Agency Appointments Signal Progressive Regulatory Environment

Published on: January 22, 2021

Authors: Daniel V. Yager

Topics: Employment Law

President Biden moved quickly to reshuffle the leadership at the Equal Employment Opportunity Commission and the National Labor Relations Board while naming new heads of the White House’s main regulatory office and the agency in charge of federal contractor enforcement.

New chairs at the Board and at the EEOC:  Current Board Member Lauren McFerran, the lone Democrat appointee at the Board, was named Chair of the NLRB.  McFerran has served as a Board Member since 2014 and replaces Republican Chair John Ring.  At the EEOC, Biden named current EEOC Commissioner Charlotte A. Burrows Chair and Commissioner Jocelyn Samuels Vice Chair, replacing Janet Dhillon and Keith Sonderling, respectively.  These three moves will not result in achieving many of President Biden’s priorities, as Republican appointees still hold a majority at both the NLRB and the EEOC.

Jenny Yang to head the Office of Federal Contract Compliance Programs:  Ms. Yang served as Commissioner and Chair of the EEOC in the Obama administration, during which she led the charge on implementing the EEO-1 Component 2 pay reporting requirement.  Ms. Yang also served as an attorney in the U.S. Department of Justice where she specialized in discrimination claims.  Ms. Yang’s appointment signals a vigorous enforcement regime at the OFCCP, emphasizing diversity and inclusion initiatives.

Sharon Block named interim head of the Office of Regulatory Affairs:  Ms. Block currently serves as the Executive Director of the Labor and Worklife Program at Harvard Law School, and previously served as an NLRB Member before her appointment was subsequently invalidated by the Supreme Court as an unlawful recess appointment.  Ms. Block recently published a paper advocating for a significant overhaul of the regulatory affairs office and for it to take the lead on advancing COVID-19 recovery regulations.  Her appointment as regulatory czar thus significantly increases the likelihood that the Biden administration will work as swiftly as possible to undo the deregulatory efforts of the previous Trump administration, while establishing ambitious new requirements.  Ms. Block was recently featured as a panelist at HR Policy’s Fall Labor and Employment Conference and spoke about roadblocks to meaningful labor policy reform.

Outlook:  Given the continued Republican majorities at the EEOC and the NLRB, drastic policy changes from either of these agencies are highly unlikely in the interim.  Conversely, the appointments of Jenny Yang and Sharon Block signal the likelihood of significant regulatory actions in both the near and long term.