Hunton Employment & Labor Perspectives

A proposed rule  published by the Equal Employment Opportunity Commission (“EEOC”) on October 9, 2020 (the “Proposed Rule”) offers the possibility of expanded information-sharing with respondents/employers in connection with the agency’s conciliation efforts.  The proposed expanded disclosures may enhance the value of conciliation to those parties.

When the EEOC makes a finding that there is reasonable cause to believe discrimination occurred based on a charge filed under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 et seq. (“Title VII”), it must offer the employer an opportunity to resolve the dispute through the “informal methods of conference, conciliation and persuasion.”  42 U.S.C. § 2000e-5(b). The agency may not commence a civil action against an employer unless it is unable to secure satisfactory remedies through the conciliation process.  42 U.S.C. § 2000e-5(f).  According to the Proposed Rule, approximately one-third of employers who receive a reasonable cause finding decline to participate in conciliation, and only 41.2% of conciliations between fiscal years 2016 and 2019 were successful. The Proposed Rule characterizes this as a “widespread rejection” of the conciliation process.

Last month, the United States District Court for the Southern District of New York invalidated portions of the Department of Labor’s Final Rule on joint employment, holding that parts of the Final Rule conflicted with the statutory language of the FLSA and chiding the DOL for failing to adequately explain why the Final Rule departed from the DOL’s own prior interpretations.

In May 2016, the Occupational Safety and Health Administration (“OSHA”) issued a final rule to “Improve Tracking of Workplace Injuries and Illnesses, “ which requires employers to electronically submit their injury and illness records to OSHA.  Specifically, establishments with 250 or more employees must annually submit their Forms 300, 300A, and 301.  And, establishments with 20 to 249 employees must annually submit their Form 300A.  Prior to this rule, most employers had no obligation to submit their illness/injury logs to OSHA.  This rule has been controversial, as OSHA intends to post the records, subjecting employers to increased scrutiny by investors, business partners, regulators, and the public at large.  Moreover, many employers are skeptical that OSHA will appropriately safeguard individualized confidential information from public disclosure.

Federal agencies need not go through the formal and drawn-out “notice-and-comment” process when altering an interpretation of a regulation.  In a unanimous decision, the Supreme Court in Perez v. Mortgage Bankers Association stated that the Administrative Procedure Act (the “APA”) does not mandate notice-and-comment rulemaking for interpretive rules.  In doing so, the Supreme Court overturned the doctrine established by the D.C. Circuit’s 1997 decision, Paralyzed Veterans of America v. D.C. Arena L.P., 117 F.3d 579 (D.C. Cir. 1997), which had held that an agency must use the APA’s notice-and-comment procedures prior to issuing a new interpretation of a regulation that deviates significantly from a definitive interpretation the agency had previously adopted.  In Perez, the Supreme Court addressed the question of whether the Paralyzed Veterans doctrine was consistent with the APA, ultimately finding that it was not.