PUNCHING IN: Acosta Vote, DOL Opinions, Tribal Labor


Punching In

Monday morning musings for workplace watchers 

By Chris Opfer and Ben Penn

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Acosta Inching Closer | Opinion Letters to Front Burner? | Spin the Wheel on Tribal Labor

Ben Penn: When Bernie Sanders was a no-show for a Cabinet confirmation hearing, that was a telling sign that the volume in the room would be muffled. Indeed, outside of a heated exchange between Sen. Elizabeth Warren (D-Mass.) and labor secretary nominee Alexander Acosta last week, the nearly three-hour affair was, dare I say, cordial. 

That sets up a Health, Education, Labor and Pensions Committee vote Thursday in which I’m predicting Acosta will advance to the Senate floor with the support of at least a few Democrats. Acosta’s chances were likely boosted by what he didn’t say at his hearing rather than by anything he did say. As one source described his performance – “artfully evasive.”

Sure, we received a few signals on how Acosta feels about the overtime rule, the skills gap and the gig economy. But as predicted, he hid behind pending litigation on the overtime and fiduciary rules – as well as a Trump executive order to reconsider regulations – to avoid showing his hand. I suppose Ted Cruz was serious when he slipped into his introductory remarks that Acosta’s a good poker player.

Six HELP members either didn’t speak or didn’t show, and most of the others fled the room without taking advantage of a second round of questions. (Was there anything else happening on the Hill last week?) Maybe something revealing will come to light when Acosta submits written responses to questions for the record. 

Let us know what you're keeping an eye out for at: copfer@bna.com and bpenn@bna.com, or on Twitter: @ChrisOpfer and @BenjaminPenn. 

Chris Opfer: It wasn’t exactly a news flash when Acosta told the HELPers that he’s all for reviving the Labor Department’s practice of issuing opinion letters. Still, it had to give the employer community the warm and fuzzies to hear him stress the “value” of the letters during a line of questioning from Sen. Mike Enzi (R-Wyo.).

“On opinion letters, he was pretty clear that using the letters is much better practice than administrator interpretations,” Jim Plunkett, the newly minted co-chairman of Ogletree Deakins’ governmental affairs group, told me after the hearing. “I think there’s a desire to return to that proactive, cooperative relationship with the Wage and Hour Division.”

Businesses and their advocates have long argued that the opinion letters – in which the DOL used to weigh in on specific legal issues in particular situations – are far more useful than Obama era administrator interpretations touching generally on legal issues. Of course, there’s another reason employers like the letters: they can use them to defend lawsuits in court.

Federal wage and hour law allows employers to claim a “good faith” defense. A business sued for failing to pay minimum wages or overtime can avoid liability (or reduce damages) by claiming that it relied on “a written administrative regulation, order, ruling, approval, or interpretation” from the Labor Department. In other words, an opinion letter is kind of like a get out of jail free card.

BP: Acosta also briefly touched on one topic last week that otherwise received zero attention at the hearing or in subsequent media coverage, but may one day define his legacyas a labor secretary: infrastructure.

It happened when Sen. Michael Bennet (D-Colo.) pressed the nominee on what his actual plan would be to satisfy the president’s promise to bring back American jobs. Acosta responded: “I think we need to work with public-private partnerships. I know that there is a lot of discussion about an infrastructure program. And an infrastructure program will certainly bring back a lot of jobs.”

An infrastructural bill is still just theoretical and Congress probably won’t get to work on it until fall at the earliest. But when this package is unveiled, who do you think might be called upon by the White House to sell the deal’s workforce-boosting virtues to the public?

CO: Like everything else that isn’t Obamacare, tax or Gorsuch related, infrastructure is going to have to take a back seat for the time being. Congress’s labor committees have also been in a bit of a holding pattern, waiting for DOL leadership to be installed. In the meantime, lawmakers are starting to flirt with a couple less controversial issues. A House subcommittee on Wednesday will take up the ongoing question of whether federal labor law should apply on Indian tribal land.  

A Republican-backed bill to ban the NLRB from sticking its beak into labor disputes at Indian casinos and other businesses is likely to eventually be passed by both chambers of Congress. That’s because it has previously seen support from some Democrats who find themselves between something of a rock and a hard place: they want workers to be protected, but they also want Indian nations to have the freedom to make their own rules. That quandary should be on display when the panel considers the issue.

We’re punching out. Daily Labor Report subscribers can check back in with us during the week for all things Acosta. Bloomberg Law’s Tyrone Richardson is tracking Congress’s first official foray into portable benefits for gig workers. I have a lead on some interesting legal questions about the limits of Office of Federal Contract Compliance Programs investigations. I’m also looking at how one local workers group is creating a blueprint for the labor movement in the age of Trump.

See you back here next Monday morning.