You’re Hired! How Trump’s EEOC and NLRB appointments may impact your business
In just his first week in office, President Donald Trump, through two new appointments, has initiated an ideology shift at the Equal Employment Opportunity Commission and the National Labor Relations Board. Republicans Victoria Lipnic and Philip A. Miscimarra were appointed as acting chairpersons for the EEOC and NLRB, respectively. Both Lipnic and Miscimarra were appointed to the EEOC and NLRB under President Obama’s tenure, however all signs point to more employer-friendly employment regulations than their left-leaning predecessors.
Lipnic’s voting record since being appointed as an EEOC commissioner in 2010 has sometimes crossed party lines, but overall has shown a preference for less regulation. Specifically, Lipnic’s public disdain for the controversial revisions of the annual Employment Information Report (EE0-1) set to go into effect in March of 2018 is indicative of Lipnic’s future plans as acting chair of the EEOC. In September of last year, Lipnic voted against the proposal that requires employers to submit detailed pay data categorized by gender, race and ethnicity as a means of combating pay discrimination. Lipnic spoke out publicly against this proposed regulation, saying that it “should be relegated to the heap of bad policy ideas once and for all” and that instead, focus should be placed on the predominant reasons for the pay gap.
With Lipnic at the helm, the future of this EEOC rule, and other regulations promulgated by the EEOC, is unclear. Notably, Lipnic worked as a management-side attorney before entering government service and previously served as assistant secretary of labor for employment standards under President George W. Bush.
Similarly, Miscimarra, the sole Republican on the NLRB’s five-member board, has clashed with his fellow board members on critical employment law issues. He was a vocal critic of the NLRB’s 2015 Browning-Ferris Industries ruling, which loosened the standards for joint-employer liability, effectively exposing more businesses to lawsuits (this decision is currently on appeal before the D.C. Circuit). Miscimarra also vehemently opposed the NLRB’s 2012 D.R. Horton decision that rendered class-action waivers in employment agreements illegal (several courts have since refused to follow D.R. Horton).
Like Lipnic, Miscimarra also worked as a management-side attorney before entering the public sector. This, coupled with his voting track record as a board member, indicates that Miscimarra will likely continue in his stand against over-regulation of businesses as acting chairman of the NLRB.
These appointments are the first step in the Trump Administration’s goal toward a Republican-controlled EEOC and NLRB. We can expect to see more appointments like Lipnic and Miscimarra in the near future and, more importantly, employers can anticipate more business-friendly rules and regulations from these governing entities.
Victoria (“Torie”) Finlinson is an associate attorney with Clyde Snow & Sessions. She focuses her practice on complex civil and commercial litigation. In addition to her litigation of employment and business matters, Finlinson’s areas of expertise include bankruptcy, eminent domain and medical malpractice defense. She has extensive experience in mediation and trial.