Punching In: What’s Next for Alex Acosta?

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By Chris Opfer, Jaclyn Diaz, and Tyrone Richardson

Monday morning musings for workplace watchers

Stealing the Minimum Wage Spotlight|Cheryl Stanton on the Move | Speeding up NLRB investigations

Jaclyn Diaz: So I think it goes without saying that last week was a long one for Labor Secretary Alex Acosta.

A bombshell Miami Herald story on multimillionaire Jeffery Epstein and the subsequent fallout made Acosta the subject of morning news shows and viral tweets.

Some of the details we already knew: Acosta was U.S. attorney in Miami at the time the Epstein saga was unfolding. To summarize the story: Acosta gave Epstein, accused of coercing dozens of underage girls into participating in various sex acts, a plea deal that amounted to a slap on the wrist. Epstein got just 13 months behind bars (and a cushy work release agreement) in exchange for pleading guilty to two prostitution charges, a deal that was brokered between his attorneys and Acosta.

As many of the people I’ve talked to this week pointed out, this came up during Acosta’s confirmation hearing and so it isn’t breaking news. But the allegations are getting a lot more attention this time around.

A #FireAlexAcosta hashtag hit the Twitterverse and celebrities like Alyssa Milano put their two cents’ worth in, calling for Acosta’s removal.

So, what happens now?

It seems Acosta’s role at the DOL is safe, though the story is highly problematic for him, one source said. The DOL, in response to the story, said, “The U.S. Attorney’s Office for the Southern District of Florida has defended the actions in this case across three administrations.”

The people I’ve talked to said they’re watching how the public responds but don’t think Acosta is at risk of losing his job.

The risk to Acosta is more in the future.

His name was on a list to take over former U.S. Attorney General Jeff Sessions’ old spot at the Justice Department. Not so anymore, reports late last week said. That’s not terribly surprising given that insiders said all along Acosta was a long shot for the job.

But Acosta wants to be a judge some day, as we’ve previously reported. That might be harder now. The Herald story notes that the victims, now adults, are pursuing two lawsuits. One of them accuses federal prosecutors, including Acosta, of breaking the law by brokering the soft deal for Epstein. This could mean victims will be able to testify publicly for the first time—ensuring that the details of this story will remain in the public spotlight for a long time. Those stories won’t do any favors for Acosta going forward. They could have implications beyond his job prospects, one source said. The secretary is has taken a highly cautious approach to running the DOL. The unaccustomed criticism could make him retreat even more, the source suggested, meaning a further reluctance to take on controversial topics and regulations facing the DOL with two years left in President Donald Trump’s first term.

I talked with Bloomberg Law’s Hassan Kanu in the week’s Punching In podcast. Terminal readers can find it here: {NSN PJ4XJ96KLVR7}

Chris Opfer: Republicans are using the waning days of their House control to try to get ahead of a minimum wage debate that’s likely to heat up early next year. The Education and the Workforce Committee on Wednesday will discuss “the consequences for workers and small businesses” of raising the federal pay floor to $15 an hour.

Rep. Bobby Scott (D-Va.), who is expected to be named committee chairman when Democrats retake the reins in January, has already said a $15 minimum wage bill will be one of his top priorities. He’s likely to try to push it as a bipartisan issue, noting that the minimum wage hasn’t changed since the George W. Bush administration increased it to $7.25 an hour a decade ago. He’ll also point to recent ballot initiatives in red states like Arkansas and Missouri, where voters approved minimum wage hikes.

Ed/Workforce Republicans are getting out in front of the debate by having the hearing now, when they still control who testifies and have the majority of the folks asking the questions. They’re sure to once again paint a big minimum wage increase as a job killer, especially for small businesses with tight margins and in states and localities with relatively low costs of living.

Bloomberg Law’s Tyrone Richardson will be in the hearing room on Wednesday. He also has some info on the Labor Department’s would-be wage and hour chief.

Tyrone Richardson: President Trump’s pick to run the Labor Department’s Wage & Hour Division, Cheryl Stanton, is resigning her post at the South Carolina state employment agency, effective Friday. It’s not immediately clear where Stanton is headed next.

Stanton, a former counsel from the George W. Bush administration, is just one of several of Trump’s labor-related nominees looking forward to the day the Senate votes them in. The count is at 10 if you factor in nominees for the DOL, National Labor Relations Board, and the Equal Employment Opportunity Commission. Is there a nominee support group out there that we don’t know about?

The 115th Congress ends in mid-December. Unless Democrats and Republicans can agree to a unanimous consent for these folks, they return to the starting line when the 116th Congress convenes Jan. 3.

I assume Stanton didn’t expect to be in the Palmetto State this long after Trump nominated her in September 2017. It’s possible the soon-to-be unemployed labor lawyer may seek a different post in the Trump administration, perhaps one that doesn’t require confirmation by Congress.

CO: NLRB General Counsel Peter Robb has ruffled a feather or two in his first year on the job, but no one can accuse the board’s top lawyer of being a lay-about. Robb has already floated a number of changes to how the agency polices labor violations. Some say he’s knocking the dust off some old ways of doing things that are relics of a different time. Others fear his changes will gut the agency’s ability to adequately enforce workers’ rights on the job.

The latest move out of the general counsel’s office is likely to continue to stir the debate. Robb has informed NLRB regional directors that he’s speeding up the board’s current system of benchmarks and time targets for processing cases. He’s ordered the regional directors to cut their current processing times—the time from receiving a charge to determining whether the charge has merit—by 20 percent over the next four years.

“The Office of the General Counsel is discussing the case processing time-targets to address and prevent delays in processing unfair labor practice charges,” an NLRB spokesperson me.

Advocates for workers, unions, and businesses are concerned that the new time lines—which call for 5 percent cuts in each of the next four years—will force NLRB investigators into rush jobs. Unions may wind up bearing the brunt of the change. Labor organizations file the bulk of unfair labor practice charges and strict deadlines could make it tougher to build the support needed to justify pursuing a charge, some labor lawyers told me.

The board’s current system prioritizes certain cases, such as those involving secondary boycotts and work stoppages. It also gives investigators some leeway on deadlines in complicated cases and those in which they have to get a subpoena to properly consider allegations.

Eric Stuart, a management-side lawyer at Ogletree Deakins in New Jersey, said he expects any new directives to maintain those “safeguards.” But he also said he’d like to see some more uniformity across the regions in processing times.

“Each region is its own animal,” Stuart said. “I have had single complainant unfair labor practice cases drag out for 6 months for no reason in one region and much more complicated cases resolved more quickly in another region.”

We’re punching out. Daily Labor Report subscribers can check in during the week for updates. In the meantime, feel free to reach out to us: copfer@bloomberglaw.com, jdiaz@bloomberglaw.com, and trichardson@bloomberglaw or on Twitter: @ChrisOpfer, @JaclynmDiaz, and @TyRichardsonPC.

See you back here next Monday.

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