November 19, 2021
The Equal Employment Opportunity Commission, the National Labor Relations Board, and the Department of Labor have launched a tri-agency initiative to combat what they view as widespread, “increasingly alarming” retaliation by employers against employees for asserting workplace rights.
Top officials from each of the three agencies vowed to use all available tools in a push against retaliation during a public webinar entitled “DOL, NLRB, and EEOC Dialogue: Ending Retaliation, Promoting Workers’ Rights.” Solicitor of Labor Seema Nanda was joined by NLRB General Counsel Jennifer Abruzzo, EEOC Chair Charlotte Burrows, and Jessica Looman, Acting Administrator of the DOL’s Wage and Hour Division. The four women wield considerable enforcement and litigation power that can be used to target employers, and their involvement and collaboration on this issue shows the DOL’s significant commitment to ending retaliation in the workplace.
“Increasingly alarming behavior by employers have caused us to want to act in unison,” said Solicitor of Labor Nanda. Ms. Nanda highlighted threats of termination, reporting of immigration status to ICE, and other threatening or improper behavior as examples of employer retaliation against employees that the agencies view as endemic in American workplaces. Ms. Nanda also emphasized that her office was prepared to “act early” and conduct “active interventions” including using temporary restraining orders and preliminary injunctions “to get the results that we want,” all as part of a “zero tolerance policy for retaliation.”
The three officials committed to an ongoing dialogue and collaboration on how best to utilize their combined authority to combat retaliation. “Stronger collaboration and more networked enforcement will continue to protect those [workers] most vulnerable,” said NLRB General Counsel Abruzzo. “This is the first of many valuable conversations on how we can work together to tackle the problem of retaliation,” added EEOC Chair Burrows.
Outlook: The tri-agency enforcement initiative is reflective of the Biden administration’s activist approach to worker rights in general. Employers can expect to see a significant increase in investigation and enforcement activities from the DOL, EEOC, and NLRB in retaliation cases, and should ensure that management teams understand the appropriate steps to take in situations where potential retaliation can arise. “The culture of an organization matters. Be clear that retaliation is not tolerated. Ensure managers understand their responsibilities,” recommended Solicitor Nanda.