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Scalia nomination signals continued employer-friendly bent at Labor

Posted On: Jul. 23, 2019 6:49 AM CST

Employer friendly focus

A new top official does not mean the U.S. Department of Labor will veer from its course of issuing policies favorable to employers on issues including overtime and joint employment, say experts.

Former Labor Secretary R. Alexander Acosta was forced to resign his position earlier this month following controversy surrounding his brokering a perceived lenient deal for wealthy sex offender Jeffrey Epstein in 2008, when he was a federal prosecutor.

Deputy Secretary of Labor Patrick Pizzella was initially tapped by President Donald Trump as acting DOL secretary, effective July 20.

Then last week, President Trump announced he had nominated Eugene Scalia, a partner in the Washington office of Gibson, Dunn & Crutcher LLP and son of late Supreme Court Justice Antonin Scalia, as Mr. Acosta’s successor.

Several observers say they have high regard for Mr. Scalia, but a long vetting process could significantly limit his tenure.

Meanwhile, the DOL is expected to pursue the department’s previously announced policy on issues including overtime and joint employment.

In May, the department issued a long-awaited overtime proposal that increased the salary level below which workers must be paid overtime, but at a level that was lower than the one proposed by the Obama administration.

The DOL also announced a proposal to “revise and clarify” the issue of joint employers in April.

“With regard to the proposed rules that are already publicly issued, (Mr. Scalia) is likely to stay the course,” said Paul DeCamp, a member of Epstein Becker & Green P.C. in Washington.

“He’s not required to, but I would expect him to proceed with final results that are more or less in line with what the department has already proposed,” although “it’s really a decision that he needs to make,” Mr. DeCamp said.

“Gene Scalia is probably much more of a scholar on those topics than almost anyone in the DOL, so he’s probably quite intimate with all these topics and all their pros and cons. But I don’t think those are doctrinaire topics,” said Robert A. Boonin, a member of law firm Dykema Gossett PLLC in Detroit.

“Most of what the department was trying to do was to resurrect the precedent that had long been in place until some changes were made in the prior administration, so getting back on the traditional course is what I think he will be more comfortable with,” Mr. Boonin said. “We’re pretty much on the same course. It’s just a different personality” that is involved.

David E. Dubberly, a member of law firm Nexsen Pruet LLC in Columbia, South Carolina, said, “I’d expect him to continue the same policies and to bring common sense ideas to bear on these issues like joint employment and employee exemption” for overtime, whether it is for employees or independent contractors.

“I don’t think he’ll be any less business-friendly than Alex Acosta, so I don’t think we’ll see a return” to positions taken during the Obama administration, said Eric B. Meyer, a partner with FisherBroyles LLP in Philadelphia.

Employment attorneys praise Mr. Scalia, who co-chaired Gibson Dunn’s labor and employment practice group for 12 years. Mr. DeCamp, who has worked with Mr. Scalia, said he is “very knowledgeable about the full spectrum of laws at the DOL, and he’s going to be a terrific secretary of labor.”

“I’ve seen him in a number of roles through various legal forums, and he is one impressive person,” said Mr. Boonin. “He’s extremely bright and extremely articulate and knows how to analyze things and figure out how to resolve issues and get things done. He’s certainly amply qualified for the position,” he said.

“Gene Scalia’s a good guy,” said Michael Lotito, co-chair of Littler Mendelson P.C.’s Workplace Policy Institute in San Francisco. “He’s been practicing management-side labor all his life. He knows the issues.”

Pointing to his background as DOL solicitor, Mr. Lotito said, “It’s very important to have somebody who’s been in the agency” because it is very difficult to manage, with 13,000 or 14,000 career people staffing it and a small number of political appointments.

“The career people can be difficult,” and the department regions across the country are not consistent in how they do things, Mr. Lotito said. There is “always a certain amount of tension” between the career employees and political appointees, so it is important to have someone heading the agency who has “an understanding of those kind of dynamics,” Mr. Lotito said.

The head of the agency needs to practical skills in addition to policy expertise, he said. Mr. Scalia “brings that perspective. He understands the agency, he understands how to execute, and he understands the issues.” In addition, he said, “He’s very tuned into the president’s agenda.”

However, in a tweet last week, Senate Minority Leader Charles Schumer, D- N.Y., said President Trump “is missing an opportunity to nominate a fighter for workers, like a union member, to be America’s next Labor Secretary. Instead, he has again chosen someone who has proven to put corporate interests over those of worker rights.”

Some question how long the vetting process may take. The Trump administration “has not been known for quick confirmations,” said Mr. Lotito. “There’s been all kinds of issues with that,” he said. “Once we get to 2020, all bets are off, so we have a very short period of time to get a tremendous amount of work done.”

“Hopefully they can make this a priority in the Senate and confirm him by early fall, and give him at least a year in the position prior to the election,” said Alfred B. Robinson Jr., a shareholder with Ogletree, Deakins, Nash, Smoak & Stewart P. C. in Washington.