Employment Law This Week®: DOL Vacancies, Use of Customer Data, Weingarten Rights, EEOC's Investigatory Authority

(1) DOL Vacancies Slowing Trump's Agenda

Our top story: Vacancies at the Department of Labor (“DOL”) are delaying policy changes under the new administration. Nearly half of the leadership positions at the DOL are still vacant, and Labor Secretary Acosta was not confirmed until late April. Neither the Wage Hour Division nor OSHA has a permanent Administrator. The DOL has taken some action, like rescinding guidance on misclassification of employees as independent contractors, but little progress has been made toward new overtime regulations or expanded use of the E-Verify system. Paul DeCamp is a former Administrator of the DOL’s Wage and Hour Division and current Member of the Firm at Epstein Becker Green. Here, he provides some context on the delays:

“Without leaders in place in more than an acting capacity in many of these agencies, there's very limited capacity to make any kind of change at a policy level. This is particularly true in the partisan environment in D.C., where if we remember that Secretary Acosta was confirmed in a very close 60-38 vote, there was a lot of concern, or at least potential concern, that any kind of changes that the agencies make now relative to the policy preferences of the previous administration could complicate confirmation proceedings for as-yet-unannounced nominees.”

Watch the extended interview here.

(2) NLRB Okays Restriction on Employee Use of Customer Information

Employers can restrict employee access to, and use of, confidential customer information, the NLRB says. An administrative law judge found that some employer policies at a national retailer violated the National Labor Relations Act (“NLRA”). The retailer partially appealed, arguing that the policies protected customer information like social security and credit card numbers. Reversing the administrative law judge’s decision, the NLRB found that these policies did not violate the Act, in part because the rules only applied to confidential information obtained from the employer systems. The Board held that employee access to and use of such data falls outside the protection of the NLRA.

Read our recent blog post: eltw85-mm2

(3) Weingarten Rights Apply Only to Mandatory Meetings

The NLRB’s Weingarten doctrine applies only to compulsory meetings. Two nurses at a Kansas hospital were accused of unprofessional conduct and invited to attend an optional peer-review committee meeting on the matter. The nurses filed an unfair labor practice charge after the hospital declined their request that union representatives join them at the meeting. The D.C. Circuit found that the Weingarten rule, which grants union-represented employees the right to have union representation at meetings that may result in discipline, does not apply to voluntary meetings, even those that may result in discipline.

Read our recent blog post: eltw85-mm

(4) EEOC’s Authority Not Limited by Charging Party’s Court Case

The Seventh Circuit finds that the EEOC’s authority is not limited by the actions of a charging party. Two former railroad employees filed a charge of racial discrimination with the EEOC, against their employer. The agency issued a right-to-sue letter in 2012, which would ordinarily close the cases. A federal judge dismissed the employees’ private lawsuit, but the EEOC continued its investigation on a company-wide basis. The railroad challenged the agency’s authority to do so. The Seventh Circuit held that Title VII does not expressly or implicitly limit the EEOC’s investigatory authority, even after the dismissal of a charging party’s lawsuit.

(5) Tip of the Week

Kirsty Devine, Head of US HR and Global Projects for the Financial Times, offers some advice on best practices for HR department transformation:

“First of all, you need to set your vision. So what does the future look like? What are you wanting to achieve? What benefits will this bring if you achieve this transformation? It's really important that you have that in mind as you go through the transformation, because that means that you can help the team to envision where they're going to. Secondly, you need to do research. This is really important to do at the outset, because it gives you a really clear picture as to what's happening today. It's really important as you go through the transformation that you don't transform in isolation. So make sure that you're engaging business stakeholders who might have an interest in your transformation. In this way, when you deliver your transformation, you'll have buy-in to what you're trying to achieve.”

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