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By Ben Penn
Labor Secretary Alexander Acosta preached the importance of exercising restraint in interpreting workplace laws, signaling a contrast with the previous administration, during a recent speech to the Federalist Society.
“We’ve seen abuses of interpretive authority in the past,” said Acosta, according to a transcript of the Sept. 15 remarks that was provided to Bloomberg Law. “Under our stewardship, we must exercise care to avoid effectively changing the substance of the law through interpretations.”
He went on to cite two examples, both of which involved the Labor Department’s interpretation of federal wage-and-hour law under the Obama White House. The secretary took exception to guidance documents, such as a joint employer memo that he has withdrawn, and to litigating positions, such as a 2009 DOL amicus brief that argued pharmaceutical representatives are owed overtime under the Fair Labor Standards Act.
But rather than lay out his personal views on labor policy, Acosta disputed the DOL’s actions during the Obama administration by arguing they sidestepped legal boundaries laid out in the Administrative Procedure Act.
“Perhaps the joint-employer doctrine is good policy; perhaps not. It is certainly not the type of policy change we want to make without public input,” Acosta told the audience at a Federalist Society luncheon.
He’s referring to then-Wage and Hour Division Administrator David Weil’s 2016 memo that sought to clarify how the FLSA provides for a broad set of circumstances in which businesses are jointly accountable for employees’ wages.
Patricia Smith, the DOL solicitor under President Barack Obama who provided legal review on that withdrawn joint employer document, told Bloomberg Law that Acosta’s analysis is flawed. “That administrator’s interpretation did not break new ground at all,” Smith said upon reviewing the speech. “We did it as a compliance assistance document.”
Smith is now a senior counsel at the National Employment Law Project, which advocates for low-wage workers.
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