The National Labor Relations Board’s New Rule Under Scrutiny
The fate of the National Labor Relations Board’s (NLRB) recent rule that alters the criteria for determining joint employers of the same workers hinges on Congressional action and a potential veto by President Joe Biden. Should Congress pass a Congressional Review Act (CRA) resolution disapproving of the NLRB’s joint employer regulation, it could not only nullify the rule but also potentially reinstate the more business-friendly Trump-era standard indefinitely. However, a likely Biden veto of the CRA resolution would complicate this scenario, as many Democratic lawmakers would need to turn against the NLRB to override the veto.
Congressional Review Act and Its Implications
The CRA is a critical factor in this equation, with Senators Joe Manchin and Bill Cassidy pledging to use the CRA to reverse the NLRB’s rule. Additionally, Senator Kyrsten Sinema has expressed support for this course of action. The potential for the joint employer test to remain in its 2020 form arises from the CRA’s provision that prohibits agencies from issuing rules that are “substantially the same” as the regulations they replace.
David Super, an administrative law professor at Georgetown University, explained this provision as Congress warning agencies not to persist with their agendas. The NLRB’s policy options for its joint employer test, determining shared liability for labor law violations and obligations to bargain with unions, have historically been limited. In 2015, the Obama-era board expanded the standard to consider indirect and unexercised control, but in 2020, an all-Republican NLRB narrowed the test, effectively returning it to the 2015 Browning-Ferris standard.
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Implications of a CRA Resolution and Potential NLRB Response
If a CRA resolution is passed, and President Biden refrains from vetoing it, the NLRB would revert to the direct-control test, making it unlikely to issue a rule accounting for indirect and unexercised control. However, the NLRB could attempt to rescind the Trump-era rule, which would effectively reinstate a Browning-Ferris test. This raises questions about whether the CRA applies to regulations or standards set through case adjudication.
Bridget Dooling, an administrative law professor at Ohio State University, argued that the CRA primarily applies to regulations, not standards developed through individual case decisions. Consequently, it may be up to Congress to decide, given the law’s prohibition on judicial review. Courts have generally interpreted this provision to mean that they cannot hear claims alleging agency failure to comply with the CRA.
Depending on its partisan composition, Congress could take actions such as funding cuts, budget riders, oversight hearings, or another CRA resolution if it believes the NLRB exceeded its authority. Ultimately, much depends on whether Congress passes the CRA resolution and if President Biden chooses to veto it.
Proposed EEOC Harassment Guidance and the Controversy Surrounding It
Comments Flood In on the EEOC’s Draft Enforcement Guidance
The U.S. Equal Employment Opportunity Commission (EEOC) recently released its long-awaited draft enforcement guidance addressing workplace harassment, attracting over 37,000 comments. The proposed guidance, released on September 29, includes comprehensive protections for LGBTQ+ workers, encompassing actions from assault to misgendering and ensuring access to facilities aligned with their gender identity.
Legal Challenges and Concerns
However, these measures have stirred controversy, with state attorneys general expressing concerns that the EEOC is overstepping its statutory authority and violating Title VII of the Civil Rights Act of 1964. Notably, over 14,000 of the more than 37,000 comments focused on the mention of pronouns, with some commenters raising religious and First Amendment concerns.
Furthermore, over 13,500 comments reflected language drafted by FRC Action, the legislative branch of the pro-life nonprofit organization the Family Research Council. This language expresses concerns about the guidance’s impact on free speech and its implications for sex-segregated spaces in the workplace. Critics contend that forcing employers to permit individuals to use facilities in line with their gender identity endangers female employees and infringes on employers’ conscience rights.
Potential Legal Challenges and Uncertainties
This dispute over the EEOC’s guidance could lead to legal challenges in the future, as it has previously in the context of LGBTQ+ worker protections. Although the commission unanimously approved the 2017 proposed enforcement guidance, it was held up during the Trump administration due to internal disagreements. The EEOC also issued a technical assistance document on LGBTQ+ workplace discrimination protections, later vacated by a federal judge in Texas.
Given the recent Supreme Court decision in Bostock v. Clayton County, which declared workplace discrimination based on sexual orientation and gender identity illegal, it remains uncertain whether this ruling will shield the guidance from potential litigation. The future of the EEOC’s proposed harassment guidance is still uncertain as legal and political challenges continue to unfold.
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