Regulatory Agency Updates: The EEOC and the NLRB Release New Statistics and the EEOC Signals Areas It Will Target in the Near Future

Recently, the Equal Employment Opportunity Commission (EEOC) issued its updated Strategic Enforcement Plan for FY 2024-2028. The EEOC highlighted three areas for enforcement: (1) pay equity; (2) workplace complaint and dispute resolution policies and procedures; and (3) hiring practices. We discuss these in more detail below, as well as providing brief year-end EEOC and National Labor Relations Board (NLRB) statistical updates.

The EEOC’s Strategic Enforcement Plan

Pay Equity

As part of its pay equity enforcement goals, the EEOC has indicated that it will target three areas involving pay equity issues: (1) pay secrecy policies; (2) discouragement or prohibition of workers from asking about pay or sharing their pay with coworkers; and (3) reliance on past salary history or applicants’ salary expectations to set pay. Many states also have laws in place regarding these issues. 

Dispute Resolution and Employee Agreements

In conjunction with the NLRB, the EEOC has also made employment dispute resolution a priority in its Strategic Plan. The EEOC will continue to investigate and enforce prohibitions against certain types of agreements, including: (1) overly broad waivers, releases, non-disclosure agreements or non-disparagement agreements; and (2) unlawful, unenforceable, or otherwise improper mandatory arbitration provisions. The EEOC will also target companies that fail to comply with statutory requirements to maintain applicant and employee data and personnel records. We recently reported on the NLRB’s similar efforts here.

Hiring Practices

The EEOC is also cautioning employers about overreliance on technology, artificial intelligence, and machine learning in hiring practices. The EEOC has identified several enforcement priorities in the AI field, including:

• The use of technology to run recruitment initiatives and make or assist in hiring decisions that have a disparate impact on protected classes;
• Reliance on restrictive application processes or systems that make access difficult for those with disabilities or other limitations; and
• Positions that limit on-the-job training, pre-apprenticeship or apprenticeship programs, temp-to-hire positions, and internships.

Employers should take note of the EEOC’s enforcement priorities, as they signal areas of potential risk. Employment applications, interview guides, employment agreements, dispute resolution agreements, and hiring policies and practices should be reviewed and updated as needed given the targeting they may face in the near future.

2023 EEOC Year-End Litigation Updates

In FY 2023, the EEOC filed over 50% more employment discrimination lawsuits than in 2022.  Of the 143 new lawsuits, 25 were systemic discrimination cases, 32 were class actions, and 86 were filed on an individual basis. The EEOC defines a “systemic” discrimination litigation as one that targets a “pattern or practice, policy and/or class … where the discrimination has broad impact on an industry, profession, company, or geographic location.” We will provide a further update once the EEOC releases its final report for FY 2023.

2023 NLRB Year-End Statistical Updates

The NLRB likewise reported an increase in activity for FY 2023, with unfair labor practice (ULP) charges increasing by 10% and union representation petitions increasing by 3%. We expect increased union activity to continue, along with increased filing of and enforcement related to ULPs over the next year. See our previous update on recent NLRB activity here.

The end of the year is a great time to review employment practices and procedures and prepare for continued compliance in the New Year. If you have any questions about these or any other workforce issues, please contact one of Honigman’s Labor and Employment attorneys here.