PUNCHING IN: Enter Acosta, DNC Vote Nears

Punching In

Monday morning musings for workplace watchers

By Chris Opfer and Ben Penn


DOL Gets Acosta’d | Perez v. Ellison | Overtime Waiting Game

Ben Penn: If you’re easing your way back into the office after a weeklong trip to the Galapagos Islands, don’t fret – you hardly missed a thing. Except, of course, that Andy Puzder is a full-time fast-food CEO again and Alexander Acosta – once rumored to be Puzder’s deputy labor secretary – moved up the chain. There – you’re caught up.

I’ll admit to being disappointed that Puzder withdrew hours before the world would finally have heard him speak at his Senate confirmation hearing. We’ll now never know how Puzder’s controversial statements as a private citizen might’ve morphed during government service. Then again, maybe the allure of a rumored 2020 Senate vacancy in his home state of Tennessee will be too tempting for him to resist…nahhh.

The obvious contrast between the two DOL nominees is the difference in government experience. Donald Trump’s extremely brief remarks on Acosta highlighted the fact that he was confirmed by the Senate for three different senior positions in the George W. Bush regime – and the president didn’t mention that this all happened before Acosta turned 40! 

I should caution that just because Acosta’s been vetted for top posts at the NLRB and DOJ, doesn’t mean he’ll face an entirely smooth confirmation process this go-round. The GOP wants to install the new nominee at the Labor Department rapidly, and I suspect they’ll get their wish if the Senate calendar allows it. But the charged political climate around workers’ rights and wages combined with the inherent antagonism surrounding anyone associated with Trump will make this Acosta’s most difficult path to office yet. 

Send your conjectures on what an Acosta-run DOL would entail and what will be the toughest confirmation hurdles for him to copfer@bna.com and bpenn@bna.com, or on Twitter: @ChrisOpfer and @BenjaminPenn. 

Chris Opfer: Acosta’s Obama-era predecessor will find out later this week if he’s going to be hired to try to help right the ship over at the Democratic National Committee. DNC members are expected to vote on a new chairman during four days of meetings that start Thursday. The race between former Labor Secretary Tom Perez and Rep. Keith Ellison (D-Minn.) has divided unions, as well as others, over what direction the party should take to dust itself off after the November elections demolition. Here’s the latest labor endorsement tally:

Perez Ellison
Bricklayers AFGE
United Farmworkers CWA
International Association of Fire Fighters Steelworkers
United Association (Plumbers and Pipefitters) UNITE HERE


Ellison has also snagged an endorsement from Restaurant Opportunities Center United, one of the nonunion worker centers that Jasmine Ye Han and I took a closer look at last week.

BP: Despite Mr. Acosta’s breadth of labor and employment law experience and familiarity with the Labor Department’s mission, he’s never actually worked inside the Perkins Building. At least with Puzder, we knew exactly where he stood on the overtime rule. He hated it. Where will Acosta come down on the rule?

It’s far too simplistic to assume that a federal court’s November temporary injunction halting the new overtime requirements, just before it could make millions newly eligible for time-and-a-half pay, means the Trump Justice Department will reverse its position on the pending appeal. There are still massive questions as to which branch of government will take the lead in determining an appropriate test for overtime exemptions. The DOJ recently asked the appeals court for 60 more days to consider whether the department will continue defending the rule.

Brett Bartlett has been assiduously tracking this rulemaking and litigation as leader of Seyfarth Shaw’s national wage and hour practice group. Sure enough, less than 24 hours after Acosta had been nominated, Brett told me he had already scoured the public record for indicators as to where Acosta might come down on the overtime rule. He said it’s far too soon to tell but offered up some interesting insight:

“I’ve studied everything that I could on a fast turnaround, and [Acosta’s] certainly not as aggressive and vocal about an opinion that for example, minimum wage is a bad concept or that overtime premiums are business killers as Puzder appeared to think. He’s definitely been a more stable player in the government, and in my view, a lot of the people who have filled the roles that he’s filled appreciate consistency in rulemaking,” Bartlett said. “I would assume that he would be looking at the Texas litigation and the appeal very carefully and in a stratified way, simply because he’s a very bright guy and the overtime case out there is so complicated at present.”  

My takeaway: If Acosta likes predictable rulemaking at the NLRB – which we know he does – then he probably despises the Texas judge’s opinion that DOL can only determine overtime exemptions based on the ambiguous duties test. But whether that translates into Acosta striking a compromise between the current salary basis test of $23,660 and the $47,476 level sought by Obama is still anybody’s guess. 

CO: The Trump White House is expected to take another bite at the immigration apple this week. The president told reporters during a testy news conference last week that he will roll out a new executive order, likely to limit the entry of immigrants from certain parts of the world, within the coming days. The Ninth Circuit already put a hold on the earlier Trump order that would have temporarily banned refugees and visa holders from seven Muslim-majority countries from entering the U.S. The new order is expected to be more narrowly tailored in hopes it will avoid the same fate.

Speaking of travel, this is the time of year when folks above the Mason-Dixon Line start getting the itch to head toward warmer climes. Maybe that’s why Ben and I gave Jon Steingart the stink eye when he told us about his plum assignment covering the ABA Federal Labor Standards Legislation Committee conference in Playa del Carmen, Mexico, this week. 

Between the pina coladas and pool time, Jon told us he’s looking forward to checking in with former Labor Department Solicitor Patricia Smith. “When she spoke at this conference a year ago, she dodged attendees' questions about the scope of the overtime rule, which the department was still finalizing,” Steingart said. “I'll report back on what Private Citizen Smith has to say about the Labor Department and employment law in general under its former, current and future management.”

BP: While Jon works on his suntan, we’re going to punch out. Daily Labor Report subscribers can check back in with us during the week. Bloomberg Law’s Kevin McGowan will be watching as the Supreme Court sets to weigh in on the legal standard for reviewing EEOC subpoenas. Genevieve Douglas will be looking at how social media can sink captains of industry. Martin Berman-Gorvine will have the latest on how states are updating employment laws to jibe with federal requirements. 

See you back here next Monday morning.

Bloomberg Law® helps labor and employment law practitioners provide rapid, accurate and complete advice to clients by bringing together trusted, market-leading Bloomberg BNA content like Daily Labor Report® and treatises like Covenants Not to Compete: A State-by-State Survey and The Developing Labor Law, with a fully integrated, innovative legal research platform.  Click here to request a free trial.