Acosta Labor Department May Go Light on Litigation

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By Chris Opfer

Labor secretary nominee Alexander Acosta has shown an interest in enforcing laws without engaging in courtroom battles. That may signal a DOL that’s more palatable to employers if he’s confirmed to the post.

The employer community has been expecting the Labor Department to take a more collaborative approach to enforcement of wage-and-hour, workplace safety and other laws since President Donald Trump was elected in November. There’s still not much information on how Acosta views big-ticket issues, such as a pending rule to make some 4 million workers newly eligible for overtime pay, but his prior government service and public statements suggest that the former prosecutor may look to ensure compliance without pursuing litigation.

Acosta as an assistant attorney general touted a “new approach” to police civil rights cases, focusing on collaborations with police departments to help them develop operating procedures during ongoing investigations. He also steered the Justice Department’s efforts to help businesses and government employers voluntarily comply with discrimination laws through outreach, technical assistance and mediation.

“Rather than adopting a purely litigation-driven enforcement model, our experience demonstrates that a cooperative model produces much better and faster results,” Acosta told a House panel in 2005, referring to the police investigations.

Employers and their advocates would welcome the same approach at the DOL. Management-side attorneys criticized the department under former President Barack Obama for what they called heavy handed enforcement tactics. That doesn’t mean they expect Acosta to completely abandon lawsuits, the threat of which some worker advocates say is an important tool in protecting employee rights.

“I think it factors into employers’ perceptions of the agency’s enforcement priorities,” Paula Brantner, a senior adviser for Workplace Fairness, told Bloomberg BNA, regarding enforcement lawsuits. “It shows we have an agency that is taking action and not just paying lip service to some of these things.”

‘Less Rancor.’

Acosta served as assistant attorney general for civil rights for about two years before being tapped as U.S. Attorney in Miami. He ran the Justice Department’s civil rights division, which enforces workplace discrimination laws covering federal employers, disability access requirements and voting rights protections, among other things.

He touted various alternatives to litigation when he went before a House Judiciary subcommittee in 2005. That included mediation, voluntary compliance programs and guidance publications designed to help business owners and housing providers meet their responsibility to make properties accessible to disabled people.

Acosta noted in particular that the mediation process “brings more relief to more individuals faster and with less rancor than traditional litigation.” He also highlighted a telephone assistance program that allows employers and workers to reach out to the DOJ for assistance in resolving questions about workplace discrimination laws.

Acosta also told the House panel about a “new approach” he helped develop for the Justice Department to proactively handle claims of systemic civil rights abuses by police departments. “Rather than husband findings of potential violations for use in court, we work hard to keep target agencies informed of our findings and progress, so that they can begin to develop and implement effective solutions,” he said.

Still, lawsuits remained an important part of the department’s overall enforcement strategy. Acosta cited in particular an 85 percent uptick in housing discrimination lawsuits alleging a pattern or practice of bias over the year and a $1.1 million jury verdict in a case against a group of landlords who allegedly sexually assaulted tenants.

“I think Alex is a problem solver,” Kendall Coffey, a Miami attorney who has faced off against Acosta in a couple of cases and served with him on a judicial nomination committee in Florida, told Bloomberg BNA. “I don’t think he’d be quick to pull the trigger if he believes measures short of litigation would address the problem.”

Coffey has previously represented the Trump Organization in court battles related to the Trump National Doral golf resort in South Florida.

Acosta has also expressed support for clear rulemaking over case decisions in setting federal labor policy. After a short stint on the National Labor Relations Board, he told a group of attorneys in Miami that the board should use regulations to clarify legal interpretations.

“One solution to reduce caselaw oscillation is increased reliance on rulemaking in lieu of adjudication,” he said.

Businesses Prefer Guidance

Employer groups and management lawyers often griped during the Obama years that the Labor Department was more concerned about trying to catch wrongdoers red-handed than helping businesses comply with the maze of federal laws and regulations it enforces. A common refrain was that the vast majority of employers want to play by the rules but many don’t have the resources to keep up with changing interpretations and gray areas that shift depending on who is in the White House.

“There are obviously bad employers out there, but don’t let the few outliers dictate enforcement for the entire employer community,” Michael Lotito, co-chair of Littler Mendelson’s Workplace Policy Institute, told Bloomberg BNA. “It’s not relief from compliance they’re looking for, but relief from the constant threat of lawsuits and investigations.”

The Labor Department’s Wage and Hour Division and Office of Federal Contract Compliance Programs were particularly active in the Obama administration. The WHD says it recovered nearly $1.9 billion in back pay for workers denied minimum wages, overtime and family and medical leave and other protections over the last eight years. The OFCCP during the same time says it obtained $85.9 million for federal contractor workers and job applicants alleging discrimination.

That money came from a combination of investigations, consent decrees, settlements and court verdicts. Still, Workplace Fairness’s Brantner said it’s tough to overestimate the power of being able to bring cases all the way through the courts.

Brantner said OFFCCP’s focus on enforcement was “a refreshing change and certainly put contractors on notice.” She said that kind of emphasis is particularly important in areas like workplace safety, where employees are largely barred from bringing private lawsuits by state workers’ compensation laws.

Although Acosta will bring his own approach to enforcement, Brantner said she doesn’t expect him to simply roll over for businesses.

“We’re expecting he will take a more measured approach than resorting immediately to litigation,” Brantner said. “But, the word we are getting is that he does believe in enforcing the laws at the agency and is not going to come in with a mission of completely gutting enforcement so employers can violate the law without any consequences.”

To contact the reporter on this story: Chris Opfer in Washington at copfer@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com

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