Regulatory Roundup: New NLRB Nominations, EEOC Zeroes in on Diversity Data

The White House announced a new Republican nominee for the National Labor Relations Board (and re-nominated a sitting Democrat Board Member), the Equal Employment Opportunity Commission warned against giving diversity data to hiring managers, and Maryland is poised to become the latest state to ban mandatory employer-held meetings. Read more below!

NLRB inches towards policymaking majority, lasting quorum: President Trump nominated James Macy, currently the director for the Department of Labor’s Office of Workers’ Compensation Programs, for the Board.

• Macy’s confirmation would give the Board a three-Republican majority, enabling it to finally begin issuing precedent-changing decisions—including undoing the employer-unfriendly policies of the previous Biden-era Board.

  • Traditionally, the Board does not change policy without at least three Members in the majority. The current Board has not had a three-Republican majority since President Trump took office.

• President Trump also re-nominated current Democratic Board Member David Prouty to serve another term, which assures that the Board will continue to have quorum when his initial term expires this August.

The bottom line: Once Macy is confirmed (there is currently no expectation that he will not be), the Board can begin erasing Biden-era decisions, rebalancing Board rules—although time is already running out.

EEOC Chair Lucas cautions employers on diversity data: During a recent webinar hosted by the College of Labor and Employment lawyers, Chair Andrea Lucas warned employers that sharing company demographics data with hiring managers is “a high-risk practice” that could be considered discriminatory. Lucas said that sharing such data with hiring managers could “motivate, unlawfully” an employment decision, and would draw the scrutiny of the EEOC.

• Chair Lucas directed employers to treat company demographics data the same as medical data and store it separately and confidentially.

The bottom line: Any connection between diversity data and hiring practices will draw significant scrutiny from this administration, and could lead to an EEOC investigation.

Maryland set to become latest state to ban (some) mandatory employer-held meetings. Maryland SB 417, which passed the state legislature and awaits Gov. Wes Moore (D)’s signature, would prohibit employers from disciplining employees for refusing to attend or participate in employer communications “regarding religious matters or political matters.”

• “Political matters” is defined to include the decision to join a union.

• If signed, the law would become effective this July.

The bottom line: Maryland would become the 13^th state to ban mandatory employer-held meetings on unionization. The majority of these laws have been passed in the last few years alone, and some have language broad enough to potentially apply to many types of mandatory work meetings. Legal challenges against such laws are currently pending in four states.