Will business see a kinder Labor Department with a new chief?
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When Alexander Acosta was sworn in as the new secretary of labor on April 28, he assumed this office later than any other secretary of labor in a new administration. Considering this delay, employers are hopeful that Secretary Acosta will get to work on his to-do list by quickly addressing several pending substantive issues that the Department of Labor (DOL) must address. But perhaps just as important as what Secretary Acosta must tackle is how he goes about doing it. In other words, it is Secretary Acosta’s overall approach to enforcement of the laws under DOL’s jurisdiction that has the potential to set his DOL apart from that of the previous administration.

Under the leadership of the most recent secretaries of labor, Hilda Solis and Thomas PerezThomas Edward PerezClinton’s top five vice presidential picks Government social programs: Triumph of hope over evidence Labor’s 'wasteful spending and mismanagement” at Workers’ Comp MORE, the DOL was often criticized — mostly by the business community and its allies — for its punitive approach to enforcement. Indeed, it was no coincidence that Solis famously quipped that “there is a new sheriff in town,” in her first speech upon being confirmed. Thus, the tone was established early on that if DOL was the sheriff, then employers were the bad guys.

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Among other issues, critics bemoaned DOL’s aggressive and protracted investigations, its use of conclusory and sensational press releases to shame employers into compliance and its overreliance on statistical analyses to try to establish disparate impact discrimination. Additionally, under Solis and Perez, DOL’s Wage and Hour Division (WHD) abandoned the cooperative opinion letter process, which permitted employers to ask for DOL’s compliance assistance under particular circumstances.

 

Instead, DOL replaced opinion letters with “administrator’s interpretations” that were issued without public comment and which stretched the bounds of the law. In and of itself, trashing the opinion letter process and its good faith, collaborative approach to compliance sent an unambiguous message to employers about how they were viewed in the eyes of the administration.

Enter Secretary Acosta, who has the opportunity to return some much-needed balance to DOL. Few question Secretary Acosta’s bona fides — he is a former member of National Labor Relations Board and former assistant attorney general for civil rights at the U.S. Department of Justice — but his views on labor policy issues are not well known. Fortunately, some of Secretary Acosta’s initial actions will provide some clues.

For starters, the individuals whom Secretary Acosta will eventually choose to run the various offices housed within the department will play a significant role in how the new DOL intends to achieve compliance with federal labor laws. These officials will be primarily responsible for determining how laws and regulations will be enforced, they will establish the tone and tenor for investigations and settlement discussions, and they will decide which guidance programs or materials will be helpful to the public.

Any new approach to enforcement will also manifest itself in how Secretary Acosta and his lieutenants handle the various substantive issues currently before DOL. Take the Occupational Safety and Health Administration’s (OSHA) recent announcement delaying enforcement of its new crystalline silica standard, applicable to the construction industry, in order to “conduct additional outreach and provide educational materials and guidance for employers.” Although this decision was made prior to Secretary Acosta’s arrival, one wonders whether this acknowledgement of a cooperative, two-way approach to compliance is a harbinger of things to come.

Other pending matters will provide a glimpse into DOL’s governing philosophy. Will DOL revert to the previous bright line standard that had been in place for decades regarding the reporting of persuader activity? Then there were Secretary Perez’s dramatic changes to the rules governing overtime, which have been enjoined from going into effect by a federal court in Texas. Secretary Acosta has previously opined that some increase in the salary basis threshold is probably past due. Will DOL abandon the current appeal of the injunction? Will it engage in new rulemaking? Secretary Acosta’s handling of these issues will be an important indicator of his view of the DOL as a regulatory and enforcement agency.

Of course, having a particular enforcement philosophy and actually being able to implement that philosophy is two separate discussions. Secretary Acosta may find his ability to implement change may be hampered by looming budget cuts and career staff who may not be eager to undo some of the work they performed over the past eight years.

So even with new officials in place, it may take some time before any new DOL enforcement philosophy becomes evident. In the meantime, the business community is hopeful that Secretary Acosta and DOL will focus less on hauling employers into court and more on assisting employers to navigate the complex web of federal wage and hour law, workplace safety requirements and anti-discrimination and affirmative action obligations. Such cooperation might seem like an aberration in Washington, D.C., these days, but it would be a welcomed change.

 

James J. Plunkett is a senior government relations counsel in the Washington, D.C., office of Ogletree Deakins. He previously served as director for labor law policy at the U.S. Chamber of Commerce.


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