Client Bulletin #417


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There have been two recent announcements that will be of interest to corporate counsel and Human Resources professionals.

Farewell to the ESA

The U.S. Department of Labor plans to abolish the Employment Standards Administration, according to a report from the Bureau of National Affairs. The ESA houses the Wage and Hour Division, the Office of Labor-Management Standards, the Office of Federal Contract Compliance Programs, and the Office of Workers’ Compensation Programs. According to the BNA report, the change appears to be little more than removing an additional layer of management: the programs will continue to exist, but the heads of these divisions will now be Assistant Secretaries and will report directly to the Secretary of Labor. (Currently, these four programs are managed by Deputy Assistant Secretaries who report to the Assistant Secretary over ESA.) The report says that the change is slated to take effect November 8, 2009.

An internal DOL memorandum reportedly advised employees that “for the vast majority of ESA employees there will be little impact” and that “the resulting streamlined organizational structure will significantly improve policy decision-making with respect to the four individual programs.”

Obama will nominate NAACP attorney to head EEOC

President Barack Obama has announced his intention to nominate Jacqueline A. Berrien as Chair of the U.S. Equal Employment Opportunity Commission. Ms. Berrien is currently the associate director-counsel of the NAACP Legal Defense and Educational Fund and has previously worked as a staff attorney for the Lawyer’s Committee for Civil Rights and the American Civil Liberties Union.

During the presidential campaign, candidate Obama was critical of what he saw as lax enforcement of the civil rights laws by the EEOC. If confirmed by the Senate (which is expected), the EEOC under Ms. Berrien’s leadership can be expected to become significantly more aggressive than it has been under the Bush Administration, with more “cause” determinations, more cases going to litigation, and more class actions.

Ms. Berrien would assume the Chair position from Stuart Ishimaru, who has served as Acting Chair during the Obama Administration. Currently, there are two vacancies on the five-person Commission, and the Acting Vice Chair, Christine Griffin, has been nominated for deputy director of the Office of Personnel Management. The past Chair, Naomi Earp, served as a member of the EEOC after Mr. Ishimaru was appointed Acting Chair, and she resigned from the EEOC entirely in June 2009.

Constangy, Brooks & Smith, LLP has counseled employers on labor and employment law matters, exclusively, since 1946. A “Go To” Law Firm in Corporate Counsel and Fortune Magazine, it represents Fortune 500 corporations and small companies across the country. Its attorneys are consistently rated as top lawyers in their practice areas by publications such as Chambers USA, Super Lawyers, and Top One Hundred Labor Attorneys in the United States. More than 100 lawyers partner with clients to provide cost-effective legal services and sound preventive advice to enhance the employer-employee relationship. Offices are located in Georgia, Florida, South Carolina, North Carolina, Tennessee, Alabama, Virginia, Massachusetts, Missouri, Illinois, Wisconsin, Texas and California. For more information, visit


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