A clear theme is emerging from the recent marketing and enforcement efforts of federal agencies that regulate the workplace. The National Labor Relations Board (NLRB), Equal Employment Opportunity Commission (EEOC), and U.S. Department of Labor—the primary agencies that enforce federal employment laws—have all employed new tools and strategies that attempt to expand their reach into the workplace, appeal to a new generation of workers, and shed any image of outdated bureaucracy.
Agencies' New Tools
These latest tools and strategies are both stylistic and substantive in nature. From a style perspective, agencies have turned to technology to more effectively educate workers and reach a younger audience. Agencies have offered webinars, revamped their websites, and even introduced smartphone applications all designed to alert workers about their rights. For example, Department of Labor recently unveiled an app allowing workers to track their hours worked and calculate wages, including overtime. Agencies have also started to recognize the power of social media: The EEOC announced it will implement a social media plan to "ensure that the EEOC moves into the 21st Century," as part of its 2012-2016 Strategic Plan. See http://www.eeoc.gov/eeoc/plan/strategic_plan_12to16.cfm.
Agencies are also expanding their substantive reach by focusing their enforcement activities on new categories of protected employees. Even in the absence of legislative change, the EEOC has pursued initiatives targeting new populations by relying on interpretations of existing law. Criminal history, for example, is not a protected category under federal law. Nonetheless, in 2012 the EEOC issued guidance addressing discrimination on the basis of arrest and criminal history. Similarly, although sexual orientation and gender identity are not protected under federal law, the EEOC's recently released Strategic Enforcement Plan identifies LGBT and transgender coverage as an enforcement priority. See http://www.eeoc.gov/eeoc/plan/sep.cfm.
NLRB Stands Out
The agency that has arguably made the biggest push to expand its reach and relevance is the NLRB. While the National Labor Relations Act (NLRA) has always protected the rights of all employees—union and non-union alike—the traditional focus of the Board has been on unionized workplaces. In 2012, the Board broadened that focus by turning its attention to the rights of non-union employees to engage in protected, concerted activity under the NLRA. A new Web page features an interactive map publicizing the agency's success in protecting the rights of non-union employees. See http://www.nlrb.gov/concerted-activity. In one featured case, for example, the Board won reinstatement and backpay for employees at a non-union medical center who were discharged after jointly writing a letter to management protesting proposed pay cuts. Northfield Urgent Care, 358 NLRB No. 17 (2012).
The Board's most well-known push to expand its reach has been its aggressive enforcement activity related to social media policies. The Board has not limited this activity to social media, however, and has issued complaints challenging policies covering at-will employment, confidentiality, media contact, and employee codes of conduct.
Whatever the underlying reason—a weak economy, the priorities of the administration in Washington, D.C., a desire to remain relevant to a new generation—it is clear that all federal agencies are actively positioning themselves to play an even greater role in regulating the employment relationship.
John Gaal, Chair of the Labor and Employment Law Section, is a member of Bond, Schoeneck & King. Kristen Smith, a Section Member, is an associate with the firm.
