PUNCHING IN: Acosta Heads to Hill


Monday morning musings for workplace watchers 

By Chris Opfer and Ben Penn


Acosta Hits Hill | Preemption Possibilities | Missing Regulatory Agenda

Ben Penn: Labor Secretary Alex Acosta will finally be grilled by Congress Wednesday, after spending his first six weeks on the job in relative obscurity. Acosta is scheduled to testify before House labor appropriators in defense of the DOL budget proposal. Acosta was originally supposed to testify on the Senate side Thursday, but that hearing is now postponed. Perhaps Mr. Comey’s must-see-TV June 8 Senate hearing forced the change.

Acosta’s hearing will be streamed live, but if you have better things to do at 10 a.m., Bloomberg Law will be there and can fill you in. Here’s what we’re watching for when the secretary takes the stand:

  • How does Acosta sell the Trump administration request to slash 20 percent of the Labor Department budget, particularly the steep cuts to job training grants? The White House took aim at programs like Job Corps, which are pet projects for members on both sides of the aisle.

  • Acosta’s public statements in his early weeks touted the value of workforce training, such as apprenticeships, to put America back to work. He’s been especially focused on the manufacturing sector. I suspect Acosta will realize job training cuts of this magnitude are dead on arrival in Congress and that he won’t defend them with much  vigor. Just as he did in his March 30 Senate confirmation hearing, Acosta can sidestep the tough budgetary questions by speaking generally about DOL’s commitment to reducing the skills gap by leveraging only the programs with proven results.

  • What type of reception does Acosta tend to get on the Hill? Democrats on the Senate labor panel other than Elizabeth Warren were subdued when they questioned him at the confirmation hearing. Dems on the House subcommittee who have a chance to pepper Acosta with their concerns include three of the more outspokenly pro-labor, anti-Trump members of Congress – Reps. Rosa DeLauro (Conn.), Barbara Lee (Calif.) and Mark Pocan (Wis.). Don’t expect that trio to give the secretary a free pass just because he’s not Andy Puzder. And will Rep. Andy Harris (R-Md.) use this hearing as a chance to repair his relationship with a sitting labor secretary now that his longtime foe Tom Perez is laboring elsewhere?

  • Don’t be surprised if appropriators ask Acosta about some of the DOL’s other hot-button issues, too. The fiduciary and overtime rules, as well as White House trade and immigration policies, are prime for discussion. 

What would you like to learn from the secretary this week? Want to share your reactions after the hearings? Contact us at bpenn@bna.com and copfer@bna.com, or on Twitter: @BenjaminPenn and @ChrisOpfer.

Chris Opfer: Acosta may be asked to weigh in on one other big ticket item in the labor and employment world: paid leave.

The Trump budget request includes a proposal to create a paid parental leave program within the state unemployment insurance system. It would offer new and expecting parents up to six weeks of paid leave per year. Meanwhile, we’re expecting to see a Republican counteroffer in the House soon. A bill being floated by Rep. Mimi Walters (Calif.) would give employers a safe harbor from state and local paid leave requirements if they offer workers a certain amount of paid maternity, paternity, family and sick leave that would vary based on employer size. 

The measure is likely to reignite debate over federal preemption. The issue has come up as some Republican-controlled state legislatures move to block cities and localities from pushing higher minimum wages and progressive bathroom laws, among other initiatives. 

It’s been widely assumed that the National Labor Relations Act largely preempts states from tinkering with labor relations laws. That idea is getting a close look in Seattle. A federal court there is reviewing a city ordinance that would allow Uber and Lyft drivers to organize.

Then there’s the Fair Labor Standards Act. The federal wage and hour law doesn’t stop states and cities from passing their own wage and hour requirements, but at least some folks wish it did. A couple of management-side lawyers recently told me that business groups are kicking themselves for not pushing preemption when the federal minimum wage was hiked to $7.25 an hour in 2009. Now that cities and states across the country are moving to double that wage floor, it’s safe to say the FLSA preemption train has left the station.

BP:  Here we sit on June 5 without a White House spring regulatory agenda. Normally by this date, an important window into DOL and other government agencies’ plans for the coming year opens when the Office of Management Budget releases its semiannual timeline for anticipated draft and final rules. This year’s publication will have particular significance, considering Trump’s one-in-two-out executive order on all agency regulations. 

The Obama White House released its debut regulatory agenda on May 11, 2009. But the delays in appointing personnel at Trump’s DOL must make the agenda drafting especially arduous. 

It might be unreasonable for us to expect the new agenda to be revelatory because Acosta’s still deliberating about how to handle the deregulatory process. There is the potential, however, for this to be the Labor Department’s forum for announcing plans to rescind other Obama labor regs, such as a requirement for federal contractors to provide paid sick leave. 

CO: With a 4.3 percent unemployment rate—a 16-year low—lawmakers probably won’t be focusing on unemployment insurance when they talk to Acosta. Acosta. Legislators and labor economists will likely be shifting their attention to trickier issues like underemployment and long-term unemployment.

Still, the White House as part of the budget request included some proposals to update the UI system in an effort to cut down on overpayments. That plan is based in part on reports from the Labor Department about ineligible claimants receiving benefits checks.

Here’s something interesting about that:Only about 28 percent of jobless workers nationwide actually qualify for unemployment benefits, according to the DOL.  Many aren’t eligible for benefits because they were classified as independent contractors. Others can’t show they’re able to work. In some cases, however, unemployed workers just might be living in the wrong state, for benefits purposes. The share of jobless workers who get UI benefits varies from 9 percent in Florida to 60 percent in North Dakota. I’ll have more on that for subscribers later today. 

We’re punching out. Daily Labor Report subscribers can check in with us during the week for updates. 

See you back here next Monday morning.

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