ReedGroup’s VP of Compliance goes to Washington:
Sits on panel with Labor Secretary, Hon. Alexander Acosta and EEOC’s Acting Chair Victoria Lipnic
Last week I was honored to participate on a panel with the U.S. Equal Employment Opportunity Commission’s (EEOC) Acting Chair, Victoria Lipnic, the U.S. Department of Labor (DOL) Secretary Alex Acosta, and Hal Coxson, shareholder at the law firm Ogletree Deakins, moderated by Kevin McGowan from Bloomberg Law. The Association of Corporate Counsel’s annual meeting, held in Washington, D.C. on Oct. 18, dedicated one day of the conference to all things regulatory; this panel was the employment and labor law regulatory portion of the day. As an attorney dedicated to ensuring compliance with the DOL’s Family and Medical Leave Act (FMLA) and Employee Retirement Income Security Act (ERISA) disability regulations, as well as compliance with the EEOC’s Americans with Disabilities Act (ADA) regulations, it was a professional honor for me to be on stage with the leaders of these enforcing agencies.
The panel included a compelling discussion of the state of each agency and the National Labor Relations Board (NLRB). Based on the dialogue, in the coming years, employers can anticipate a more supportive regulatory regime from the DOL and potentially favorable decisions from the NLRB. Of course, the EEOC remains committed to enforcing civil rights laws. In terms of priorities, until the full commission is seated, those remain to be seen. While employers wait for the new administration’s changing of the guard for the DOL, EEOC, and NLRB, the panel discussed how state laws keep employers on their toes when it comes to employment law compliance. And, even with the projected employer-friendly federal enforcing agencies, we anticipate that state and local laws will continue to push employment laws in new directions.
Read on for more details about the panel remarks, including Secretary Acosta and Acting Chair Lipnic’s updates on each of their respective agencies:
Secretary Acosta began his remarks by assuring the audience that under his leadership, the DOL will be deliberative and seek information and comments when it comes to DOL regulations. Acosta’s preference for notices of proposed rulemaking (NPRM) and requests for information (RFI) is already clearly evident given the recent rulemaking notices and requests for information regarding the overtime rules and ERISA, both with the fiduciary and disability claims administration final rule. He assured the audience that the DOL will act quickly pursuant to last week’s Executive Order from President Trump directing the Departments of Labor, Health and Human Services, and Treasury to address components of the Affordable Care Act (ACA).
The DOL has recently returned to providing opinion letters and Secretary Acosta encouraged the audience to utilize opinion letters as a means to solicit guidance on employer compliance. The DOL will also focus on workforce education, such as apprenticeships, to address the skills gap, encourage hiring, and stimulate job growth. Secretary Acosta expressed he will promote regulatory stability, which he hopes will provide employers a level of predictability in order to foster job creation and growth.
Acting Chair Lipnic began her remarks with the status of the two open EEOC commissioner seats; Janet Dhillon as the appointed EEOC chair and Daniel Gade are currently in the senate confirmation process and should be confirmed “shortly.” She declined to anticipate the Senate’s exact timeline. Once the new EEOC appointees are confirmed, the agency will begin its work anew.
Acting Chair Lipnic pointed out that – unlike the DOL, which has a cabinet-level head – the EEOC is a voting body and approaches policy differently. Regardless, Acting Chair Lipnic assured the audience that the EEOC will continue its commitment to reduce the EEOC’s backlog of charges. Additionally, the EEOC is revising the final rules regarding wellness programs and the ADA and GINA that were recently remanded to the EEOC by a federal court. A draft of the revised rules should be unveiled next August. When asked about EEO-1 pay data, she said we will have to wait to see how the full commission votes when the newest members are confirmed.
We then considered the recent 7th Circuit’s opinion in Severson v. Heartland Woodcraft and how that case, which greatly limited a leave of absence as an ADA accommodation, fits with EEOC’s guidance regarding leave as an accommodation. Acting Chair Lipnic pointed out that the EEOC’s guidance does not support unlimited leave as an accommodation and that it contains lengthy discussions on an employer’s ability to assert an undue hardship when faced with a burdensome request for leave as an accommodation.
Given the accounts of sexual harassment in the news, Acting Chair Lipnic reminded everyone to access EEOC training, such as anti-harassment training which is available to employers on the EEOC’s website.
Finally, Hal Coxson discussed the anticipated employer-friendly changes under the new NLRB chair and I provided an update on the numerous and varied state and local law changes. I provided an analysis on the latest developments, including NY Paid Family Leave, as well as the current status of the ERISA disability claims handling regulations. The panel concluded by addressing questions from the audience.
The panel was an insightful view into these agencies’ agendas nine months into the new administration. Employers should expect a more employer-friendly regulatory approach, both in terms of guidance and enforcement. However, employers should not expect any departure from the employment laws the EEOC, DOL, and NLRB enforce; these agencies enforce the laws that Congress enacts and only Congress can change those laws. Additionally, state and local laws continue to lead the way in legislating new employment protection, including minimum wage, paid sick and family leave laws, as well as prohibitions against asking about salary information or criminal backgrounds during the hiring process. The panel agreed that employers would be well-served to have strong legal and human resource partners and reliable sources of information to successfully navigate compliance during this continued period of change.
ReedGroup’s compliance department remains committed to ensuring our customers’ compliance in this complicated landscape. Daily, we are monitoring the federal, state, and local laws that govern leave, disability, and accommodation. We pride ourselves in creating good working relationships with enforcing agencies, as evidenced by my participation on this panel. By keeping our finger on the pulse of regulatory enforcement, ReedGroup’s compliance department can readily anticipate changes in the legal landscape and keep ReedGroup on the front line of absence and disability compliance.