Punching In: Labor Leadership Shaping Up

From Labor and Employment Blog

By Chris Opfer and Ben Penn | October 16, 2017

PUNCHING IN

Monday morning musings for workplace watchers 

By Chris Opfer and Ben Penn

Acosta on Stage | Wave of Labor Nominees Advancing | Mr. “Lock Her Up!” for Labor Board?

Ben Penn: I’ll be in the audience Wednesday when Labor Secretary Alex Acosta speaks at the Association of Corporate Counsel annual meeting. He’ll be joined by an accomplished list of panelists to talk labor and employment policy – most notably Bloomberg Law’s own Kevin McGowan, who will moderate the session. Rounding out the panel are EEOC acting Chair Victoria Lipnic, Ogletree Deakins’ Hal Coxson, and ReedGroup’s Megan Holstein.

If Acosta’s remarks follow his usual script, he’ll tout the Trump administration’s progress on addressing the skills gap by facilitating more business-designed apprenticeship programs. The hundreds of in-house counsel in attendance will surely want to hear the labor secretary address next steps on overtime rulemaking, joint employment liability, and other enforcement issues. But knowing this secretary’s MO, I’m guessing he’ll keep the room in suspense on those topics.

As Punching In readers know, Acosta is a cautious attorney who needs support from high-level personnel. Chief of staff/acting solicitor Nick Geale is said to be essentially running the entire department as Acosta’s COO, until nominated officials clear Senate hurdles. Don’t expect the secretary to show his hand by saying anything remotely controversial that could give Democrats ammunition to lambast his nominees for Wage and Hour Division administrator, solicitor, and other vital roles. 

Perhaps the conference will reveal more details about the Equal Employment Opportunity Commission, however. Lipnic, an experienced government hand on the commission and formerly at DOL, will likely touch on the future of the EEOC’s pay data plan, which was suspended by the White House late this summer. 

Chris Opfer: The Trump administration is expected to take a big step forward Wednesday on staffing up the labor front. The Senate HELP Committee votes on a slew of nominees for spots at the DOL, NLRB, EEOC, and National Mediation Board. 

The list includes Pat Pizzella for deputy labor secretary, Peter Robb for NLRB general counsel, and Janet Dhillon (chairwoman) and Daniel Gade (commissioner) for the EEOC. There’s also a very familiar face for the panel to consider: Kyle Fortson, the HELP Committee’s Republican labor policy director, is up for a gig on the NMB. Approval by the committee would set the nominees up for full floor votes.

The scheduled votes are good news for the White House and the business community, whose advocates have been vocal in calling for the Senate to speed up the process of getting new blood into labor-related agencies. It’s been nearly four months since Trump nominated Pizzella for second in command at the Labor Department and more than 90 says since his confirmation hearing.  

The smart money is on all of the nominees to be approved by the panel, with the full support of the panel’s Republicans, who are in the majority. The real intrigue on the Committee these days circles around the decision by Susan Collins (R-Maine) to stay in the Senate and skip a run for governor.  Maybe she sees being a thorn in the president’s side as her true calling. Although Collins has been willing to cross Trump at times, we expect her to back the slate of nominees. I'll also assume they will all be confirmed by the full Senate, eventually.

BP: We learned last week that the Labor Department had entered into a compliance pact with a Senate cafeteria contractor, departing from the Obama administration’s move to debar the company from government business after it had already paid workers wages owed. To some, it appeared politics had to have played a role in the reversal. 

I’m not ready to draw that conclusion. 

We may never know what motivated DOL to settle, rather than ban the company, Restaurant Associates, from bidding on contracts. For what it’s worth, the hospitality provider negotiated with the regional solicitor’s office based in Philadelphia, and not the department’s national office – although it’s always possible somebody from the Frances Perkins Building weighed in.  

We’ll be monitoring other debarment proceedings over the coming months. Was this a one-off, or does the Restaurant Associates case open the floodgates for dozens of other employers to suddenly enjoy a friendlier government lawyer at the other side of the negotiation table? 

CO: As the clock keeps ticking down on the term of NLRB chairman Phil Miscimarra (R), the name Mike Stoker is still floating around as one of two (or three) lawyers who could replace him. We don’t know a whole lot about the California agriculture attorney, but one thing’s for sure: He’s not a fan of Hillary Clinton.

Stoker, at least in some circles, is credited with starting the “lock her up!” chant during the Republican National Convention last year. He was in Cleveland as part of the California GOP delegation. By some accounts, Stoker’s supposed role makes him responsible for a rallying cry that helped define the election and served as a short hand for the Clinton email saga.

I’m told that Stoker is White House labor guru James Sherk’s personal favorite for the job. What’s not clear is whether that’s because of Stoker’s way with words.

BP: The White House withdrawal of Mason Bishop’s potential nomination to head the Employment and Training Administration sets up an interesting dilemma for ETA’s chief of staff Rosemary Lahasky.

Bishop opened up to me about the process of being courted by Acosta to serve, spending the summer disentangling himself from his consultancy business in anticipation of being tapped, and even assembling his leadership team. Bishop said Lahasky, who arrived at ETA a few weeks ago, was his personal choice, and that his deputy assistant secretary had also been selected (Bishop declined to name the person and said he doesn’t know whether he/she will remain as DAS now that the White House is resetting its search for an ETA chief).

Always an essential DOL subagency, ETA now holds the key to carrying out Trump and Acosta’s promises to get America back to work. It’s unclear whether Lahasky wants to remain on board to serve under a different boss. I’m told she earned respect among workforce stakeholders during her time as the point majority House staffer, leading the bipartisan negotiations that resulted in the passage of the Workforce Innovation and Opportunity Act in 2014. 

Yet Lahasky then left Capitol Hill to work for an administration that proposed drastic cuts to WIOA programs. We’ll see if she’s on board for the Trump administration’s plans to facelift the WIOA-funded job training system by placing businesses in the drivers’ seat.

CO: We’re punching out. Daily Labor Report subscribers can check in during the week for updates. Acosta is making the rounds this week. Bloomberg Law’s Jacquie Lee will be in the house when the labor secretary addresses the U.S. Chamber Foundation this afternoon. Will he stick to his well-worn talking points on job training and apprenticeships? Or will Acosta offer the business community some insight into what else he has cooking. Check back with us to find out.

See you back here next Monday morning.

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