The recent Ogletree Deakins webinar, “What’s Ahead in 2015 for Retailers in Labor and Employment Law,” featured leaders in the retail industry and labor and employment attorneys—Randel K. Johnson, senior vice president of the U.S. Chamber of Commerce; Kelly Kolb, vice president of government affairs at the Retail Industry Leaders Association (RILA); Hal Coxson, shareholder and chair of Ogletree Deakins’ Governmental Affairs Practice Group, and Brian Hayes, former member of the National Labor Relations Board (NLRB), shareholder, and co-chair of the Traditional Labor Relations Practice Group at Ogletree Deakins.

In part one of this three-part series summarizing the speakers’ key points, we reviewed recent congressional activity, the White House agenda, paid leave legislation, immigration reform, and recent executive orders. Part two summarized current U.S. Department of Labor (DOL) initiatives and the latest from the National Labor Relations Board. In part three, we cover developments at the U.S. Equal Employment Opportunity Commission (EEOC), what we can expect from the current Supreme Court of the United States term, and lists the most important business litigation support groups for employers.

  1. Developments at the Equal Employment Opportunity Commission (EEOC)

The webinar panel discussed the EEOC’s aggressive approach in litigation against employers, leading to the question: who is in charge at the EEOC? Notably, the EEOC General Counsel does not need approval from the commissioners to pursue controversial lawsuits or engage in aggressive litigation tactics.

Because of the EEOC’s behavior, the U.S. Chamber prepared a report entitled, “A Review of EEOC Enforcement and Litigation Strategy during the Obama Administration—A Misuse of Authority,” in an effort to pull together trends at the EEOC across the country and how the courts are reacting to the EEOC’s tactics. This report then led to Sen. Lamar Alexander’s report “EEOC: An Agency on the Wrong Track? Litigation Failures, Misfocused Priorities, and Lack of Transparency Raise Concerns about Important Anti-Discrimination Agency,” (November 24, 2014) and the following language in the “cromnibus bill”:

The Committee is concerned with the EEOC’s pursuit of litigation absent good faith conciliation efforts. The Committee directs the EEOC to engage in such efforts before undertaking litigation and to report, no later than 90 days after enactment of this Act, on how it ensures that conciliation efforts are pursued in good faith.

In response to EEOC aggression, several bills have been proposed in Congress:

  • The EEOC Transparency and Accountability Act (H.R. 4959) would require the EEOC, among other things, to:
    • post on its website and in its annual report, information to promote transparency including any case in which EEOC was required to pay fees or costs, or where a sanction was imposed against it by a court;
    • conduct conciliation efforts in good faith that would be subject to judicial review;
    • notify Congress within 14 days when a court has ordered sanctions against the EEOC and submit a report to Congress explaining why sanctions were imposed;
    • submit a report to Congress within 60 days of the court’s decision detailing EEOC steps to reduce instances in which it is subject to court ordered sanctions.
  • The Litigation Oversight Act of 2014 (H.R. 5422) would require the EEOC commissioners, among other things, to approve or disapprove, by a majority vote whether the EEOC shall commence or intervene in litigation involving:
    • multiple plaintiffs; or
    • an allegation of systemic discrimination or pattern or practice of discrimination
  • The Certainty in Enforcement Act (H.R. 5423) provides a safe harbor for employers that conduct criminal background checks pursuant to federal, state, or local laws.

10. Supreme Court Decisions to Watch

According to the webinar panel, the following are among the key cases that the Supreme Court of the United States is expected to decide this term that retailers should be watching:

  • King v. Burwell. This case involves a constitutional challenge to tax subsidies of the Affordable Care Act. Oral argument before the Supreme Court is scheduled for March 2015, and Court watchers predict that the decision will be issued in June 2015.
  • Perez v. Mortgage Bankers Association. This case concerns whether a federal agency has the right to change its interpretation of an agency regulation without providing notice and comment period on rule-making.
  • Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, IncThis case concerns whether an employer may be liable for refusing to hire someone only if the employer has knowledge, directly and explicitly from the applicant, of a need for a religious accommodation.
  • Young v. United Parcel Service, Inc. This case will decide whether employers are required to accommodate pregnant employees’ requests for light duty if they give temporary assignments to workers injured on job or to those with ADA-covered conditions.
  • Mach Mining, LLC v. Equal Employment Opportunity Commission. This case concerns whether the EEOC’s duty to conciliate under Title VII of the Civil Rights Act of 1964 is subject to judicial review and what standards should be applied as to whether the EEOC has met its duty.

11.  Business Litigation Support Groups

The panel discussion concluded with observations regarding the primary entities presenting retailers with the last/best hope for reining in or stopping regulatory abuses:

  • S. Chamber Litigation Center
    • The Litigation Center’s mission is to advocate for the legal rights and interests of business in courts across the country by filing amicus curiae briefs and by bringing lawsuits against federal and state regulators to challenge anti-business regulations.
  • The Retail Industry Leaders Association (RILA) Retail Litigation Center
    • The mission of this organization is to advocate for the retail industry in judicial proceedings by weighing in on the most important cases to ensure the court receives retail’s unique perspective.
  • National Retail Federation
  • The National Association of Manufacturers’ (NAM) Center for Legal Action
  • The National Federation of Independent Business (NFIB) Small Business Legal Center
  • Council on Labor Law Equality
    • This organization does advocacy on traditional labor relations issues.
  • Coalition for a Democratic Workplace (CDW)

In addition to these organizations, retailers should stay abreast of the efforts of the following groups: the Society for Human Resource Management (SHRM), the Food Marketing Institute, the National Restaurant Association, the HR Policy Association, and the Equal Employment Advisory Council (EEAC).