Labor Nominee Acosta to Face Subdued but Thorough Hearing

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By Ben Penn

Labor secretary nominee Alexander Acosta can expect relatively little animosity when he goes before a Senate panel March 22, but his blank record on Labor Department policies means he’s likely to get a thorough examination.

President Donald Trump’s first choice to run the DOL, Andrew Puzder, withdrew Feb. 15, a day before what was certain to be a rancorous hearing. By contrast, Acosta, an experienced, conservative government official, will testify with his confirmation considered more a matter of when than if.

Starting at 9 a.m. EST, the 23 members of the Senate Health, Education, Labor and Pensions Committee will divide along party lines in their questioning, but with a unifying theme: Will you advance the DOL agenda of President Barack Obama or vow to undo the prior eight years of active regulations and enforcement?

Acosta’s hearing comes nearly nine weeks into a Trump White House that has already signaled interest in unwinding several Obama labor regulations that were championed by worker advocates. Moreover, the president’s March 16 budget blueprint called for slashing DOL funding by 21 percent.

“The Trump administration is threatening many of the DOL missions,” Karla Walter, director of employment policy at the Center for American Progress, told Bloomberg BNA. “So whose side is Acosta going to be on? I think the hearing really needs to ask those sorts of tough questions.”

Specifically, Walter—whose think tank influenced Obama policies—wants to hear if Acosta supports recent strategic enforcement initiatives, a regulation to expand workers’ access to overtime pay and an increase in the federal minimum wage.

GOP Wants to Undo Obama Policies

The GOP members are more likely to praise Acosta’s qualifications, including his service during three Senate-confirmed jobs in the George W. Bush administration: National Labor Relations Board member, Justice Department assistant attorney general for civil rights and U.S. attorney in the Southern District of Florida. Currently, Acosta is the law school dean at Florida International University.

HELP Committee Chairman Sen. Lamar Alexander (Tenn.) and some of the panel’s 11 other Republicans will also seek assurance that Acosta will indeed work with them to reverse what they’ve argued were job-killing policies from the prior administration’s DOL. The delay in confirming a leader for the DOL has frustrated impatient employer groups and management attorneys who want a return to the agency’s more conciliatory relationship with businesses that existed under the previous Republican president.

For instance, Amanda Wood, who directs employment policy at the National Association of Manufacturers, said she’s optimistic that Acosta will be open to reconsidering recent DOL rules and legal interpretations, especially those stemming from the Wage and Hour Division and Occupational Safety and Health Administration.

“In particular, we don’t know where he stands on joint employer issues or independent contractors,” Wood told Bloomberg BNA. She was referring to WHD policies that expanded the agency’s interpretation of when a company is jointly liable with an affiliated business for minimum wage and overtime laws and when employees are misclassified as independent contractors.

Employers hoping Acosta will promise to revoke those Obama-era interpretations may be disappointed at the hearing’s conclusion. Like any nominee, he can speak in generalities, saving the more revealing indicators for post-confirmation.

Pledge on Overtime Rule?

Stakeholders on both sides of the aisle will be scouring for clues from even the slightest answer to questions on the overtime rule that a federal judge placed on hold in November. The regulation, a high-profile piece of Obama’s middle-class agenda, was supposed to expand time-and-a-half pay eligibility to some 4 million new workers. It would have taken effect last December.

The Justice Department appealed the decision halting the rule a few weeks after the election, but after Trump took office, the DOJ asked the appeals court for more time to reconsider its position. The DOJ, which now has until May to file a brief, is considered to be waiting for Acosta to weigh in before it proceeds.

“I don’t know if Acosta will be able to speak to that because it might be reflecting where the Justice Department is going to go” on the overtime rule, Christopher Wilkinson, a career associate solicitor at the DOL through 2015, told Bloomberg BNA.

“But I do think any indication he can give as far as whether they’re looking at a rollback or whether they’re looking at it from a repeal-and-replace idea, would be important,” said Wilkinson, who now represents employers as a partner at Orrick, Herrington & Sutcliffe in Washington.

There will be two rounds of questioning, with each committee member allotted five minutes per round.

Questions on Politicized Oversight

To the extent controversy does arise at Acosta’s proceeding, it could get overshadowed by contentious battles elsewhere on Capitol Hill. This includes Neil Gorsuch’s ongoing confirmation hearings for U.S. Supreme Court justice and a looming vote on health-care legislation.

But the hearing may still have turbulent moments. Democrats are likely to attempt to draw a contrast between Acosta’s previous opinions asserting the rights of undocumented workers and the Trump immigration enforcement crackdown.

Lawmakers will also question Acosta on allegations of unlawful politically motivated hiring under his watch at the DOJ, a Democratic committee spokeswoman told Bloomberg BNA March 20. HELP Committee member Sen. Elizabeth Warren (D-Mass.) included this in a March 21 letter to Acosta outlining the reasons she is “very concerned” that he’ll conform to “President Trump’s anti-worker statements.”

Trump’s budget request presents a timely topic for senators to dig into, although it may not yield substantive responses from Acosta. But for a Democrat out to score political points by arguing Trump’s DOL proposal betrays his populist message, the hearing presents a venue.

Querying Acosta on whether he’d go to bat for DOL job training funding will be critical, Raj Nayak, director of research at the National Employment Law Project, told Bloomberg BNA.

“Those are programs that are pretty important to folks across party lines and are vital to a lot of communities around the nation,” said Nayak, who was deputy chief of staff for Obama’s labor secretary, Thomas Perez. “That’s a place where it’s important for a secretary to be able to stand up and fight for those programs.”

Still, when a few unions and thus far one Democratic senator have come out in support of Trump’s labor pick, that’s a sign that the hearing should pass with muted antagonism.

“The fact that you’ve got some folks from the union sector who are being a little more optimistic about his nomination, I think that’s encouraging that it would be less controversial,” Wood, the NAM lobbyist, said. “But we’ll have to wait and see on Wednesday what happens.”

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; Christopher Opfer at copfer@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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