To Confirm or Not? That May Be the Question for Some DOL Directors

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By Jay-Anne B. Casuga and Ben Penn

Now that Labor Secretary Alexander Acosta is sworn in, the Senate must work to confirm more than a dozen other leadership positions within the Labor Department.

At least three politically appointed DOL director positions, however, don’t require the chamber’s nod, but whether they should poses a bit of a constitutional law conundrum.

These directors lead the DOL’s Office of Federal Contract Compliance Programs, Office of Labor-Management Standards and Office of Workers’ Compensation Programs. Those subagencies, respectively, monitor affirmative action and nondiscrimination compliance among federal contractors, enforce union disclosure requirements, and administer disability pay. All three directors would report directly to Secretary Acosta.

Whether those officials require Senate confirmation presents a “collision of politics and law,” John Fox, a DOL policy official during the Reagan administration, told Bloomberg BNA.

Given the difficulties the Trump administration has had in moving its appointees through Congress, the “smart political play for the White House would be to subject as few political appointees as possible” to Senate confirmation, said Fox, now a management attorney with Fox, Wang & Morgan in San Jose, Calif. But if those directors require confirmation, then skipping that step could leave the administration vulnerable to lawsuits challenging actions taken by improperly seated officials, he said.

The Obama administration didn’t have to deal with this issue for those three leaders because they all reported to the Senate-confirmed assistant secretary for the Employment Standards Administration. The Obama DOL eliminated the ESA in late 2009, after its subagency directors were in place. The 44th president however, was plagued by improper timing of his appointment of a temporary National Labor Relations Board member.

Two Agencies Especially on Radar

Stakeholders have been keeping an eye on the OFCCP and the OLMS in particular, because their regulatory and enforcement activities can have significant impacts on employers, unions and workers.

The agencies, whose past priorities have been linked to the political party in power, will likely receive even more scrutiny once the DOL appoints the directors.

But do they need Senate confirmation? It’s difficult to say, constitutional law professors told Bloomberg BNA.

It all depends on whether the agency heads are considered “inferior officers” under the appointments clause of the U.S. Constitution.

Noel Canning Alert?

If an official is improperly seated without the required confirmation under the appointments clause, then a lawsuit could be brought challenging the appointment and all actions the appointee took, Fox said.

A similar controversy was at the heart of the U.S. Supreme Court’s 2014 Noel Canning decision. In that case, a unanimous court held that President Barack Obama lacked the authority to make recess appointments to the NLRB while the Senate was holding pro forma sessions.

Noel Canning effectively invalidated hundreds of NLRB decisions and enforcement actions, requiring a later board to review many already decided cases and issue new rulings.

An improperly seated OFCCP director then would mean that everything done at his or her direction, including regulations or internal directives, would be invalid, Fox said.

The OFCCP enforces a number of rules designed to protect minorities, women, veterans and people with disabilities. Some of the agency’s internal directives dictate how it will conduct compliance audits of contractors, and how it evaluates employer information and data for possible discrimination, such as pay discrimination.

Avoiding Union-Auditing Controversy?

The next OLMS leader’s appointment is likely to attract controversy for another reason. The GOP Congress has expressed interest in partnering with Trump’s DOL to bolster the office’s union-auditing capacity. Prior Republican administrations have staffed up the office, with a greater focus on uncovering corruption at large international unions.

Critics of this strategy have said the OLMS was being leveraged to unnecessarily harass unions, while proponents—including some Trump transition officials—argued it was an effective mechanism to ensure members’ dues are lawfully spent.

An OLMS director with a track record of favoring the strict policing of union spending would raise the eyebrows of Senate Democrats.

If that’s the type of candidate Acosta has in mind, “they’re going to put somebody on OLMS that they’re not going to want to have to go through the Senate HELP Committee” for the confirmation process, Seth Harris, a former acting labor secretary under Obama, told Bloomberg BNA.

Representatives for the HELP Committee’s GOP and Democratic offices did not provide a comment.

Officers Previously Sheltered Under Subagency

The law that established the Labor Department requires that the secretary of labor be appointed by the president with the advice and consent of the Senate.

Most of the agency’s assistant secretaries of labor also must receive Senate confirmation.

The directors of the DOL offices at issue have historically been classified as deputy assistant secretaries of labor, which don’t require confirmation.

The ESA was established during the Nixon administration ostensibly to “consolidate functions and greater oversight and homogeneity of operations” in an expanding DOL, Fox said.

One of the prime reasons for the ESA was to “cloak” all sub-Cabinet agency heads not reporting directly to the labor secretary to keep them from the reach of the appointments clause, Fox said.

