United States: EEO-1 Appeal (Beltway Buzz, May 10, 2019)

Last Updated: May 14 2019
Article by James J. Plunkett

EEO-1 Appeal. Late last week, the U.S. Department of Justice filed an appeal in the case that restarted the Equal Employment Opportunity Commission's (EEOC) 2016 EEO-1 wage reporting scheme. The government appealed both the U.S. District Court for the District of Columbia's March 4, 2019, order (which resuscitated the scheme) and its April 25, 2019, order (setting forth the terms of compliance). However, the EEOC was quick to notify the public that "[t]he filing of this Notice of Appeal does not stay the district court orders or alter EEO-1 filers' obligations to submit Component 2 data. EEO-1 filers should begin preparing to submit Component 2 data."

EEOC Quorum Restored. Speaking of the EEOC, on May 8, 2019, the U.S. Senate confirmed Janet Dhillon as chair of the Commission. Dhillon—who has both private-sector in-house and law firm credentials—gives the Commission a functioning quorum for the first time since very early this year, meaning that the EEOC can now lawfully engage in policymaking (though this opportunity could be fleeting, as Commissioner Charlotte Burrows' term expires on July 1, 2019). This also marks the first time in nearly 10 years that Republicans have enjoyed a majority at the Commission.

But lest you think Dhillon's arrival will allow the Commission to halt the restarted EEO-1 reporting train, think again. Recall that the district court's March 4, 2019, decision faulted the Office of Management and Budget for insufficient process when it paused the information collection in 2017. Similarly, there likely is not enough time between now and the September 30, 2019, reporting deadline for the EEOC to implement a review process that would satisfy the arbitrary and capricious standards of the Administrative Procedure Act (APA) (yes, the EEO-1 form was changed in 2016 using the Paperwork Reduction Act of 1980 and not the APA, but this is where we are now). However, Dhillon's position on the Commission is the first step in laying the groundwork for the Commission to potentially review the information collection in the future.

Labor Hearing. On May 8, 2019, U.S. House Democrats held a hearing on the Protecting the Right to Organize Act of 2019 (PRO Act). Among other provisions, the PRO Act would:

  • codify the National Labor Relations Board's (NLRB) 2015 joint-employer expansion;
  • prohibit employers from permanently replacing strikers;
  • allow for secondary boycotts;
  • require binding arbitration for first contracts;
  • overturn Epic Systems;
  • restore and codify the Board's failed "notice posting" requirement;
  • allow for new civil penalties, including liquidated damages, and reverse Hoffman Plastic Compounds;
  • prohibit right-to-work laws; and
  • codify the 2016 " persuader regulation."

Testifying in favor of the PRO Act were AFL–CIO President Richard L. Trumka and former NLRB chair Mark Gaston Pearce. That the Democrats brought out the heavy hitters for this hearing indicates the seriousness with which they take this bill. Not surprisingly, the business community has already expressed its strong opposition to the PRO Act.

H-2B Visa Cap Relief. On May 8, 2019, the Department of Homeland Security and the U.S. Department of Labor published a temporary rule that allows for the issuance of an additional 30,000 H-2B nonimmigrant visas for the remainder of the fiscal year (i.e., through September 2019). Pursuant to the rule, these additional visas are available only to employers that can demonstrate "irreparable harm" and only for workers who have been issued an H-2B visa in one of the last three fiscal years.

A Prestigious Club. They say that in the United States, you can indict a ham sandwich. But did you know that you can also debate a sandwich in Congress? This week back in 1930, members of the House of Representatives engaged in a debate over the House Restaurant's funding request, and Massachusetts representative Charles Underhill brought a triple-decker club sandwich to the House floor to help argue in favor of the funding. A debate subsequently ensued over the merits of club sandwiches, ham sandwiches, and New England boiled dinners. While the Buzz hasn't been able to determine whether the House Restaurant's funding request was met, we can confirm that the restaurant is still in existence today. And though such debates may seem stale, or otherwise reserved for the upper crust of society, lettuce assure you that they are necessary to a functioning government—no matter how you slice it.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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