A Very Merry Litigationmas!

A Very Merry Litigationmas!

Welcome to December! That’s right, we just turned the corner from Thanksgiving and are heading straight into the Christmas straightaway. It’s a wonderful, stressful time of year filled with office holiday parties (my annual disclaimer about open bars at said holiday parties), impending minimum wage increases, Mariah Carey’s annual thawing, and the realization that you still haven’t bought all your gifts, supply-chains are taxed, the malls are packed, and online deals are fading.

And speaking of chaos and stress, we’re also finishing the third full week since the government finally decided to reopen, meaning all the key labor and employment agencies are back up and running – for better or worse!

And so, for this edition of the blog, we thought it would be fun to check in and see how things are going at the Equal Employment Opportunity Commission (EEOC) and the National Labor Relations Board (NLRB), where surely all is calm, cool, and completely under control.

‘Merica

This holiday season, the EEOC wants you to buy American.

Recently, the EEOC released a new technical assistance document titled, “Discrimination Against American Workers Is Against the Law.” While the guidance covers classic issues like accent discrimination and English-only rules, the internet immediately latched onto the materials addressing bias against individuals because they are, well, American. The guidance confirms that discriminating against employees because they were born in the U.S. is just as unlawful as discriminating against them because they were born elsewhere.

Now, for those of you who monitor Title VII and other anti-discrimination laws, you (hopefully) read that and thought: this isn’t new, right? And you’d be correct! National origin discrimination has been unlawful for a long time (give or take 60 years – NBD).

The reason this guidance is getting the spotlight is because this is the latest reminder of what the EEOC and Chair Andrea Lucas plan on focusing their enforcement efforts on. Just like the increased focus on anti-DEI policies, this guidance serves as another clear signal that the current EEOC is hunting for “reverse” discrimination and is heavily invested in an agenda that challenges attacks to “traditional” workplace priorities. The agency is thus using these technical releases to highlight the kind of politically charged issues they are prepared to police.

So – what should you do? You of course may want to review your postings and any recruitment materials for any explicit (or implicit) preference toward a specific national origin or visa status . . . which is what you should be doing anyway. The tricky part isn’t the rule; it’s the enforcement tightrope. On the one side, you have Chair Lucas policing the current administration’s agenda, going after certain issues like Elmer Fudd huntin’ for wabbits. On the other side, you have state and local laws – especially around the tri-State area – that effectively mandate those same wabbits.

Does navigating this just require you to be vewy vewy quiet? Kind of. Ultimately, your approach should be one of unassuming, methodical internal hygiene. This means: continuing to analyze your compliance measures, and ensure that any new protocols that even remotely approach DEI or other “enforcement-spotlight” initiatives are vetted to ensure they don’t inadvertently subject you to increased scrutiny. If you’re looking for help shoring up your defenses, give us a call.

I Do Not Like This Remedy, Sam-I-Am

When we last checked in on the NLRB, it was still lacking a quorum and thus unable to issue decisions in unfair labor practice and union representation cases. In response to this, states such as California, Massachusetts, and New York have attempted to fill the gap by asserting jurisdiction over private-section labor disputes traditionally handled by the NLRB . . . and in return, the NLRB has sued those states. Oh yea – and did we mention that there’s currently litigation in the Fifth Circuit arguing that the structure of the NLRB itself is unconstitutional? So everything is fine. It’s fine.

Back when the NLRB was still functioning and no one was arguing its constitutionality, they issued a decision and order on what we’ll refer to as the Thryv case. Not to be confused with a Dr. Suess character, in Thryv the NLRB announced that employers that engage in unfair labor practices – such as discriminatory firings – are liable for “all direct or foreseeable pecuniary harms” resulting from those practices. What does that mean? According to the NLRB, this means obvious harms such as backpay and lost wages . . . as well as holding employers liable for paying for the discharged employees’ out-of-pocket medical expenses, childcare costs, credit card fees, penalties on early withdrawals from retirement accounts, etc. In other words, from there to here, from here to there, foreseeable pecuniary harms are everywhere.

As you could imagine, this decision was met with much consternation from the management perspective. Since the Thryv decision, four circuit courts have considered the NLRB’s authority to award these expanded remedies, and a clear circuit split has emerged. The Fifth and Sixth Circuits recently joined the Third Circuit in rejecting the NLRB’s Thryv remedies. And you’ll never guess the one circuit that upheld- ok yes, it’s California and the Ninth Circuit, which affirmed Thryv and set up a circuit split we now need the Supreme Court to decide on.

What should you be doing while the NLRB figures out the places it’ll go? If you have brains in your head and feet in your shoes, you’ll still want to avoid lawsuits and charges you’d otherwise lose. More than any other agency in the employment law context, the NLRB ebbs and flows with the political winds. So while it certainly looks bleak for the Board right now, the labor laws still apply to you (and reminder: that’s whether you have a union or not). The best way to survive this chaos is to stay out of it. So whether your name is your name be Buxbaum or Bixby or Bray, or Mordecai Ali Van Allen Van Allen O’Shea, compliance is waiting, so get on your way!

Wishing everyone a wonderful weekend. As always, if you’ve got questions, you know we’ve got answers.

~ The W + K Team