Congress has until September 30th to fund the federal government or there will be a partial government shutdown. The National Labor Relations Board (NLRB) has entered into agreements with the Department of Justice and the Federal Trade Commission to protect workers. The Seventh Circuit affirmed the dismissal of a suit brought by the Equal Employment Opportunity Commission (EEOC) on behalf of pregnant workers who were denied light duty assignments. The General Services Administration finalized rules designed to make it easier for unions to provide information about organizing, collective bargaining and unions to employees of federal contractors.
Congress Returns – Congress has completed its summer recess and has returned to Washington. Activity in September will be dominated by the need to pass the appropriations bills funding the federal government for the fiscal year that starts on October 1st. Failure to fund the federal government will result in a partial government shutdown. There are a total of 12 appropriations bills that need to be passed. As of now the House of Representatives has passed 6 of the appropriations bills while the Senate has yet to pass any. The last time that Congress passed all the appropriations bills prior to September 30th was 1997. Given this, Congress is likely to pass a continuing resolution funding the federal government at least through the November elections. The tentative congressional schedule shows the House of Representatives and the Senate not being in session starting in October until after the November elections.
NLRB Enters Agreements with Federal Agencies – The National Labor Relations Board (NLRB) announced that it has entered into partnerships with the Department of Justice and the Federal Trade Commission (FTC) to protect workers. The agreement with the Department of Justice is designed to ensure that workers can exercise their rights under the National Labor Relations Act (NLRA). The collaboration between the two agencies will focus on such issues as misclassifying workers, interfering with the rights of workers to obtain fair compensation and to bargain collectively, and to impose restrictive noncompete and nondisclosure provisions. According to Assistant Attorney General Jonathan Kanter, “By cooperating more closely with our colleagues in the NLRB, we can share information on potential violations of the antitrust and labor laws, collaborate on new policies, and ensure that workers are protected from collusion and unlawful employer behavior.”
The memorandum of understanding between the NLRB and the FTC will result in the sharing of information, cross-training for staff, and partnering on investigations. The areas of mutual interest between the agencies include the misclassification of workers as independent contractors, use of noncompete and nondisclosure provisions, and the ability of workers to act collectively. NLRB General Counsel Jennifer Abruzzo stated that the memorandum of understanding is “critical to advancing a whole of government approach to combating unlawful conduct that harms workers.”
Fifth Circuit Affirms Dismissal of EEOC Lawsuit on Behalf of Pregnant Workers – The U.S. Court of Appeals for the Seventh Circuit affirmed the dismissal of an Equal Employment Opportunity Commission (EEOC) lawsuit against Walmart alleging that by offering temporary light duty to employees who were injured on the job, but not offering this to pregnant workers resulted in Walmart engaging in sex discrimination. In this case, Equal Employment Opportunity Commission v. Walmart Stores East, L.P., the Seventh Circuit stated that “offering temporary light duty to workers injured on the job pursuant to a state worker’s compensation law is a legitimate, nondiscriminatory justification for denying accommodations under the (temporary alternate duty) TAD Policy to everyone else, such as individuals not injured on the job, including pregnant women.”
Walmart implemented a temporary alternate duty policy that allowed workers injured on the job to continue working while accommodating any restrictions that resulted from their injuries.
Walmart did not extend this policy to pregnant workers or those injured outside of work. Pregnant workers who had lifting or other restrictions related to pregnancy had to go on leave, which could result in their going on unpaid leave for several months. EEOC filed this action against a class of workers at one Walmart distribution center alleging that excluding them from the temporary alternate duty policy constituted sex discrimination in violation of Title VII of the Civil Rights Act of 1964. The District Court dismissed the case resulting in this appeal.
The U.S. House of Representatives has passed the Pregnant Workers Fairness Act (H.R. 1065) that would require employers to provide reasonable accommodations for limitations arising out of pregnancy, childbirth, or related medical conditions, unless doing so would pose an undue hardship. Reasonable accommodations would need to be arrived at through an interactive process between employees and employers and if another accommodation could be provided, employers could not require employees to take leave. Companion legislation (S. 4431) has been introduced in the U.S. Senate. The legislation is designed to address a 2015 U.S. Supreme Court decision in Young v. United Parcel Service, which was relied on by the Seventh Circuit. In the Young case, the Supreme Court ruled that pregnant workers must still undergo a several step process and demonstrate that others in the workplace also failed to receive requested accommodations. Supporters of the legislation contend that two-thirds of pregnant workers have lost their cases.
GSA Rule Gives Union Organizers Access to Employees of Federal Contractors – The U.S. General Services Administration announced a final rule, effective on September 2nd that amends the Federal Management Regulation to enable access by union organizers to GSA-controlled federal facilities to provide information about organizing, collective bargaining, and union membership. The rule states that federal facilities controlled by GSA are not covered or restricted by the general prohibition on soliciting, posting, and distributing materials. GSA Administrator Robin Carnahan advised that the rule “removes barriers to worker organizing and collective bargaining for federal contractors, allowing union membership to become more accessible.” The rule implements a recommendation made by the White House Task Force on Worker Organizing and Empowerment. Although the rule is final, GSA announced that it is accepting comments until November 1st for use in future rulemaking.
Neil Reichenberg is the former executive director of the International Public Management Association for Human Resources. He is an attorney, a frequent writer and speaker on public policy and human resource issues, and an adjunct faculty member at George Mason University. For questions or additional information, contact Reichenberg at neilreichenberg@yahoo.com.