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By Ben Penn
The new occupant of the Labor Department’s No. 2 office is facing lofty expectations from the business community that may outweigh his actual influence.
Employers and conservatives are familiar with and optimistic about Patrick Pizzella, who was sworn in as deputy labor secretary April 17. Pizzella endeared himself to management lawyers while a senior DOL official in the George W. Bush administration and during his more recent term as a member of the panel that settles federal workforce labor disputes.
The business community is hoping that Pizzella’s arrival, after his nomination languished in the Senate for 10 months, produces revisions of Obama-era rules and enforcement tactics. As yet, the agency hasn’t moved as quickly as some had expected to slash regulations and establish new policy positions under the deliberate leadership of Labor Secretary Alexander Acosta.
Pizzella’s employer-leaning pedigree and hard-charging style by no means guarantees he’ll now be checking items off the business lobby’s labor agenda. Acosta’s grip on the policy reins, at least until more agency heads get confirmed, means clarity may be months away on such matters as wage-hour and worker center enforcement strategies or regulations to expand overtime coverage and require electronic reporting of injuries.
Employer representatives perceive Pizzella as a more aggressive advocate of pro-business policies than Acosta. They see him as more in the mold of President Donald Trump’s first choice for labor secretary, fast-food executive Andrew Puzder.
Puzder, who withdrew his nomination when it became clear he didn’t have enough Senate support for confirmation, told Bloomberg Law via email that Pizzella was also slated to serve as his deputy secretary, before Acosta came on board. “Alex and I both agreed that he was the right guy for that job,” Puzder wrote.
An administration official told Bloomberg Law that Pizzella’s role will be focused on serving as the chief operating officer, the traditional function of a deputy secretary in any agency.
“I think it has been decided that the role is budget, management, and execution, but it’s not policy development or personnel,” the official said, describing what the secretary has delegated to Pizzella. “Secretary Acosta picked Pat, and I think it’s going to be a great relationship because you have a strong policy person with the secretary, and you’re going to have a strong implementer, execution guy in Pat.”
This could mean that for the business representatives growing impatient with the department’s cautious approach to controversial policy, Pizzella’s entrance won’t cure all ills.
“I think people are maybe having too many expectations of what he can do and when he can do it,” Tammy McCutchen, who worked alongside Pizzella at the Bush DOL and now represents businesses at Littler Mendelson in Washington, told Bloomberg Law. McCutchen still sees Pizzella as having “significant impact” because of his intimate familiarity with the agency’s bureaucracy, but she cautioned that the policy side remains an open question.
The agency is now in the midst of working with the Office of Management and Budget on a controversial rescission proposal seeking to claw back funds for fiscal year 2018 that Congress already authorized. “I think the rescission could be the first thing that he deals with,” Seth Harris, a deputy labor secretary under President Barack Obama, told Bloomberg Law. Senate Majority Leader Mitch McConnell recently told reporters that he won’t entertain a rescission attempt.
A DOL spokesman, in a prepared statement, wasn’t as specific as the administration official in outlining Pizzella’s job functions. “He will work on matters as assigned by the Secretary,” the agency spokesman said. Acosta “recommended and strongly supported” Trump’s nomination of Pizzella, the spokesman added.
Pizzella’s allies in business circles are still holding out hope that his arrival brings relaxed enforcement strategies, especially given that some investigators continue to interpret the law under the more punitive approach of the Obama administration, as they see it.
“I think it would be important for Pat to send a signal that there is a new sheriff in town and enforcement needs to be well balanced with voluntary compliance efforts, in terms of helping employers comply with the law,” Randy Johnson, who heads government affairs at management firm Seyfarth Shaw in Washington, told Bloomberg Law. Johnson has known Pizzella for years, including throughout Johnson’s 20-year tenure heading labor policy at the U.S. Chamber of Commerce.
It appears personnel decisions will continue to be run through the secretary’s office, but both Johnson and McCutchen said they’d like to see Pizzella help fill the three vacancies at a little-known but critical judicial panel within the DOL called the Administrative Review Board. The ARB, which has two of five slots currently filled with judges appointed in the prior administration, serves as the secretary’s legal voice in handing out consequential employment law decisions on issues such as whistleblowing and discrimination.
Pizzella cemented his pro-management reputation during most recent job as a member of the Federal Labor Relations Authority. He was Obama’s pick to serve as the three-member board’s sole GOP representative. This meant he consistently wrote dissents that sided with federal sector management when the panel’s two Democrats issued majority decisions in favor of unions.
Zachary Henige, who worked for Pizzella as the FLRA’s deputy solicitor, recalled attending a training with numerous management representatives in the crowd. “They raised their hands and thanked Member Pizzella for his dissents,” Henige, now an attorney for unions with Kalijarvi, Chuzi, Newman & Fitch in Washington, told Bloomberg Law. “So it wouldn’t surprise me if the management-side folks moving forward will continue to enjoy what Deputy Secretary Pizzella will do.”
Democrats and worker advocates have gone further in their criticism of Pizzella. Prior to his confirmation, they called attention to Pizzella’s work for notorious lobbyist Jack Abramoff in the 1990s. The Senate wound up narrowly confirming Pizzella April 12 on a 50-48 party-line vote. One prominent worker advocacy group will still be tracking his influence inside the DOL.
“He has a lengthy and well-documented history as a highly-paid lobbyist who advocated to perpetuate conditions for workers in the Northern Mariana Islands that were nothing short of indentured servitude,” Judy Conti, government affairs director at the National Employment Law Project, told Bloomberg Law in an email. “We urge Congress to take its oversight role seriously, and we urge Secretary Acosta and all DOL appointees to scrupulously adhere to the rule of law and DOL’s mission in their stewardship of the agency.”
If Pizzella truly keeps his hands off of all policy decisions, it would keep him out of such high-stakes efforts as advancing the White House initiative to expand apprenticeship or accelerating revisions of key Obama-era regulations on overtime pay and conflicted retirement advice. Insulating Pizzella from such decisions entirely would represent a departure from typical practice.
“It’s very frequent actually” that the deputy secretary is “involved in the policy decision-making process,” Mark Wilson, vice president of employment policy at the HR Policy Association and a veteran DOL official over several administrations, told Bloomberg Law. “But it really does depend on Secretary Acosta in terms of how much he wants to delegate to the deputy secretary.”
Pizzella’s experience atop the DOL’s administration and management office in the Bush years makes it a commonsense move for Acosta to task him with keeping the trains running on time, rather than on crafting policy initiatives. But that could change as his relationship with the secretary evolves. And perhaps the business-side optimism will eventually be realized.
“I don’t see Secretary Acosta as somebody who is going to cling to control over issues where getting help from others will benefit the agenda,” said Harris, who now practices law in Washington and teaches at Cornell University. “I see him as somebody who, if he thinks Pat can play a critical role, he’ll put Pat in the game.”
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