Employers wield EEOC concerns against NLRB

Feb 12, 2024

With help from Grace Yarrow

QUICK FIX

A STUDY IN SEMANTICS: Shouldn’t civil society be, well, civil? And shouldn’t businesses have the ability to safeguard that ethos in the workplace?

That ostensible appeal to reasonableness is how employer groups are framing a concerted effort to push back on a string of recent precedents out of the National Labor Relations Board that they say have gone overboard in protecting workers’ speech in the context of labor activism. So much so that it permits vulgar and insulting language to be used against other employees in ways that could violate nondiscrimination laws and run afoul of the Equal Employment Opportunity Commission.

“Federal agencies should not deliberately create conflicts between federal laws as it puts employers in the impossible position of choosing which laws to comply with in a given situation,” the business-backed Coalition for a Democratic Workplace wrote to leaders of the Senate HELP and House Education and the Workforce committees last week and called on them to “rein in” the agency.

Congressional Republicans have expressed similar sentiments, including as recently as mid-January in a letter to the NLRB demanding further information.

Employers argue the limitations posed by the board’s rulings last year in Stericycle (which gave employers less discretion in imposing employee handbook rules) and Lion Elastomers (which reversed a Trump-era standard that made it easier for managers to fire workers who make sexist or racist comments during union activity) are further compounded by the new Cemex Construction Materials Pacific standard. Under Cemex, unfair labor practices committed during an organizing campaign could result in an employer being ordered by the NLRB to bargain with a union even in the absence of an official vote.

“You've got the board taking this position that all kinds of harassing, offensive, nasty behavior will be deemed legal … and then you have the EEOC, which requires an employer to maintain a workplace free of harassing behavior,” said Glenn Spencer, the U.S. Chamber of Commerce’s senior vice president of employment policy. “It leaves employers in a bind.”

Others are skeptical of such claims.

“Isolated incidents or random comments do not create Title VII liability,” Wilma Liebman, a former NLRB chair under the Obama administration, said in an email. “It is mostly rhetoric in my view.”

The latest lobbying effort comes not long after a NLRB judge, for the second time, ruled that Amazon violated labor law by firing a worker, Gerald Bryson, who was protesting its Covid safety protocols in 2020 and got in a heated verbal altercation with a female co-worker. (The company has denied wrongdoing.)

“Employers weaponize civility,” attorney Seth Goldstein, who represents the Amazon Labor Union, which Bryson helped co-found, told POLITICO. “These civility codes really came about under the Trump board and they limited employees’ rights to engage in protected activity.”

Nevertheless the attempt to paint the NLRB as illogical to the general public comes as the agency is fending off a barrage of attacks on its legitimacy — including this week when it heads to court in Texas to defend its recently finalized joint employer test.

GOOD MORNING. It’s Monday, Feb. 12. Welcome back to Morning Shift, your go-to tipsheet on labor and employment-related immigration. In honor of the Super Bowl, read this ode to the yellow first-down graphic. Send feedback, tips and exclusives to nniedzwiadek@politico.com and gyarrow@politico.com. Follow us on X, formerly known as Twitter, at @NickNiedz and @YarrowGrace.

YOUR VIP PASS TO THE MUNICH SECURITY CONFERENCE: Dive into the heart of global security with POLITICO's Global Playbook at the 2024 Munich Security Conference. Gain exclusive insights and in-depth analysis as author Suzanne Lynch navigates the crucial discussions, key players and emerging trends that will shape the international security landscape. Subscribe now to Global Playbook and stay informed.

Want to receive this newsletter every weekday? Subscribe to POLITICO Pro. You’ll also receive daily policy news and other intelligence you need to act on the day’s biggest stories.

On the Hill

EVERYTHING IS AWESOME: President Joe Biden has had a run of strong jobs reports and other economic news. But congressional Republicans are betting those headlines will ring hollow to voters and are holding steady in their criticisms of Democrats, our Meredith Lee Hill and Eleanor Mueller report.

“My view is that yes, things are somewhat better, but not well enough to be recognized politically,” said Rep. French Hill (R-Ark.). “I think a lot of citizens are still concerned about the fact that over the past few years, they’ve got a lot less buying power from their salaries and their dollars.”

Among the data points the GOP have pointed to: A decline in the average number of hours Americans are working and stubbornly weak workforce participation rates, two early warning signs of a potential recession.

More hill news: “Is the Senate Becoming the House?,” from The New York Times.

Unions

MARCH MADNESS: A union election for members of the Dartmouth men’s basketball team will be held March 5, the NLRB said Friday.

Supporters are seeking to organize under SEIU Local 560, which represents other groups of workers on campus. If successful, it would be the first time that a collegiate sports team under the NCAA’s banner has unionized — though there are several legal hurdles that would need to be cleared. Dartmouth and other college sports leaders deny that college athletes are workers — and thus eligible to unionize — and are contesting a NLRB regional director’s determination to the contrary.

