News & Commentary

January 27, 2022

William Greenlaw

William Greenlaw is a student at Harvard Law School.

As the Biden Administration continues to roll out its agenda, holdouts from the previous administration have continued political fights over unions. Currently, the Republican Party has a majority on the Federal Labor Relations Authority and is continuing to attempt to eliminate the federal immigration judges union. The union, the National Association of Immigration Judges, represents about 500 immigration judges. This persists despite the Biden administration’s recognition of the union last year, which theoretically should have ended the dispute. The FLRA currently has a 2-1 Republican majority and seeks to continue litigation over the union’s status instead. This continues despite there being a record number of over 1.6 million immigration cases, pushing the typical wait for a party litigant to nearly five years for a hearing. The Department of Justice, which oversee these Article I judges, did not comment. The union’s President, Mimi Tsankov, said, “This is a poorly reasoned decision and overrules the will of the parties. It is rooted in the majority FLRA board members’ anti-union bent and reflects a deep desire to silence immigration judges.”

A similar trend has continued in the Equal Employment Opportunity Commission, where the Republican Party maintains a similar majority on its leadership panel, with a 3-2 voting bloc. This has created difficulty on pressing issues of the current administration’s agenda, such a employer wellness plans, sexual harassment guidance, and employer pay data reporting. One Commissioner, Andrea Lucas, has been a swing vote during this most recent period of her term, mitigating at least some of the partisanship gridlock, especially as it pertains to disability law initiatives. A Bloomberg analysis shows that she is responsible for 100% of all split decisions, 37 of them between October 2020 and November 2021, voting with Democrats 12 times. In an email, Commissioner Lucas said, “There is still a lot of important work that I believe can be done on a bipartisan basis, from more COVID-19 guidance to updated guidance on harassment, pregnancy, and caregiver discrimination to rules related to wellness programs, among other topics, and I hope that we will continue to work together on these and many other issues.”

The attorney for Black employees at Tesla has recently spoken out, describing the company as “like working on a plantation.” In an interview with Bloomberg, civil rights attorney Larry Organ, described the saga of racial harassment at Tesla that led to a $137 million jury judgement in one case, a record high judgement. One employee was subject to being called the n-word on the production line, groups of harassers “flashed gang signs at him”; one coworker threatened “to cut [him] up into pieces and send his body parts to his family.” One employee, DeWitt Lambert, was forced to first arbitrate the case because of the mandatory arbitration agreement there. The arbitrator said that because Lambert had used variations of the n-word himself with Black friends, hearing others say it was not workplace racial harassment. Tesla has said it is “absolutely against any form of discrimination, harassment or unfair treatment of any kind.” The company specifically denounced the attorney himself, saying in an unsigned blog post, “The trial lawyer who filed this lawsuit has a long track record of extorting money for meritless claims and using the threat of media attacks and expensive trial costs to get companies to settle.” Attorney Organ says he is not done; calls from current and former Tesla workers are helping him build a class-action lawsuit against the company.

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