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March 2010

NLRB and EEOC Recess Appointments

On Saturday, March 27, President Obama announced a recess appointment of 15 nominees. Of those, he appointed two nominees as members to the National Labor Relations Board (NLRB) and four Equal Employment Opportunity Commission (EEOC) nominees. The recess appointments run through the end of 2011, when the Senate finishes its current term. Recess appointees remain eligible for Senate confirmation to full terms, although typically Senate confirmation does not occur after a recess appointment is made.

3-1 Pro-Union Majority in the NLRB

The NLRB nominees who received recess appointments include Democrats Craig Becker and Mark Pearce. Craig Becker has served as the Associate General Counsel to the Service Employees International Union (SEIU), one of the largest and most prominent unions in the country. He has long been the target of strong opposition by the Senate Republicans and the business community. He has expressed his enthusiastic support for the Employee Free Choice Act (EFCA). Mark Pearce is a practicing union lawyer from Buffalo, N.Y. The two recess appointees will join current Chair Wilma Liebman to give the NLRB a three-member Democratic majority of former union-side lawyers. Not since the New Deal and first six years of the NLRB, 1935-1941, has the Board been all Democrats or all from one party. The Taft-Hartley Act followed in 1947 to balance the scales.

Brian Hayes, the Minority Labor Policy Director from the Senate Health, Education, Labor and Pensions Committee and Republican nominee, was previously nominated by Obama but did not receive a recess appointment presumably for strategic reasons. The current Republican member of the NLRB, Peter Schaumber, has been a member of the NLRB since 2005. His term is set to expire in August. The term of current NLRB General Counsel, Ronald Meisburg, a Republican, also expires in August.

Practically speaking, the Board can be expected to issue decisions favoring unions in a number of areas including union access to employer e-mail, limits on employer free speech in opposition to union organization, and the inclusion of employees of separate employers into the same bargaining unit.

As a result of the two recess appointments, the five-member NLRB will have four members, and will have a quorum for conducting NLRB business and issuing decisions for the first time since January 2008. On March 23, the Supreme Court heard oral arguments in the case of New Process Steel, L.P. v. NLRB on whether decisions which have been made by the then two-member NLRB are enforceable. The issue before the Court is whether those two members constituted a quorum. A decision in the case is expected before the Supreme Court's term ends in June.

EEOC Vacancies Filled

The EEOC recess appointments include Jacqueline Berrien to serve as chair, Victoria Lipnic and Chai Feldblum to serve as EEOC commissioners, and P. David Lopez to serve as general counsel.

Jacqueline A. Berrien has served as Associate Director-Counsel of the NAACP Legal Defense and Educational Fund and with the Lawyers' Committee for Civil Rights and the American Civil Liberties Union (ACLU). Berrien is a graduate of Harvard Law School, where she served as a General Editor of the Harvard Civil Rights-Civil Liberties Law Review.

Chai R. Feldblum is a Professor of Law at the Georgetown University Law Center. She previously served as Legislative Counsel to the AIDS Project of the ACLU where she played a leading role in the drafting of the Americans with Disabilities Act (ADA) of 1990 and, later as a law professor, in the passage of the ADA Amendments Act of 2008. Feldblum clerked for Supreme Court Justice Harry A. Blackmun after she received her J.D. from Harvard Law School and B.A. from Barnard College.

Victoria A. Lipnic is the sole Republican nominee. Lipnic was the U.S. Assistant Secretary of Labor for Employment Standards from 2002 until 2009. She was the Workforce Policy Counsel to the Republican members of the Education and Labor Committee in the U.S. House of Representatives. Prior to that she was in-house counsel for labor and employment matters to the U.S. Postal Service for six years. She also served as a special assistant for business liaison to the U.S. Secretary of Commerce, the Honorable Malcolm Baldrige. She earned her J.D. from George Mason University School of Law.

P. David Lopez has served at the EEOC for 13 years in the field and at headquarters. Currently, Lopez is a Supervisory Trial Attorney with the EEOC's Phoenix District Office. Before joining the EEOC, Lopez served at the Civil Rights Division, Employment Litigation Section, at the U.S. Department of Justice in Washington, D.C. from 1991 to 1994. Lopez received his J.D. from Harvard Law School.

As a result of the recess appointments, the EEOC will have a quorum to make decisions on pending regulations and enforcement matters. A number of important regulatory items have been on hold at the EEOC pending the return of a quorum. The Commission has to vote on regulations before they can be both proposed and finalized.

Final rules to implement the Genetic Information Nondiscrimination Act of 2008 (GINA), originally proposed in May 2009, are awaiting clearance at the Office of Management and Budget, even though the statute went into effect on November 21, 2009. The Commission proposed to revise its Americans with Disabilities Act (ADA) regulations and accompanying interpretive guidance in order to implement the ADA Amendments Act of 2008 last September.

Recently the EEOC issued a new rule to address the meaning of "reasonable factors other than age" (RFOA) under the Age Discrimination in Employment Act (ADEA). Comments are due on the RFOA proposal by April 19, 2010. The EEOC will address the scope of the RFOA defense before finalizing its regulations concerning disparate impact under the ADEA.

In addition to these major regulatory initiatives, the EEOC has signaled its intent to increase its focus on pay discrimination as part of a coordinated effort by the Departments of Justice, Labor and the Office of Personnel Management. An enhanced focus on systemic cases combined with a General Counsel who is a seasoned litigator from a field office of the EEOC, and a significant budget increase for hiring attorneys and investigators, should lead employers to expect new and stepped-up avenues of enforcement, in addition to the policy changes from the regulations.

The White House press release on the recess appointments that includes the qualifications and background on all the recess appointees is available on the White House press office website.

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