Secretary of Labor Acosta Touts ‘Common-Sense Regulatory Agenda’

EEOC acting chair says progress made on backlog of charges

Allen Smith, J.D. By Allen Smith, J.D. October 19, 2017

​Secretary of Labor Alexander Acosta outlined a "common-sense regulatory agenda," and Equal Employment Opportunity Commission (EEOC) Acting Chair Victoria Lipnic said it's a "new day in terms of regulatory approach" at the Association of Corporate Counsel annual meeting in Washington, D.C., on Oct. 18.

The Department of Labor's (DOL's) agenda includes advancing tax reform, apprenticeships, and associated health plans, and reworking several rules, including ones on overtime, persuader activities, fiduciary responsibility and tip credit.

Lipnic noted that in the 2017 fiscal year ending Sept. 30, the EEOC reduced its backlog of charges to the lowest level in 10 years and increased the number of lawsuits brought. But the commission cut back on the number of systemic lawsuits.

Labor's Priorities

Acosta asked the attendees to "take a breath and realize how well the economy is doing right now." He noted that the unemployment rate is at 4.2 percent, the lowest it has been in 16 years, and that gross domestic product rose 3.1 percent in the second quarter. The country can accelerate growth if it gets tax reform and apprenticeships right, he said.

He said tax reform should be thought of as a jobs bill. It would allow businesses to expense capital investments for five years, for example. If a company buys new equipment, the business will need someone to operate it, he said.

Apprenticeships are a "wonderful way for businesses to fill positions," Acosta said, promoting a task force on expanding apprenticeships announced Oct. 16. "Workforce education matters," he said, adding that it leads to greater productivity and retention.

"Regulatory stability contributes to pro-growth," he said. "Businesses should be able to predict what the future will look like."

They also should know what the law is, which is why the DOL is bringing back opinion letters, he noted.

These are the developments that employers should be watching out for, he said:

Several of these guidances are being rescinded because the administrative state has grown far too much in power and authority, Acosta said, emphasizing that the regulatory process would be used to rescind rules.

Improvements at EEOC

During her talk to conference attendees, Lipnic noted that she has made it a priority to reduce the EEOC's backlog of charges. She predicted reducing it further when the EEOC is fully staffed with commissioners again.

Currently, Lipnic is the only Republican on the five-member commission. Two more Republicans, Janet Dhillon and Daniel Gade are awaiting a Senate vote to confirm their nominations. Chai Feldblum and Charlotte Burrows will remain on the commission as its only Democrats.

While the EEOC litigates only a small percentage of the charges it receives, the commission's general counsel brought 184 lawsuits in district court last fiscal year, many more than the previous fiscal year's historic low of 86. "I believe in strong enforcement," Lipnic said.

She noted that the commission reduced its systemic cases to 30 last year, saying the commission needed a course correction. Trying to take every lawsuit on a systemic basis was proving difficult for the EEOC, she said. The EEOC is now pursuing charges on a narrower geographic basis.

As for its wellness program rule, Lipnic emphasized that the commission's rule was not vacated but that the court instead sent the rule back to the commission to re-examine its justification for the rule. The EEOC anticipates having a proposed rule in August 2018 and a final rule in 2019.

[SHRM members-only toolkit: Designing and Managing Wellness Programs]

The Office of Management and Budget (OMB) suspended the EEOC's pay reporting requirements of the EEO-1 rule, which would have been due with the rest of the EEO-1 report on March 31, 2018. "It's hard to speculate what the new members will do" about the pay reporting requirement, she said, but Lipnic noted that she voted against the pay reporting requirement. She cautioned that if the EEOC retains a pay reporting requirement, it would not pre-empt states' requirements. But she said that the OMB will more closely scrutinize any subregulatory action, such as guidance, going forward.

Toward the end of the presentation, during a discussion of a recent court decision that held that the Americans with Disabilities Act (ADA) does not require leave, Lipnic said that she does not think the ADA was meant to be a leave law, either. She added that the EEOC says leave can be an accommodation but added that "the idea that it can go on and on forever is problematic."


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