ORDER UP: Fast food employees in California on Friday announced the formation of a new labor group backed by the Service Employees International Union, the Los Angeles Times reports.

“The new organization isn’t a traditional union, instead using the model of a so-called minority union that allows workers to avoid the arduous process of organizing restaurant by restaurant through a formal election process certified by the National Labor Relations Board.”

The California Fast Food Workers Union’s top goals are 3.5 percent minimum wage increases over the next three years, “just cause” protections from termination and more-predictable and reliable scheduling rules for workers.

More union news: “Trader Joe's Keeps Up Trademark Fight Against Union After Lawsuit Is Tossed,” from HuffPost.

Around the Agencies

THAT’S SETTLED: Med spa chain Juvly Aesthetics agreed to erase a series of employee handbook rules that the NLRB alleged contained unlawful restrictions on workers’ ability to discuss workplace conditions or change jobs.

Morning Shift highlighted the case a few weeks ago, as it was set to be a major stress test of General Counsel Jennifer Abruzzo’s bid to combat the proliferation of TRAPs, or training repayment agreement provisions. The company was accused of demanding tens of thousands of dollars from a pair of employees for supposed training costs, among other labor law violations.

Juvly signed a settlement agreement on Jan. 29 — one day before the case was set to go before an administrative law judge — that requires the company to rescind the offending policies, refrain from attempting to recoup training expenses and pay some $27,000 in back pay and other relief to two affected employees.

More agency news: “Starbucks, Amazon Fight DOL Over Details of Anti-Union Spending,” from Bloomberg Law.

In the Workplace

UNTIL THERE’S A SHUTDOWN, PERHAPS: The relative stability of the federal government is making it an appealing destination for job seekers as other sectors churn through layoffs and uncertainty mounts, Business Insider reports.

“In recent months, government jobs have been trending on TikTok, and government employees are using the platform to educate others about the requirements and steps needed to enter the industry.”

The average number of applications per open federal job are up more than 50 percent over the past year, according to one hiring site. And the feds have begun substantially increasing their job postings as well.

IN THE STATES

AS THE FEDS DITHER: As pandemic-era federal funding for child care dries up, any attempt at emergency child care funding faces steep odds federally. In the meantime, state legislatures and governors are feeling pressure to split the difference, our colleague Sophie Gardner reports for Women Rule.

Funding during the Covid-19 pandemic showed states what more child care dollars could mean for economies and job markets, Sophie writes. Leaders in states like Massachusetts, Michigan, Arizona, New York and Kansas are attempting to step up in the looming absence of federal funding.

As child care gets more expensive and staffing shortages continue, state funding can only partially solve for the lack of federal support, according to Kyra Weber, the National Women’s Law Center’s senior state policy and outreach manager on the child care and early learning team.

“Long-term, significant federal investment is essential,” Weber told Women Rule.

More state news: “Proposed Wage Theft Legislation Would Strip Violators of Their Ability to Do Business in New York,” from ProPublica and Documented.

Immigration

TRY TRY AGAIN: House Republicans are gearing up for another vote to impeach Homeland Security Secretary Alejandro Mayorkas after their initial attempt ended in an ignominious failure, NBC News reports.

The GOP is hopeful that Majority Leader Steve Scalise’s impending return will be enough to tip them over the threshold, barring any unexpected absences. And Republicans are under a time crunch: the special election to fill ex-Rep. George Santos' seat on Tuesday could soon give Democrats an extra vote for the no column.

Mayorkas for his part is keeping a brave face, saying on NBC’s “Meet the Press” that the charges against him are “baseless allegations” and that he’s “not distracted by them” per our David Cohen.

Related: “Wisconsin GOP Rep. Mike Gallagher won’t seek reelection,” from our Olivia Alafriz.

DON’T MISS POLITICO’S GOVERNORS SUMMIT: Join POLITICO on Feb. 22 to dive into how Governors are wielding immense power. While Washington remains gridlocked, governors are at the center of landmark decisions in AI and tech, economic development, infrastructure, housing, reproductive health and energy. How are they setting the stage for the future of American politics, policies and priorities? How are they confronting major challenges? Explore these questions and more at the 2024 Governors Summit. REGISTER HERE.

WHAT WE'RE READING

— “Why work is so miserable in America,” from Vox.

— “40% of Lawyers Are Women. 7% Are Black. America’s Workforce in Charts,” from The Wall Street Journal.

— “Republican lawmakers are backing dozens of bills targeting diversity efforts on campus and elsewhere,” from The Associated Press.

— “No job? No shame. Younger workers are opening up about unemployment,” from The Washington Post.

THAT’S YOUR SHIFT!

Follow us on Twitter