Yesterday, the U.S. Senate Health, Education, Labor and Pensions (“HELP”) Committee held a confirmation for Charlotte Burrows as a new EEOC Commissioner for a five year term and David Lopez for another four year term as General Counsel. The Senate HELP Committee expects to vote on the nominations on November 19, 2014, sending the nominations to the full Senate after that.  All signs point to an effort to confirm both Mr. Lopez and Ms. Burrows during the lame duck session of Congress.

As hearings go, this one was pretty remarkable. Indeed, it is well worth a viewing on the Senate’s website – the link is here. The comments and criticisms leveled during the Senate hearing encapsulate many of the issues – and frustrations – that employers currently face vis-à-vis the EEOC’s litigation enforcement program.

In his opening remarks and questions, Senator Lamar Alexander (R-TN), the likely Chairman of the HELP Committee come January, expressed significant concerns regarding the EEOC’s litigation practices, its focus on mandatory retirement provisions voluntarily agreed up by partners in accounting firms, a lack of transparency related to the EEOC’s sub-regulatory guidance process, and its questionable focus on prosecuting employers who offer wellness plans to its employees in light of the Affordable Care Act’s encouragement of wellness plans.

Notably, several Senators took exception with the EEOC’s recent litigation filed against Honeywell regarding its wellness program (our post on the EEOC v. Honeywell litigation is here). There, just eleven days after receiving a charge, the Commission filed suit seeking a temporary restraining order prohibiting Honeywell from continuing its wellness program as designed.  Given the short timeline, it is clear that little to no investigation occurred, good faith conciliations efforts were virtually non-existent, and the litigation was never submitted to the Commissioners for authorization.

The lawsuit arguably represents an effort to circumvent the EEOC Commissioners, as according to an informal discussion letter, “[t]he EEOC has not taken a position on whether and to what extent a reward amounts to a requirement to participate, or whether withholding of the reward from non-participants constitutes a penalty, thus rendering the program involuntary.”  See here.  Instead, the litigation represents a policy-making effort without either guidance or authorization from the EEOC’s policymakers — the Commissioners.

Senators Scott (R-SC) and Paul (R-KY) continued to pursue similar issues with Mr. Lopez. For example, Senator Scott raised serious concerns about the wellness plan litigation and with the EEOC’s pursuit of large scale litigation where no aggrieved person filed a discrimination charge in the accounting industry. Senator Paul questioned how the EEOC could litigate massive age discrimination class claims without an underlying complaint in the restaurant industry. He considered the EEOC’s pursuit of such litigation as an “absurd abuse of government.”

Implications For Employers

In all likelihood, the Senate will look to hold confirmation votes during the lame duck Congress in the coming weeks. While other important issues must be addressed before the Senate adjourns, including funding for the government and a potential showdown over immigration reform, time is running short to confirm any Presidential nominees including Mr. Lopez and Ms. Burrows.  These appointments, in addition to the recent nomination of Lauren McFerran to the National Labor Relations Board, would likely face stiff opposition come January.  The coming months will be critical in determining how a Republican Congress and Democratic Administration will approach these questions and other important labor and employment issues. Regardless, there will be plenty of activity from agencies trying to adopt new policy positions in the final two years of the Administration. If the tenor of this hearing is any indication, the Senate HELP Committee may consider conducting significant oversight into the EEOC’s activities in the coming months and years.