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Demolition at the Labor Department, too

Demolition at the Labor Department, too
© Greg Nash

Even as our democracy reels from its departing commander in chief’s last-gasp onslaught, his labor secretary continues to do damage to the worker protection mission he’s duty-bound to honor — right up to his last day in office.  

The catalog of Eugene ScaliaEugene ScaliaBiden should keep the new commonsense independent contractor rule Demolition at the Labor Department, too AFL-CIO calls on Trump to resign or be removed from office 'at once' MORE and the Trump administration’s U.S. Department of Labor (DOL) assaults on workers is long and won’t be repeated here, except for one that’s inflicted especial pain: the Scalia Labor Department’s failure to combat the often lethal workplace hazards COVID-19 presents. On this account alone, history will not judge Scalia charitably. 

The latest victim of Scalia’s “wrecking ball” is the now-former leader of the department’s West Coast legal offices, regional solicitor Janet Herold, with whom co-author Michael Felsen worked with while he was the regional solicitor for New England. Among her many duties, she headed a team that litigated a hotly contested pay discrimination case against Silicon Valley heavyweight Oracle Corp. The lawsuit, filed at the end of the Obama administration, followed a massive investigation by the department that found Oracle had underpaid women, Asian and African American workers to the tune of about $400 million

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Scalia showed interest in the case as soon as he took the reins at the DOL in September 2019. In December, shortly before the scheduled trial, Herold learned he had communicated with a former colleague who called him at home — ensuring that the communication didn’t appear in government logs — to discuss Oracle’s interest in a settlement, and that Scalia had tried to settle the case for under $40 million. As the responsible attorney litigating the case on the ground, Herold strenuously objected.

Oracle chose not to settle, and the case went to trial. Before the judge issued his decision, Herold was told Scalia was transferring her from the Solicitor’s Office in Los Angeles, where she lives with her family, to head up the Occupational Safety and Health Administration’s (OSHA) regional office in Chicago. Such an involuntary transfer is highly irregular. And while Herold has extensive experience in litigation and substantive areas, like federal wage and hour and discrimination law, she has no background running an OSHA office. She was surely not the person indispensably needed, or most qualified, to take the Chicago job.

All of which suggested something seriously amiss. This past August Herold filed a whistleblower complaint claiming that Scalia ordered the reassignment in retaliation for her objections to his involvement in the Oracle case and for her vigilance in enforcing worker protection laws. 

She’s had the support of Sen. Patty MurrayPatricia (Patty) Lynn MurrayOvernight Health Care: 50 million coronavirus vaccines given | Pfizer news | Biden health nominees Rand Paul criticized for questioning of transgender health nominee Biden health nominee faces first Senate test MORE (D-Wash.) and Rep. Rosa DeLauroRosa DeLauroKey Democrat unveils plan to restore limited earmarks Acting chief acknowledges police were unprepared for mob Democratic women sound alarm on female unemployment MORE (D-Conn.), who asked the Labor Department’s Acting Inspector General (IG) to investigate whether Scalia politically interfered in the Oracle litigation (Oracle’s executives are close with the Trump White House) and whether he’s unlawfully retaliating against Herold. And the agency tasked with reviewing Herold’s whistleblower complaint asked twice that the reassignment be put on hold while it investigates it, signaling it’s found reasonable grounds to believe Scalia has committed a prohibited personnel practice.

 As for the Oracle case itself, despite evidence of significant pay disparities disfavoring women and people of color, the judge ruled in the company’s favor. Seasoned career lawyers in the department’s national office reviewed the decision. They vigorously recommended appeal since the decision wrongly introduced a heightened standard for proving pay bias and would set a problematic precedent for future enforcement efforts. They prepared and were ready to file a 117-page appeal brief, but on Dec. 3, DOL political appointees who answered to Scalia announced their decision to abandon the appeal. In that moment, a case that is potentially worth hundreds of millions of dollars to Oracle workers who suffered pay discrimination evaporated. 

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Last month, Herold declined to accept the involuntary transfer. Consequently, her employment was terminated on Jan. 11. This, despite the fact that the independent agency reviewing her whistleblower complaint requested a stay of her reassignment until after Jan. 20, because their inquiry into Scalia’s alleged prohibited actions is ongoing.  The secretary is departing in a few days. Nonetheless, he insisted that Herold lose her job before he goes.

While spokespeople for the Trump DOL protested Scalia’s innocence, it’s hard to see his zeal in removing Herold from her post as even remotely justified. She served the department with distinction since 2012. Among his earlier, now-overshadowed abuses of power, Trump pardoned criminals who undermined our security and our democracy. His labor secretary has now fired a devoted public servant for doing her job.  

The whistleblower investigation will continue, and maybe the IG will investigate too. If those inquiries reveal that Scalia abused his office in connection with either Oracle, or Herold, or both, he should pay the appropriate price. Regrettably, workers in the United States have already paid too high a price for his allegiance to a president, and to causes other than theirs. 

Michael Felsen was the Labor Department’s New England regional solicitor from 2010-2018, and is currently a fellow at Justice at Work. Catherine Ruckelshaus is the National Employment Law Project’s general counsel.