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New Year Brings Management-Friendly Perspectives To Labor And Employment Arena

Wed March 1, 2017 Publications

Four key players are expected to create a management­friendly atmosphere in the labor and employment law arena, assuming their positions are confirmed.

Andrew Puzder, a fast food executive who runs the parent company of Carl’s Jr. and Hardees, is the nominee for Secretary of Labor. His perspective is indeed different from former Secretary of Labor Thomas Perez who was a civil rights lawyer and consumer advocate. Puzder’s past statements against minimum wage and his companies’ history of labor law violations have fomented Democratic opposition to his appointment. While he has said, “I am fully committed to becoming secretary of labor and I am looking forward to my hearing,” the Senate Committee announced that his hearing has been postponed for a fourth time.

Phillip Miscamara, a former management attorney and the sole Republican on the National Labor Relations Board, was appointed Acting Chairman. He took over from Democrat Mark Pearce, a union and plaintiff-side lawyer who had served as chairman since August 2011. As a Commissioner, Miscamara has frequently disagreed with the Board’s Democratic members, issuing dissents on labor-friendly majority opinions which allowed workers to more easily organize into micro-units and relaxed the test for determining joint employer liability for labor violations.

Victoria Lipnic was appointed as Acting Chairman of the Equal Employment Opportunity Commission. As a Commissioner, she voted against the EEOC’s July 2015 decision that sexual orientation discrimination is a form of sex discrimination prohibited by Title VII and she voted against the majority’s pregnancy discrimination guidance issued in July 2014.

Judge Neil Gorsuch, if confirmed to fill the open seat on the U.S. Supreme Court, with his originalist approach, is expected to disfavor Obama-era regulations issued by the NLRB and EEOC which would bode well for employers. His decisions have favored arbitration and criticized undue judicial deference to administrative agencies, namely the DOL’s Administrative Review Board and the NLRB.