EEOC enters year 3 of purgatory

Jan 30, 2023

QUICK FIX

ON SENATE TIME:When one agrees to become a top official in the federal government, particularly one afforded independence from the White House’s whims, it’s generally with the hopes of doing big things and expectation that you’d be empowered to try.

Yet for Equal Employment Opportunity Commission Chair Charlotte Burrows, that has not been the case. She is entering the home stretch of her current five-year term, but is now on her third year without a Democratic majority to effectuate her vision.

The Democrat-controlled Senate failed to act on Kalpana Kotagal’s nomination before the end of 2022, a lack of action that preserved EEOC Republicans’ ability to stymie the Democratic wing and forced Biden to renominate Kotagal and fellow EEOC nominee Karla Gilbride. (New Senate HELP Chair Bernie Sanders’ office did not return requests for comment.)

The result is a steadily accumulating to-do list on matters big and small, ranging from individual litigation requests to internal agency strategy all the way up to formal rulemaking. All of that will likely be unfinished when Burrows’ term ends July 1, and her tenure will have to be evaluated by Congress and the White House if she would like to stay on for another five years.

That meant no organizational blueprints subject to commission vote and little movement on regulatory changes or guidance updates led Burrows to act in ways that sidestep the formal approval process — creating problems with Republicans, the agency’s union and federal judges at times across a number of issues.

Your host has a rundown of Burrows’ tenure and what a third Democrat could mean for the EEOC available for Pros here.

Despite these difficulties, EEOC’s partisan appointees are still nowhere as acrimonious as those at places like the Federal Election Commission or even the National Labor Relations Board.

In fact both wings of the commission have taken an interest in combating the risk of bias within artificial technology and algorithms used to make hiring and employment decisions. A hearing on that is scheduled for Tuesday.

GOOD MORNING. It’s Monday, Jan. 30. Welcome back to Weekly Shift, your go-to tipsheet on labor and employment-related immigration. Your host’s hometown culinary curiosity got some national attention recently. Send feedback, tips, and exclusives to emueller@politico.com and nniedzwiadek@politico.com. Follow us on Twitter at @eleanor_mueller and @nickniedz.

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On the Hill

FOXX’S GAMEPLAN: North Carolina Republican Virginia Foxx shocked many on the Hill last month when she nabbed a rare waiver to chair the House Education and the Workforce Committee despite GOP caucus term limits. Eleanor and our Bianca Quilantan sat down with her Friday as she has already quickly set about refashioning the committee to Republicans’ liking. (Pros get the full Q&A here.)

On labor oversight: “We think they're doing a lot of nefarious kinds of things. We're watching the NLRB and how they're pushing mail-in ballots. We're watching Walsh not remain an objective observer of what's happening, going and getting on the picket lines.”

Labor-related legislative priorities? “We're concerned about what the Biden administration is doing on independent contractors, and how they're pushing in that area. We'll be looking for CRAs [Congressional Review Act opportunities] and what we can do with those and what we can do with legislation.

Any plans to revisit WIOA, the Workforce Innovation and Opportunity Act, after bipartisan talks broke down last Congress?

“Of course we will. I can’t wait to get into it. WIOA was passed in exactly the same situation we're in right now. We had a Republican House, a Democrat Senate, and a Democrat president. Two of my predecessors, John Boehner and Buck McKeon, had both worked on trying to reauthorize it.”

Around the Agencies

HAVE NO FEAR, JENNIFER ABRUZZO: A second federal appellate court ruled on Friday that the White House has the authority to can the top attorney at the National Labor Relations Board, Reuters reports.

“A unanimous three-judge panel of the 9th U.S. Circuit Court of Appeals said federal labor law only shields the five members of the board from being removed at will and not the general counsel, who acts as a prosecutor.”

A nursing home company argued that Biden illegally terminated Trump-appointed NLRB general counsel Peter Robb back in 2021, thereby rendering subsequent decisions made by his successor invalid.

The ruling mirrors one issued last spring by the 5th Circuit, which has a reputation for being far more conservative ideologically than the 9th.

What’s on Marty’s mind: “After Wu's speech, Walsh defends his time in City Hall,” from the Dorchester Reporter.

In the Workplace

TODAY’S THE DAY: The Biden administration’s rule giving retirement plans more leeway to account for so-called environmental, social and governance considerations in their investment decisions is set to take effect today.

The move is a reversal from former President Donald Trump, whose administration attempted to severely limit anything outside of purely dollars-and-cents retirement investing, but does not require investors to use so-called ESG metrics.

Regardless, more than two dozen Republican attorneys general sued the Biden administration last week to block DOL’s implementation of the rule. The lawsuit was filed in the northern district of Texas, which conservatives have found to be receptive turf for legal challenges to laws like the Affordable Care Act, a strategy that has led to accusations of forum-shopping from Democrats.

Congressional Republicans are also seeking to unwind DOL’s rule via the Congressional Review Act, though Democrats’ control of the Senate makes that an unlikely possibility.

More workplace news: “Amid gains, railroaders seeking quality-of-life improvements,” from The Associated Press.

Unions

WHAT’S IN A NAME: For decades until his unexpected death in August 2021, Richard Trumka was a prominent foil for business groups and conservatives as one of the country’s most powerful labor leaders.

Many of those same people have been enraged of late by the idea of curbing the use of natural gas kitchen appliances, a furor that happens to be traced back to one Richard Trumka Jr., a heretofore obscure member of the Consumer Product Safety Commission who raised concern about its health effects on young children.

The younger Trumka was the subject of a recent Washington Post profile, which summarized that he “has the same thick mustache, but that’s where many of the similarities end.”

More union news: “Firefighters Union Pushes to Rid Protective Gear of ‘Forever Chemicals,’” from The Wall Street Journal.

IN THE STATES

MD MULLS SHORTER WORKWEEK: A legislative proposal in Maryland would give the green light to a pilot tax credit for employers who downshift workers to a four-day workweek, The Washington Post reports.

“The Maryland bill will get its first hearing in the Senateearly next month. [Sen. Shelly] Hettleman and Del. Vaughn Stewart (D-Montgomery), the lead bill sponsor in the House, said the bill has garnered a lot of attention in Annapolis … but its fate remains uncertain.”

More state news: “The Jobless Rate Is at a Half-Century Low. In These States, It’s Even Lower,” from The Wall Street Journal.

Immigration

TECH TROUBLES: A mobile app for those seeking asylum appointments in the U.S. frequently sees its systems overwhelmed by migrants in Mexico, The Associated Press reports.

“Many can’t log in; others are able to enter their information and select a date, only to have the screen freeze at final confirmation. Some get a message saying they must be near a U.S. crossing, despite being in Mexico’s largest border city.”

Other issues include a lack of language support outside of English or Spanish, and technical problems. Some migrants, particularly with darker skin, say the app has difficulty processing pictures.

The app’s struggles exemplify the difficulties in setting up ways to manage asylum and other immigration requests in order to lessen the number of people arriving at U.S. borders.

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