Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
The Equal Employment Opportunity Commission, National Labor Relations Board, and the Department of Labor will all issue regulations governing joint employment, according to the federal government’s Unified Agenda of Federal Regulatory and Deregulatory Actions – Fall 2019 (regulatory agenda), released on November 20, 2019. The regulatory agenda lists agency rulemaking activities at various stages of development, and includes a description of agencies’ priorities for the upcoming months. While the deadlines are often aspirational, they do provide insight into which rules are advancing. A discussion of the DOL’s Wage and Hour Division regulatory priorities, including its upcoming rule on joint employment, can be found here. This article focuses on the EEOC’s and NLRB’s agenda items.
Equal Employment Opportunity Commission
For the first time, the EEOC’s agency rule list mentions an upcoming proposed rule to clarify when an entity may be considered a joint employer subject to the jurisdiction of federal equal employment opportunity laws. This proposed rule, which the EEOC estimates will be issued next month, “would, among other things, update and consolidate the EEOC’s position on the topic to regulatory locations that are easier for stakeholders to find, as opposed to having the Commission’s position represented in a smattering of different subregulatory guidance documents.”
The EEOC also intends to revise its regulations under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) related to incentivizing employer-sponsored voluntary wellness plans. The EEOC’s rulemaking efforts on this issue are in response to the U.S. District Court for the District of Columbia’s 2017 decision in AARP v. EEOC. The court in that case invalidated the EEOC’s final regulations on the operation of voluntary wellness programs under the two statutes, and ordered the EEOC to further consider its rules as required by the Federal Administrative Procedures Act (APA). The EEOC intends to issue new proposed rules under the ADA and GINA by January 2020.
Pay equity is still on the EEOC’s radar, even though the Commission announced in September that it would not seek approval from the Office of Management and Budget to collect detailed employee compensation data on its Form EEO-1 next year. The EEOC is considering a rulemaking “that may include a new reporting requirement by which employers would submit pay data or related information as reasonable, necessary, or appropriate for the enforcement” of Title VII and the Equal Pay Act. The EEOC plans to seek public input in or around September 2020 “regarding the potential benefits to its enforcement of anti-discrimination laws, appropriate methods of collecting pay data, and burdens on respondents to collect and report pay data or related information under proposed alternatives as well as other alternatives suggested by commenters.”
National Labor Relations Board
The National Labor Relations Board’s agency rule list includes six items, half of which are at the final rule stage. Notably, the Board’s final rule to establish the standard for joint employment under the National Labor Relations Act is expected to be published in the Federal Register next month. Under the proposal, an employer would be considered a joint employer of a separate company’s employees only where that employer possesses and exercises “substantial direct and immediate control” over the essential terms and conditions of employment (such as hiring, firing, discipline, supervision, and direction) of the second company’s employees. Even where an employer exercises direct control over another employer’s workers, it would not be held to be a joint employer if such control is “limited and routine.”
In addition, two final rules to revise the Board’s representation election regulations are expected within the next two months. In 2017, the Board issued a request for information (RFI) on its election regulations, “with a specific focus on amendments to the Board’s representation case procedures adopted by the Board’s final rule published on December 15, 2014.” The Board’s agency rule list states that by the end of this month, it will issue a final rule on this issue. A separate final rule slated for a January 2020 release will “focus on amendments relating to the procedures for the conduct of representation elections under the Board’s representation case procedures.”
The NLRB also plans to establish the standards under the NLRA for access to an employer's private property. The Board estimates that a proposed rule will be ready for publication in the Federal Register by February 2020.
In September, the NLRB issued a proposed rule seeking to exclude from the National Labor Relations Act undergraduate and graduate students at private colleges and universities who perform services in connection with their studies. Under the proposal, these students would no longer be able to join or form a labor union or engage in collective bargaining. The comment period on this proposal closes on November 22, 2019. The NLRB’s agency rule list includes this rulemaking, but does not provide an estimated issue date for a final rule.
Similarly, a final rule date is not listed for the Board’s proposal to make three amendments to the representation election regulations contained in 29 CFR Part 103. One amendment would modify the Board’s blocking charge policy by establishing a vote-and-impound procedure for processing a representation petition when a party seeks to stay an election while an unfair labor practice (ULP) charge is pending. The second would change the current recognition-bar policy by reestablishing a notice requirement and a 45-day open period for filing an election petition following an employer’s voluntary recognition of a labor organization. The third proposed amendment would overrule Board law holding that contract language, by itself, can establish the existence of a Section 9(a) bargaining relationship for companies in the construction industry. The NLRB’s rule list notes that the comment period on this rulemaking has been extended until December 10, 2019, but does provide an estimated date for the next step in the process.
Littler’s WPI will continue to monitor agency rulemaking activities and report on significant developments.