PUNCHING IN: Acosta, Gorsuch Meet Senate

Punching In

Monday morning musings for workplace watchers

By Chris Opfer and Ben Penn


Questioning Acosta | Waiting for Gorsuch | Wag a Finger at EEOC

Ben Penn: Unless something very unusual happens in the next 72 hours, this could be the week I get to cover a labor secretary confirmation hearing. 

To get the obvious out of the way, Alex Acosta is a different nominee than Andy Puzder and doesn’t come with the variety of potential complications the fast-food exec did. But that doesn’t mean Acosta won’t face tough questions on Wednesday at 9 a.m. when he testifies before the Senate Health, Education, Labor and Pensions Committee. Maybe that's why a group of industry lobbyists is out today with a new letter urging panel members to move quickly to get Acosta confirmed.

In fact, in the four-plus weeks since Puzder withdrew, a few new issues have arisen that are ripe for Senate questioning when Acosta has his turn. The latest of course is Trump’s long-awaited budget blueprint, which calls for a 21 percent slash in DOL funding. If confirmed, would Acosta support such a substantial reduction? Would eliminating Job Corps centers and workforce training grants – which have received bipartisan support -- meet Acosta’s vision of how to run the agency? Where else (hint: enforcement agencies) might he look to create efficiencies? Acosta could have avoided those questions had HELP committee Chairman Sen. Lamar Alexander (R-Tenn.) not postponed the hearing by one week. Oh well.

Any thoughts on how far we get into the hearing before Acosta is asked about the budget cuts? Let us know at: copfer@bna.com and bpenn@bna.com, or on Twitter: @ChrisOpfer and @BenjaminPenn. 

Chris Opfer: March Madness is the most wonderful time of the year. In some circles, to mangle a phrase from Hunter S. Thompson, it’s like the Super Bowl, the Kentucky Derby and the lower Oakland roller derby finals all rolled into one.

There’s plenty of action in D.C. this week to keep everyone from spending all of it rethinking that decision to pick Southern Methodist to make the Final Four. Supreme Court nominee Neil Gorsuch has his own date with a Senate panel this morning, House lawmakers will probe allegations of Russian election interference, and Congress will stage its first vote on Obamacare repeal and replace legislation. That’s all before the basketball starts up again on Thursday evening.

The Gorsuch hearing is likely to focus on some of his more conservative decisions (Hobby Lobby), the Tenth Circuit judge’s Scalia-like adherence to legal text and his skepticism of the Chevron deference judges give to executive agencies. That deference makes it tougher for opponents to challenge agency rules and decisions, like the Labor Department’s pending overtime expansion and the NLRB’s recent “ambush elections” regulation. It also creates a hurdle for anyone who wants to fight future Trump administration moves.

Democrats may well use Gorsuch’s dissenting opinion in a trucking safety case to try to show that blind devotion to the letter of the law doesn’t pay. Gorsuch said in that case that a Missouri shipping company should have been able to fire a trucker who refused to drag a trailer with frozen brakes. The trucker didn’t qualify for whistle-blower protection because he abandoned his rig, according to Gorsuch.

BP: Meanwhile, Acosta is also likely to take some fire on Trump immigration policy. Amid new reports that undocumented workers are fearful of reporting workplace violations and collecting back wage paychecks, Acosta can expect to receive some questions on how he’d attempt to allay such trepidation. Perhaps he’d have a plan to work with his DHS counterpart on the Cabinet to recommit to their agencies’ longstanding agreement not to interfere with one another’s investigations. 

The guestworker visa programs administered by the DOL might very well come up on Wednesday in light of the administration’s push for giving jobs strictly to Americans. Will Acosta express an interest in scaling back the non-skilled visa programs? I’m not holding my breath.

CO: Around the same time Acosta chats with lawmakers in the Senate Wednesday, a House subcommittee will be kicking around ways to put the GOP stamp on the EEOC. “The Need for More Responsible Regulatory and Enforcement Policies at the EEOC,” is the official topic of discussion for the Education and the Workforce subcommittee on Workforce Protections. The gabfest could go in any number of directions, but we’re confident it will include the Equal Employment Opportunity Commission’s likely-doomed pay data disclosure requirements and what to do about employer wellness plans.

We’re punching out. Daily Labor Report subscribers can check back in with us during the week for all things Acosta. Bloomberg Law’s Jacklyn Wille is previewing the upcoming oral arguments in the Supreme Court debate over whether certain hospital pension plans are exempt from ERISA under a safe harbor for church plans. Jay-Anne Casuga has some insight into what appears to be a shift in the way the Labor Department investigates federal contractors.

See you back here next Monday morning.