What’s at Stake for Labor Department on Election Day?

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By Ben Penn

Nov. 7 — The status of Labor Department priorities for the next four years rests in voters’ hands.

A Hillary Clinton administration would be expected to more or less carry out President Barack Obama’s regulatory and policy initiatives at the DOL. Donald Trump’s blank governing track record creates far more doubt about what the agency’s role would be if he wins. But DOL activity under recent Republican administrations may lend insight.

Congressional election results will also help determine what to expect out of the department. That includes key personnel appointments and confirmations, regulatory and guidance changes, enforcement tactics, union relationships and just how much the next president will have to rely on the bully pulpit to get things accomplished.

A Clinton win with a GOP-controlled Senate, for instance, could make it tough to get a new labor secretary confirmed. Republicans may be looking to curb what they view as an overreaching DOL under Obama.

A Trump White House, on the other hand, would raise questions about how the Justice Department handles defense of several significant DOL regulations that face pending lawsuits.

Personnel, Regulations, Litigation

Here’s a quick breakdown of how the Nov. 8 election outcomes could shake out at the Frances Perkins Building:

  • Labor secretary: Before the next DOL agenda can be fully set, a new labor secretary must be appointed and confirmed. Labor Secretary Thomas Perez has in his personal time actively campaigned for Clinton throughout the past year. If she wins, Perez is expected to be in line for a higher-profile spot in the Clinton administration. Perez was confirmed in 2013 without a single vote from a GOP senator, but that was before the Senate flipped to Republican control in 2014. If Clinton wins and the Senate remains in GOP hands, it could take a while to get a new labor chief installed. There’s already speculation about which names the candidates are considering and that talk is expected to amplify after the election. Some of the early names floated could be shot down depending on who is chosen for the first-tier Cabinet spots.
  • Senior personnel: All signs point to either candidate, perhaps working alongside the new labor secretary, needing to fill out a large slate of open political positions at the agency. Trump would be likely to clean house. Even if Clinton wins, many of the DOL’s top subagency leaders are expected to depart by Inauguration Day.
  • Regulatory carryover: DOL career staff who worked on cranking out the agency’s substantial list of regulations the past few years may still be on hand, but some of their focus areas will be dictated by a new White House. There are several final rules slated to take effect shortly after the election that could be curtailed by a Trump takeover or receive new enforcement guidelines from Clinton. The Wage and Hour Division is scheduled to begin enforcing the overtime rule Dec. 1 and a regulation requiring federal contractors to provide paid sick leave Jan. 1. The Employee Benefits Security Administration’s fiduciary rule takes effect in April.
  • Litigation: Business groups are challenging in court the DOL’s authority to issue the overtime and fiduciary regulations. The Justice Department’s approach to defend those regulations—and a few others under ongoing legal attack—could change depending on who captures the White House. Two other recently issued rules facing litigation—the Office of Labor-Management Standard’s persuader rule and the president’s Fair Pay and Safe Workplaces executive order (which DOL would enforce)—have already been frozen by preliminary injunctions.
  • Other priorities: A Trump presidency would be more likely to bolster the role of the Office of Labor-Management Standards, which has traditionally increased scrutiny of alleged union corruption when a Republican is at the helm. Meanwhile, Clinton could leverage her labor secretary to advocate for state and local policies she supports that aren’t moving in Congress, such as a higher minimum wage, equal pay for men and women, and paid family and medical leave.
  • Job growth: No matter who will be moving into the White House, the DOL is certain to be tasked with fulfilling campaign promises of job growth. Congress has been more willing to reach compromise on funding the DOL’s Employment and Training Administration, which oversees apprenticeship and other career training models. As the next president begins to focus on legislation to shore up the nation’s infrastructure, the labor secretary could also pitch that proposal to the public. Several DOL agencies would be preparing to enforce wage and safety laws on countless new government-funded construction sites if new infrastructure money is made available.

To contact the reporter on this story: Ben Penn in Washington at bpenn@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com

Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.

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