Slow Confirmations Could Hamper Labor Department Action

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By Tyrone Richardson and Ben Penn

A restart of the process to confirm some of President Donald Trump’s nominees for Labor Department posts threatens to further delay the agency’s plans to reverse lingering policies from the Obama administration.

The Senate Health, Education, Labor and Pensions Committee postponed a Jan. 11 vote to advance four critical DOL nominees for full floor consideration. The committee last year advanced the nominees in a party-line vote, but the full Senate didn’t vote on the quartet. That forced the White House to restart the confirmation process.

Patrick Pizzella, Trump’s pick for deputy labor secretary, and DOL Wage and Hour Division administrator nominee Cheryl Stanton are among those still in limbo. If confirmed, Pizzella would play a key role as the agency’s chief operating officer. Stanton would be tasked with helping the DOL division sculpt a new overtime rule proposal slated for publication in October.

The vacancies and others in several DOL leadership posts are delaying key decisions on regulations and investigation procedures. Whether that’s a positive or negative all depends on perspective.

“It means that there will be very few policy developments in these agencies,” Seth Harris, a deputy and acting labor secretary in the Obama DOL, told Bloomberg Law. “As a Democrat, that is terrific since I won’t want to see dramatic changes in policy,” Harris added. “As an American,” Harris said, it’s “frustrating that the Trump administration has failed to place senior leaders in places where they’re needed.”

Stanton is currently the director of the South Carolina Department of Employment and Workforce, and Pizzella recently exited the Federal Labor Relations Authority. They’re joined in the queue by Scott Mugno for DOL assistant secretary, Occupational Safety and Health Administration, and William Beach for Bureau of Labor Statistics commissioner.

“We have strong nominees to be renominated,” a DOL spokesman told Bloomberg Law in a statement. “They have deep experience and are ready to work on behalf of the American people once confirmed.”

The nominees are expected to be advanced by the HELP committee on a party-line vote. That sets them up for Senate floor consideration, but the timetable for a final confirmation vote is still unclear.

Putting Out Fires

The WHD and OSHA under Obama both implemented a slew of regulations and enforcement initiatives that the business community has pressed Labor Secretary Alexander Acosta to reverse. The lack of Senate-confirmed personnel at those agencies has meant a more reactive approach.

“They are trying to put out fires as they come up, trying to do what they can on critical issues, or issues that have timetables or court deadlines,” Alex Passantino, an acting WHD administrator during the George W. Bush presidency, told Bloomberg Law. “Once they start seeing people getting confirmed, that goes a long way toward allowing them to take their policy agenda and move forward with it.”

Among those fires that were put out last year, the DOL was faced with a court deadline on whether to appeal a judge’s decision to invalidate the Obama-era overtime rule, which would’ve extended time-and-a-half pay eligibility to an estimated 4.2 million workers. The agency opted to appeal and then asked the appellate court to freeze the litigation pending the outcome of a new rulemaking process.

Even without a new leader, the division began drafting a new version of the overtime rule that will qualify more employees for overtime, but not as many as under the Obama regulation. OSHA is reviewing several regulations inherited from the prior administration, including portions of a rule requiring businesses to electronically disclose employee injuries and illnesses. Still, Stanton and Mugno are likely needed on board before top-level decisions on how to proceed with those regulatory processes can be made.

Missing agency chiefs may only explain part of the holdup in major announcements on regulations. The slowdown also stems from the time-consuming rulemaking process that some DOL agencies now find themselves in, explained James Plunkett, senior government relations counsel at management-side firm Ogletree Deakins.

“They’re rolling up their sleeves and they’re in the nitty-gritty of rulemaking, combined in some aspects with ongoing litigation,” Plunkett told Bloomberg Law. “I think it’s a combination of the continued lack of personnel with this stage of where they’re at that will lead to this continued slow developments coming out of DOL.”

Labor Policy Delays to Continue?

Harris, who is now an attorney in Washington and a visiting professor at Cornell University, said DOL career staffers are there to “run the day-to-day operations,” not necessarily decide on rules and personnel matters often tasked for the political appointees.

That leaves it a matter of Senate scheduling to determine how much longer the four nominees must wait before their likely confirmations.

A spokeswoman for Senate Majority Leader Mitch McConnell didn’t immediately respond to Bloomberg Law’s question about whether the leadership will seek to move swiftly to confirm the DOL nominees.

The Senate capped its 2017 session by prioritizing the confirmation of some of Trump’s federal judicial nominees, a theme that continued in the first week of this year’s session. The four DOL nominees are among dozens of other Trump officials in waiting who have to restart the confirmation process, from a variety of agencies from the Education Department to State Department.

Mark Wilson, vice president of employment policy at the HR Policy Association and a veteran DOL official, told Bloomberg Law the timing of the Senate vote could depend on the health of one or more GOP senators. If Democrats remain united in their resistance of the nominees, that would make scheduling difficult for the Senate Majority Leader Mitch McConnell (R-Ky). The chamber’s 51-49 GOP majority means McConnell can’t afford more than two absences from his caucus or else Democrats could block a nominee.

Sen. John McCain (R-Ariz.) is being treated for brain cancer and Sen. Thad Cochran (R-Miss.) has missed votes this past year due to a series of health issues.

Business groups and Senate Republicans continue to gripe about the delays, placing some of the blame on Democrats for dragging out the process. But to Judy Conti, who helped mobilize the labor community’s opposition to Trump’s first choice for labor secretary, the now-withdrawn Andrew Puzder, the White House can only blame itself for moving appointments at an “extremely slow” clip.

“We’ve got very serious concerns about many of the nominees that have to be sent back and renominated,” Conti, who is federal advocacy coordinator at the National Employment Law Project, told Bloomberg Law. “So if there’s more time to vet them, so much the better.”

Trump has also yet to announce a nominee to fill a crucial fifth seat on the National Labor Relations Board. That position would give the board the GOP majority needed to overturn various Obama-era decisions that have been criticized by Republicans and the business community.

The lack of some political picks at the DOL has prompted criticism from lawmakers including HELP Chairman Sen. Lamar Alexander (R-Tenn.), who last summer raised concerns about what he described as the slow pace at which the White House was selecting DOL nominees.

Alexander told Bloomberg Law that confirming DOL nominees was a key part of HELP’s 2017 agenda. Officials in Alexander’s office weren’t immediately available for comment Jan. 10.

HELP committee Democrats such as Sen. Bob Casey (Pa.) told Bloomberg Law that the party remains opposed to many of the DOL nominees. Many have criticized them, fearing they won’t stand up for workers’ rights.

“Obviously with a lot of these nominations, we have strong objections and that impacts how we approach the process as well,” Casey said.

To contact the reporters on this story: Tyrone Richardson in Washington at trichardson@bloomberglaw.com; and Ben Penn in Washington at bpenn@bloomberglaw.com

To contact the editor responsible for this story: Chris Opfer at copfer@bloomberglaw.com

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