United States: Agency Heads Discuss Changes In Regulatory Direction During Federalist Society Panel

Last Updated: November 20 2017
Article by Michael J. Lotito and Ilyse W. Schuman

The current leaders of the Department of Labor, Equal Employment Opportunity Commission, and National Labor Relations Board addressed transitions and regulatory plans at their respective agencies at a November 16 forum. The Federalist Society, a conservative think-tank, sponsored the panel discussion during which the speakers advocated a more common-sense approach to rulemaking, and supported the Trump administration's efforts to rescind or scale back some of the prior administration's more onerous rules.

Labor Secretary Alexander Acosta kick-started the discussion by criticizing the Obama administration's practice of using sub-regulatory guidance to change the law. He said he was against using "administrative fiat" to implement significant policy changes. He cited as an example the prior administration's joint employer and independent contractor guidance, which the current DOL has rescinded. According to Secretary Acosta, any change in substantive law should be made by Congress, not by interpretive guidance that is issued without the benefit of notice and comment.

In determining which rules are ripe for deregulation, the Labor Secretary proposed adding a new layer of analysis. When deciding which regulations to roll back, he said the agency should not merely perform a cost/benefit analysis, but should evaluate whether revoking the rule is necessary to preserve liberty. Secretary Acosta advocated using qualitative analysis or value judgment. As an example, the Secretary pointed to the DOL's enjoined persuader rule, which would have required employers to file public reports with the DOL when they use consultants (including lawyers) to provide labor relations advice and services that have the purpose of persuading employees regarding union organizing or collective bargaining. This rule, Secretary Acosta explained, would have infringed on the attorney-client privilege.

In addition, the Secretary pointed to the tip credit rule, which is on the agency's chopping block.1 Issued in 2011, the rule restricts allocating tips to non-tipped employees when the employer does not take a tip credit. According to Secretary Acosta, this rule bars agreements for sharing tips between front-of-house and back-of-house employees in certain instances. There is a circuit split regarding the legality of the DOL's authority to regulate this issue. Secretary Acosta said this issue also involves principles of liberty—specifically, freedom of contract.

Nicholas C. Geale, the DOL's Chief of Staff and Acting Solicitor, mentioned other items the DOL is currently working on and/or re-examining. His list included revising the H-1B visa forms to increase transparency, reforming the H-2B visa program, proposing rules regarding the use of Association Health Plans, proposing an 18-month delay in the fiduciary rule's prohibited transactions exemptions, making changes to the ancillary provisions of the beryllium rule, reviewing the Occupational Health and Safety Administration's rule allowing union officials to join workplace inspection "walkabouts," and revising the overtime regulations, among others.

Acting Chair of the EEOC ,Victoria A. Lipnic, similarly provided an update on Commission personnel and policy, and discussed what the Commission would be working on in the near future. Lipnic noted that the Commission has directed significant attention to reducing the backlog of pending charges filed with the EEOC. According to the Acting Chair, the Commission has reduced this backlog by 16%—the most significant reduction in 10 years. Other agency accomplishments can be reviewed in the Commission's FY 2017 Performance and Accountability Report, released on November 15.

In terms of EEOC policy, for the past month, "we have been living in the sexual harassment moment," she said. The Acting Chair said she and Commissioner Feldblum spearheaded a select task force to study harassment in the workplace, and that revised guidance on harassment has been sent to the Office of Management and Budget for approval before it will be released publicly.

Among the proposed recommendations issued last year, Acting Chair Lipnic remarked, was the provision of bystander intervention training as well as workplace civility training. The Acting Chair said she wanted to get the NLRB on board with the need for employer-enforced civility. She noted that the NLRB in recent years has found employers in violation of the National Labor Relations Act when they implement civility policies or codes of conduct and discipline employees for any violations of these policies.

Wellness is another area the Commission will focus on in the coming months, the Acting Chair said. After the EEOC issued its wellness regulations under the ADA and GINA, the Commission was promptly sued for its explanation of what constitutes a "voluntary" wellness plan, among other issues. A federal court remanded the rule for the EEOC's reconsideration, but did not vacate the rule.2 According to Lipnic, the "the EEOC will be spending another few years on wellness plans."

Finally, Acting Chair Lipnic said the Commission, once the new members are confirmed, will be taking another look at the revisions to the EEO-1 form, which had been amended to require the reporting of compensation data. The revised form has been suspended indefinitely.3

Waiting for a full complement of Commission members is the biggest delay in making policy headway, she explained. As the sole Republican member on the Commission, Lipnic cannot effect significant policy change. Two Republican nominees currently are awaiting Senate confirmation. In addition, the president has not yet nominated a new EEOC general counsel, which "is a very critical position at the EEOC." Although she and her three Democratic colleagues enjoy a good working relationship, "it makes a difference if you don't have the votes."

The NLRB, on the other hand, is currently working with a full five-member Board, although Chairman Philip A. Miscimarra's term will end in December. He considers this "an important transitional year" for the Board. During the panel, he reviewed some of the seismic policy shifts the Board has undergone during the past eight years, including the implementation of the revised election representation rules, and the increasing tendency of the Board to find neutral employment policies and work rules in violation of the NLRA. Chairman Miscimarra also found fault with the Board's position that merely requesting that employees maintain the confidentiality of ongoing investigations violates federal labor law. The Board's decisions in recent years have "made it difficult for parties to figure out what the law requires," he said.

The president has not yet announced his choice for Miscimarra's replacement. Until that replacement is nominated and confirmed, starting in mid-December, the Board will comprise two Democrats and two Republicans.

The panel discussion made clear that all three agencies, the DOL, EEOC, and NLRB, are poised to redirect their regulatory focus in the coming months.


1 See Eli Freedberg, DOL Announces Intent to Rescind Rule Restricting the Allocation of Gratuities to Non-Tipped Employees When the Employer Does Not Take a Tip Credit, Littler Insight (July 27, 2017).

2 See Russell Chapman, EEOC Must Reconsider its Wellness Regulations, Littler ASAP (Aug. 23, 2017).

3 See David Goldstein and Ilyse Schuman, New EEO-1 Report Suspended Indefinitely, Littler ASAP (Aug. 29, 2017).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions