In Good Hands
By Tom Starner
There are new faces at the top of the food chain, at least temporarily, at the National Labor Relations Board and the Equal Employment Opportunity Commission. And based on early feedback from employment law experts, both the NLRB and the EEOC are in good hands.
Phil < Miscimarra >, who has served on the NLRB since August 2013 (appointed by President Obama), is the board's new acting head, while Victoria Lipnic, also an Obama appointee and a commissioner since 2010, will serve as acting head of the EEOC.
Before joining the board, < Miscimarra > was a senior fellow at the University of Pennsylvania's Wharton School in the Wharton Center for Human Resources, and a labor and employment law partner with Morgan Lewis & Bockius in Chicago.
Michael Lotito, a partner and co-chair of the Workplace Policy Institute at Littler Mendelson, calls the appointment of < Miscimarra > the "first step" in a process of returning the board to balancing the rights of employees with the legitimate interests of employers as set forth in the National Labor Relations Act.
"Over the past five years, the NLRB has reversed over 4,500 years of precedent, often over the dissent of [new Chair] < Miscimarra >," Lotito says. "Now, the new administration must appoint two new members to the Board to fill the vacancies that exist. Hopefully, that will happen soon followed by quick confirmation. Only then, with the board at full strength, will it be able to tackle critical workplace issues needing a reasoned resolution."
Steve Bernstein, a partner at Fisher Phillips in Tampa, Fla., says that, as the NLRB's lone Republican for the past several months, < Miscimarra > has authored some of the more vigorous and compelling dissents seen in some time.
"An examination of those dissents may offer a roadmap of what we might expect going forward, as the board moves toward a return to full strength," he says.
A number of < Miscimarra >'s dissents call for greater clarity in the standards to be applied by his agency, Bernstein says, along with a more flexible approach to evaluating employer policies that takes into account the unique justifications for the policies themselves.
More recently, < Miscimarra > has applied that "common-sense" approach to a number of NLRB doctrines, ranging from the employee status of graduate teaching assistants to the supervisory status of patient care coordinators, Bernstein says. < Miscimarra, he adds, also has challenged controversial decisions invalidating binding arbitration provisions and limiting an employer's right to insist upon confidentiality in workplace investigations.
"At the same time," Berstein says, "he has openly questioned the NLRB's apparent departure from long-standing precedent with respect to doctrine governing the use of permanent striker replacements, along with the test for joint-employer status."
As for Lipnic's path to the EEOC chair, prior to her arrival at the EEOC, she was of counsel at Seyfarth Shaw in Washington, and had also served in the Labor Department in various capacities during the George W. Bush administration.
According to Randy Coffey, a partner with Fisher Phillips in Kansas City, Mo., Lipnic previously worked with Democratic Commissioner Chai Feldblum and other commissioners to clarify and address certain employer concerns surrounding the regulations that the agency issued following the passage of the Americans with Disabilities Act and on a 2016 task force to study harassment in the workplace.
On a subject of great interest to employers, Coffey says, Lipnic opposed additions to the current EEO-1 reporting requirements relating to collection of employee pay data, due to the burden of compliance for employers and the lack of usefulness of this type of generalized data. "The appointment of Commissioner Lipnic as chair suggests that the future of this initiative is suspect," Coffey says.
Lipnic also voted against the EEOC's decision to treat LGBT discrimination as being covered by Title VII of the Civil Rights Act based on her belief that the statute does not address LGBT discrimination, which she believes is properly addressed through legislation rather than regulatory actions by an agency.
"We can expect a common-sense, practical approach from Victoria Lipnic," says Coffey, adding that, although Lipnic currently is the only Republican appointee to the commission, she is a "consensus builder who will look diligently at the interests of both employees and employers."
According to Coffey, Lipnic has a healthy respect for the agency as an enforcer of existing laws, rather than as a law-making body.
"I can't say enough positive things about Victoria that would do her justice," says Barry Hartstein, a partner in Littler's Chicago office. "I've worked very closely with her on many different levels and issues."
Hartstein cites Lipnic's work with the EEOC's harassment panel task force as a prime example of her leadership abilities.
"Victoria is truly what I would best describe as always the level-headed one. She is able to work and partner effectively with individuals on the other side of the aisle," he says. "And she can be quite persuasive."
A great example of Lipnic's ability to cross the aisle, Hartstein says, occurred when she and Chai Feldblum, another Obama appointee and current commissioner, went on a tour together dealing with the ADA and reasonable accommodation, giving advice to employers on how to be compliant. While Lipnic and Feldblum may not be on the same page politically, he says, "they really have been effective partners with one another."
Currently, there are two EEOC vacancies, which President Donald Trump will appoint, as well as finalize the commission's new chair.
"Obviously, this president keeps an element of surprise going," Hartstein says, "and there is no necessary 'shoo-in' aspect for Victoria, but she's certainly deserving of being the permanent chair." The key goals for Lipnic should be putting a high priority on dramatically reducing the backlog of current EEOC cases and reversing the trend of filing charges in the absence of the formal charge by a specific charging party.
"Certainly, that's an area that has subjected the Commission to criticism from the Republican side of the aisle," he says. "So she may want to focus on that aspect of the Commission while serving as acting chair."
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