Biden labor nominees stalled

As the midterm elections approach and the end of a Democratic Senate looms, President Joe Biden’s key labor/employment nominees remain unconfirmed. With the number of legislative days decreasing and with many Senators out campaigning for their own and others election, the prospects for the nominees for the deciding third Democratic vote on the Equal Employment Opportunity Commission (EEOC), the Wage and Hour director, and the head of the Employee Benefits Security Administration (EBSA) are all in question.

EEOC decision with ramifications

Kalpana Kotagal was nominated to be an EEOC commissioner in April. The nomination of a prominent civil rights lawyer was notable, as was the timing of the nomination. Janet Dhillon, a Republican, was scheduled to step down when her term ended on July 1, 2022. A procedural quirk, however, permits commissioners to stay in place if there is a nominee pending. By tapping Kotagal before Dhillon’s term expired, Biden effectively extended the 3-2 Republican majority on the EEOC until she is confirmed or this Congress adjourns.

In addition to her progressive views, Republicans have opposed Kotagal because her vote would usher in a wave of halted initiatives by the Democratic majority on the EEOC. Updated sexual harassment regulations have been on hold for years, an aggressive litigation agenda is in abeyance, and, perhaps most controversially, a new pay data collection cannot be designed (as proposed by the latest National Academy of Sciences study) and issued.