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HRPA Panel: Employer DE&I Initiatives May Be in the Crosshairs in 2023

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HR Policy Future Workplace Policy Council Staff were joined by Home Depot’s Barbara Pennington in a conversation previewing the major policy developments expected over the next six months.

The Supreme Court looms large as a ruling in the Harvard and North Carolina college admissions cases could implicate employer DE&I efforts. Mr. Yager observed that given the conservative majority on the Court, its decision could pave the way for Court scrutiny of some company initiatives. 

Meanwhile, affirmative action requirements for federal contractors under Executive Order 11246 may also be implicated, particularly under the Supreme Court’s recent reaffirmation of its “major questions doctrine,” Mr. King noted. HR Policy Association has already referenced the doctrine in comments to the FTC on privacy and AI tools, arguing rulemaking would have great economic and political significance in an area where Congress has not clearly delegated such authority. 

Corporate culture is a major consideration, Ms. Pennington noted, in many areas but particularly in those involving DE&I efforts. Companies will need to be mindful of their external and internal messaging on the practices which could be impacted by these developments, highlighting the positive things they are doing. 

In the meantime, by the end of the year Congress will consider must-pass legislation which could include blacklisting or other pro-labor provisions, Ms. Birbal pointed out. Also expected is a flurry of hearings on workplace issues from the House Education and Labor Committee, as well as continued movement on nominations to key administration posts. 

The Biden administration is taking a whole-of-government approach to regulating HR data, Mr. Chasen said. This includes FTC rulemaking on privacy and AI, an AI initiative by the EEOC, and a move by NLRB General Counsel Jennifer Abruzzo to adopt a framework finding certain use of employee monitoring, or AI management tools to be “presumptive” violations of the National Labor Relations Act. 

Employer liability exposure will increase under misclassification rulemakings, including by DOL on independent contractor status and the NLRB on joint employer liability, Mr. Hoff noted. In the meantime, the NLRB is expected to begin issuing decisions on a host of significant issues, such as workplace rules and policies and bargaining unit size. 

Join us next week as presumptive DOL Wage and Hour Administrator Jessica Looman and OFCCP Director Jenny Yang discuss top DOL initiatives.

Published on: December 2, 2022

Authors: Daniel W. Chasen

Topics: Employment Law, Inclusion and Diversity

Daniel W. Chasen

Vice President, Workplace Policy, HR Policy Association

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Contact Daniel W. Chasen LinkedIn

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