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Are the EEOC and NLRB about to Grind to a Halt?

No, but progress at these agencies may be slow if new members are not confirmed by Congress before the summer.  Both agencies are operating with three member panels with one member’s term set to expire in the summer.  With only two panel members, neither agency is permitted to make major policy decisions.  This is a problem for employers. 

  1. NLRB Structure

The National Labor Relations Board (“NLRB”) is a quasi-judicial body appointed to decide allegations of violations of the National Labor Relations Act and issues pertaining to employees choosing to be unionized or remain union free.  At capacity, the NLRB is made up of five members.  It presently has three members, John Ring, William Emmanuel, and Marvin Kaplan. 

Each member is appointed for a five year term.  Marvin Kaplan’s term expires in August 2020.  If no one new is appointed, in August the Board will be down to two members.  Without a three member quorum, they cannot decide cases or perform other key functions.

A lack of quorum was also an issue under the Obama administration.  During January 2008 to September 2009, the Board had only two members, Wilma Liebman and Peter Schaumber.  They informally agreed to decide cases that were noncontroversial and issued almost 400 decisions during that time.  Ultimately, the Supreme Court of the United States ruled the two-member Board had no authority to issue decisions since it lacked a quorum.  Thus, if the Board drops down to two members again this summer, progress at the Board level would come to a halt.  The Agency as a whole, however, continues to accept administrative charges, investigate claims, etc.  The Board just simply cannot issue decisions.

  1. EEOC Structure

The Equal Employment Opportunity Commission (“EEOC”) is struggling with the same issue.  Commissioner Victoria Lipnic announced she is not seeking a new term when hers ends in July 2020. 

Like the NLRB, the EEOC at capacity has five members.  It currently only has three, Lipnic, Janet Dhillon, and Charlotte Burrows. With Lipnic’s departure, the agency will be down to two members.  While the EEOC won’t close, this puts progress on major issues on hold. 

Employers should care about this because the NRLB impacts both unionized and non-unionized employers.  For instance, handbook policies have been a huge interest for the NLRB over the last decade.  Under the Obama administration, the NRLB’s position was very employee friendly and placed various restrictions on an employer’s right to limit confidentiality, media inquiries, and many other standard policies included in a handbook.  Under the Trump administration, the Board has reversed many of those policies.  Without a quorum, the Board would be unable to make such changes and the policies of prior administrations could not be changed.  The same issue arises at the EEOC.  For example, many changes pertaining to gender discrimination were made under the Obama administration.  The Trump administration has been reversing them.  Without a quorum, such reversals will stop.  Therefore, it’s best for both employers and employee if the NLRB and EEOC are operating with at least a quorum.  We will continue to monitor this issue and keep you posted. 

Brody and Associates regularly advises its clients on all labor management issues and provides various related training programs.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560. Additionally, if this article generated any additional questions for you, please contact us at info@brodyandassociates.com.  We may address your question in a future blog post.