Former Wage-Hour Chief Is Contender to Run Division Under Acosta

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By Ben Penn

Alexander Passantino is a leading contender to run the Wage and Hour Division following a White House interview last week with labor secretary nominee Alexander Acosta, sources familiar with the meeting told Bloomberg BNA.

Passantino, who was acting WHD administrator for the final year of the George W. Bush administration, is now a partner at Seyfarth Shaw LLP, a management law firm in Washington.

Acosta was said to have joined White House officials to interview a batch of candidates for DOL vacancies March 23, a day after his first Senate confirmation hearing.

Several sources, who spoke on condition of anonymity, said Passantino is considered a strong possibility to run the agency that enforces minimum wage, overtime and family-leave laws. The WHD chief will be at the center of controversial policy choices under President Donald Trump, including the potential revision of former President Barack Obama’s pending regulation to expand overtime access and a possible shift in focus to assisting employers with compliance.

The White House will still likely have ultimate say on the WHD position. Other candidates may overtake Passantino as the administration continues to review its options.

Passantino, who was deputy WHD administrator from 2006 to 2008, was at the top of many business groups’ recommendations for chief of the division during the Trump transition. But after Trump’s first labor secretary pick—Andrew Puzder—withdrew Feb. 15, it was initially unclear whether Passantino’s name would remain in consideration.

Passantino didn’t respond to a request for comment and an Acosta spokeswoman didn’t provide a statement. “We don’t comment on personnel issues,” a White House spokesman told Bloomberg BNA.

Offsetting Lag at DOL

A Senate panel will vote March 30 on whether to advance Acosta’s nomination to the Senate floor. It’s widely expected that Acosta will be confirmed, but it may not happen until late April at the earliest.

Interviewing WHD administrators and other top personnel is seen as an effort to offset the lag at DOL stemming from Puzder’s withdrawal.

One source told Bloomberg BNA that Acosta made it known that he wanted to interview candidates for WHD head and other open positions, rather than allow the White House to control the vetting without his involvement.

If Acosta is confirmed, subcabinet nominees may be named shortly thereafter. That includes deputy secretary, solicitor and administrators of the WHD and Occupational Safety and Health Administration.

Opposed Overtime Rule

Passantino in his role representing employers at Seyfarth Shaw opposed the Obama administration’s overtime rule, which was intended to make 4.2 million workers newly eligible for time-and-a-half pay. The controversial regulation doubled the salary threshold below which workers qualify for overtime to $47,476.

Testifying at a July hearing before the House Education and the Workforce Committee, Passantino said the regulation may limit workplace flexibility by forcing employers to cap workers’ use of mobile technology to avoid risk of overtime liability.

The WHD issued the overtime rule last May, but a federal judge temporarily placed it on hold in November. The division’s next administrator could be tasked with promulgating a new rule to strike a compromise between the current minimum level for overtime exemption ($23,660) and the rule’s $47,476 threshold that business groups and Republicans called too high, too fast.

If Passantino were to be nominated, he could face questions at a confirmation hearing on a 2008 Government Accountability Office report that was critical of WHD operations under his watch. The agency “frequently responded inadequately to complaints, leaving low wage workers vulnerable to wage theft,” the GAO concluded.

—With assistance from Chris Opfer

To contact the reporter on this story: 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

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