In the last several days, President Trump has elevated individuals to head two of the governmental agencies that shape employment law. First, Philip Miscimarra was promoted to be the acting chair of the National Labor Relations Board (NLRB) which is charged with enforcing the National Labor Relations Act. Mr. Miscimarra was originally appointed to the Board by President Obama in 2013. Prior to the Board, Miscimarra was a labor & employment lawyer in private practice. Second, Victoria Lipnic was named acting chair of the Equal Employment Opportunity Commission, the agency that handles and occasionally litigates charges of employment discrimination. She likewise was appointed by President Obama in 2010 (and then again in 2015) after a career in private practice and several years with the Department of Labor in the Bush Administration.
What does this mean as far as changes in the labor and employment landscape? Hard to say this early. Since both are insiders in their respective organizations, it is unlikely that they will implement radical structural change for either agency. Mr. Miscimarra has expressed displeasure with some of the NLRB’s recent rulings striking down communication and social media policies in employment handbooks. He also has written dissenting opinions favoring more confidentiality in workplace investigations—especially in harassment cases.
Ms. Lipnic dissented in cases holding that sexual orientation is covered by Title VII’s prohibition on sex discrimination. She also voted against, and has been publicly critical of, the new EEO-1 data form that would include pay information. Data should start being collected under that form this Spring and will be filed in Spring 2018, so it will be interesting to see if she has the EEOC change position on that data collection.