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By Ben Penn
The nominee for the nation’s top employment law prosecutor wants to make it easier for employers to comply with the law under the principle that the vast majority of them want to do right by workers.
Kate O’Scannlain, the White House pick for Labor Department solicitor, entered her Senate confirmation hearing Nov. 15 without a deep public record on the laws that she’d be charged with enforcing. By the conclusion of the hearing, she had echoed the positions of the management bar from which she hails, showcasing an inclination to adopt a more conciliatory posture toward businesses.
“In my experience, the vast majority of employers seek to comply with the law. Indeed, they spend significant amounts of money on compliance costs, only to confront laws, rules, and regulations that can be confusing in their application to the modern workplace,” O’Scannlain told the Senate Health, Education, Labor and Pensions Committee. “The rules of the road should be clear and compliance guidance ample and easily accessible. Our laws should not be a game of ‘gotcha.’”
The Kirkland & Ellis partner was pressed to explain how she’d oversee the department’s legal office, but the solicitor nominee didn’t always face strict scrutiny from senators distracted by a crowded witness table.
Employer representatives and Republicans criticized the Obama administration’s solicitor’s office for imposing hefty fines and penalties on employers who purportedly weren’t willful violators. They also argued the DOL under President Barack Obama had an overly aggressive regulatory approach and released guidance documents that were actually rule changes.
O’Scannlain didn’t face questions on the topic of the department’s assessment of liquidated, or double, damages recovered for workers when employers are found in violation of the Fair Labor Standards Act. However, the next confirmed solicitor is considered likely to reduce the prevalence of this practice from the levels pursued under Obama administration’s solicitor, Patricia Smith.
HELP Committee Chairman Lamar Alexander (R-Tenn.) asked O’Scannlain to attest that guidance documents aren’t intended to change the law.
“Guidance is not law, but guidance is an important aspect of making sure there’s consistency in application of our laws,” she replied. “That’s one of my main priorities, if I’m lucky enough to be solicitor.”
Rather than issue more sweeping, broadly applicable administrator’s interpretations from the Obama era, the DOL under Labor Secretary Alexander Acosta has restored the publication of opinion letters, which are intended to clarify statutes in response to specific questions. The Labor Department this year also has rescinded two controversial guidance memos issued by the department’s Wage and Hour Division. The secretary said they sidestepped public notice and comment.
Robust policy changes remain to be seen under the Trump White House, as Acosta has been in office for roughly six months without a Senate-confirmed official by his side.
O’Scannlain testified along with the nominee to head the DOL’s employee benefits agency and two personnel selections for the Education Department. She would enter government service for the first time after practicing law for 12 years, most recently with a focus on labor and employment aspects of mergers and acquisitions.
In addition to filing litigation, the solicitor is responsible for developing regulations and policies. Sen. Patty Murray (D-Wash.), the panel’s ranking Democrat, cited for O’Scannlain her concern about the DOL rolling back the 2016 overtime rule.
If confirmed, she would step into an ongoing rulemaking process that aims to make more workers eligible for overtime pay. This comes on the heels of the Obama DOL’s 2016 overtime rule, which would’ve been more ambitious than the type of regulation Acosta has endorsed. The earlier rule was shot down by a federal court.
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