’s NLRB nominations. He does believe that a federal minimum wage hike will be pushed through–if not by the end of the current 113thCongress, then sometime in the 114thCongress.

Turning to immigration, Aitken said that Immigration and Customs Enforcement is going after employers for things we haven’t seen in a while. For example, the agency is being particularly hard on paperwork violations. He discussed several problems with the current E-Verify system and proposed “photo tool,” as well as the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013.

Laura Seeman, Division Chief, Field Operations, Office of the Whistleblower Protection Program, Department of Labor Occupational Safety, told the group that Congress has been asked to approve a $5.9 million increase in whistleblower enforcement to help handle the rising number of complaints. She noted that since 2005, there have been 10 new whistleblower statutes added to the book, which helps account for the almost 40% increase in complaints.

Seeman detailed an early intervention pilot program being tested in two regions (Region 5—Chicago and Region 9—California). She also urged employers’ attorneys to let the OSHA investigator know if they think there is a reason to settle. Her advice for attorneys involved with a whistleblower investigation is, “Don’t hound the investigator, but do develop a relationship.”