Lawrence Lorber, who was OFCCP director under President Gerald Ford and is now senior counsel at Seyfarth Shaw in Washington, similarly told Bloomberg BNA that the ESA acted as a “buffer” between the labor secretary and the OFCCP, the OLMS and the OWCP.

The ESA also encompassed the Wage and Hour Division, but the WHD’s administrator position had historically required Senate confirmation.

When the ESA was eliminated in November 2009, the three directors began reporting directly to the labor secretary.

Bloomberg BNA reported at the time that some observers questioned whether the director positions would be considered assistant secretaries of labor and thus need Senate confirmation.

DOL didn’t respond to Bloomberg BNA’s requests for comment.

Are Directors ‘Inferior Officers’?

The constitutional appointments clause provides that the Senate must confirm presidential appointments of “officers,” professor Michael Gerhardt of the University of North Carolina School of Law told Bloomberg BNA. Gerhardt specializes in constitutional law and serves as the director of the school’s program in law and government.

The Supreme Court has held that officers exercise “significant authority pursuant to the laws of the United States.”

Officers are broken down into two categories: principal and inferior.

“Principal officers” must be appointed by the president and confirmed with the advice and consent of the Senate, Gerhardt said. Principal officers generally are Cabinet secretaries, federal judges and ambassadors.

“Inferior officers” also must be confirmed by the Senate, unless Congress directs otherwise, Alan Morrison, associate dean for public interest and public service law at the George Washington University School of Law, told Bloomberg BNA.

In other words, Congress must pass a law that gives the president or a department head the power to directly appoint that inferior officer without the advice and consent of the Senate.

“There has to be a statutory exception,” he said.

DOL directors likely wouldn’t be considered principal officers. But would they be considered “inferior officers” or non-officers?

“It’s going to be harder to make that call,” Gerhardt said.

No Exception for OFCCP Director?

The Supreme Court has listed several factors to determine who qualifies as an inferior officer. In one 1988 case, the court held that an inferior officer is someone who’s subject to removal by a higher officer, has limited duties and tenure, and has narrow jurisdiction.

More recently, in 1997, the court held that an inferior officer is someone who is “directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate.”

Using the OFCCP as an example, the director has arguably been directed and supervised by the labor secretary since the elimination of the ESA.

If the OFCCP’s director is making rules and final determinations under the laws the agency enforces, then “he or she almost certainly is an officer of the United States,” Morrison of GW Law said.

“And absent a statute providing for an appointment by the Secretary of Labor, it seems likely that the position will require Senate confirmation,” he said.

Morrison reviewed Executive Order 11,246, Section 503 of the Rehabilitation Act and Section 4212 of the Vietnam Era Veterans’ Readjustment Assistance Act—the laws enforced by the OFCCP—and said none of their provisions “satisfies the inferior officer exception in the Appointments Clause.”

EO 11,246 does contain a provision stating that the labor secretary “may delegate to any officer, agency, or employee in the executive branch of the government, any function or duty of the secretary” under the order.

However, an executive order “does not satisfy the Appointments Clause’s alternative method of appointment for inferior officers,” Morrison said.

No Push for Requiring Confirmation

So far, there have been no signs of a push to require Senate confirmation for the three DOL director positions from the White House or either political party.

The issue also doesn’t seem to be high on the priority list for the business community.

“I don’t think that this issue is really on the radar among the folks in the employer community that I’m dealing with,” David Fortney, a former acting labor solicitor during the George H.W. Bush administration, told Bloomberg BNA. Fortney is now a management attorney with FortneyScott in Washington and a co-chair of the OFCCP Institute.

Lorber of Seyfarth Shaw said one possible effect of requiring confirmation for the positions would be to increase congressional oversight of the agencies. He added that he too wasn’t aware of any business groups advocating for such a requirement.

Representatives of several civil rights groups including the Leadership Conference on Civil and Human Rights, the American Association for Access, Equity and Diversity and the National Women’s Law Center told Bloomberg BNA that they aren’t currently calling on Congress to expand the list of DOL officials who would require Senate confirmation. The current executive director of AAAED is Shirley Wilcher, who was OFCCP director under the Clinton administration.

It’s important for the directors to have “meaningful authority, clear channels of communication with the secretary and the ability to make policy,” Emily Martin, general counsel and vice president for workplace justice at the National Women’s Law Center in Washington, told Bloomberg BNA.

“Senate confirmation doesn’t necessarily guarantee that,” Martin said.

To contact the reporters on this story: Jay-Anne B. Casuga in Washington at jcasuga@bna.com; Ben Penn in Washington at bpenn@bna.com

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

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