By Billy S. Fawcett
President Trump recently nominated Eugene Scalia for the Secretary of Labor. Scalia still must go through the confirmation process, but his confirmation is likely given his impressive resume. This article examines what Scalia as the Secretary of Labor could mean for employers if he is confirmed by the Senate.
I. Eugene Scalia’s Background
Son of the late Justice Antonin Scalia, Eugene Scalia has an impeccable educational resume—he attended three prestigious schools, graduated with honors, earned a law degree, again with honors, and then earned an MBA. He went on to work for one of the premier regulatory law firms in the world. Scalia is primarily known for his ability in representing corporations in challenges to federal regulations. Importantly, he previously served as the Solicitor of Labor, where he advised the Secretary of Labor and oversaw the Department of Labor’s 400 lawyers who enforce the numerous regulations that fall under the scope of the Department of Labor. He also worked as a special assistant to Attorney General William Barr in the early 1990s. Further, he spent three years working as an aide to the Education Secretary William Bennett in the mid-1980s.
Scalia gained a reputation as one of the better attorneys in the country for his work dealing with challenging federal regulations. In other words, he represented businesses in trying to dismantle regulations that made their operations more difficult and/or less profitable. Unlike a Supreme Court nominee, we do not have a large body of work, such as years of judicial opinions, to look at in determining what Scalia will do as the Secretary of Labor. We can, however, look to his body of work as a lawyer. In one of his more famous cases, Scalia successfully represented Wal-Mart in challenging a state law that required employers with 10,000 or more employees to spend at least 8% of their payroll on healthcare. In another case, he argued, again successfully, that SeaWorld did not violate OSHA’s “general duty” clause when the Department of Labor accused SeaWorld of exposing its workers to a hazardous environment after a killer whale killed its trainer. Scalia argued that a company’s general duty to keep workplaces free from recognized hazards did not apply because it was necessary for SeaWorld’s trainers to work closely with killer whales. He also successfully represented clients in overturning many other Obama-era financial and labor regulations.
We do not actually know Scalia’s personal opinions regarding labor regulations, but we do know that he served his clients who opposed regulations effectively. We also know that he authored an essay, over twenty years ago, questioning why quid pro quo harassment only requires one instance to be actionable while other forms of sexual harassment have a “severe and pervasive” requirement—a decidedly conservative/management side position. Of course, his actual opinions on sexual harassment do not play much of a factor in running the Department of Labor as the wholly distinct and separate Equal Employment Opportunity Commission oversees sexual harassment issues. Further, in his job as Secretary of Labor he will likely act according to the administration’s wishes in the same manner that he acted according to his client’s wishes in private practice. It is safe to assume that President Trump nominated him because of his extensive track record of representing clients in tearing down regulations. Moreover, he served under a Republican president, George W. Bush, once before, so it is likely, and reasonable to assume, that he will be decidedly pro-management in his policies.
II. The Requirements of the Secretary of Labor
Typically, the Secretary of Labor has extensive political or labor and employment law experience, making Eugene Scalia exceptionally qualified in that regard. However, critics may point to the history and mission of the Department of Labor to dispute Scalia’s qualifications. The Department of Labor and the Department of Commerce came into existence together in 1903 as the Department of Commerce and Labor. However, in 1913, they split into separate departments when the progressive movement of the late 19th century got its wish of having a voice for the workers in the cabinet.
The Department of Labor was intended to represent the interests of workers, while the Department of Commerce represented the interests of businesses. Specifically, the Department of Labor states that its purpose is “to foster, promote and develop the welfare of working people, to improve their working conditions, and to enhance their opportunities for profitable employment.” Some commenters have aptly noted that Scalia’s experience stands inapposite of the Department of Labor’s goal: he has fought for business and against regulations protecting workers. It seems he might be more suited for the position of Secretary of Commerce than the Secretary of Labor.
It remains to be seen whether Eugene Scalia will adopt the spirit of the Department of Labor, or whether he will continue his efforts to challenge regulation. The latter seems likely as President Trump has placed people into positions of power over departments which they openly disfavor or have spent time fighting against. Highlights of such nominations include nominating Sonny Perdue as the Secretary of Agriculture, Scott Pruitt as the Administrator of the EPA, or most famously, Rick Perry as the Secretary of Energy after he stated that he would abolish the Department of Energy despite being unable to recall its name.
III. The Department of Labor under Alexander Acosta
Employers should not expect a major transition under Scalia as the previous Secretary of Labor, Alexander Acosta, was a President Trump nominee and decidedly conservative. Acosta had previously served on the National Labor Relations Board under the George W. Bush administration. He then worked in the Civil Rights Division of the Department of Justice before becoming a federal prosecutor.
During his tenure as Secretary of Labor, Acosta proposed a cut of nearly early 80% to the funding of the International Labor Affairs Bureau, which lines up with the current administration’s trade goals and its goal of cutting regulations. The primary job of the International Labor Affairs Bureau is to combat human trafficking, child labor, and forced labor at the international level. This was met with heavy criticism because the ILAB’s duties included combatting child sex trafficking, which was at the center of the controversial plea deal Acosta gave to Jeffrey Epstein. This criticism reminded the media of that plea deal, and the following media firestorm caused him to resign.
Acosta was still in the early stages of creating some changes in the Department of Labor. Before his resignation, Acosta created an apprenticeship program, was beginning an overhaul of visa requirements, and was planning on raising the overtime threshold. However, Acosta was moving slowly in reversing President Obama’s policies in favor of pro-business policies, which is where Scalia might be different from Acosta.
IV. Effects on Employers
There is no reason to expect that Scalia will roll back or alter any of Acosta’s recent initiatives or proposed initiatives. Further, it is important to remember that Scalia is replacing a fellow conservative Trump-appointee, so there should be no major or noticeable shifts. The only likely shift, which will not be a dramatic turn in policy, is that Scalia will probably work more aggressively than Acosta did on reversing Obama-era policies.
Employers should expect the Department of Labor to continue to reverse course on its Obama-era policies. It is possible that Scalia will be more zealous in overturning these policies, given the cases he undertook in private practice. Importantly, at the time of writing, Scalia has not had his confirmation hearing, which may involve some theatrics regarding his career where he often faced the Department of Labor and regarding his article about sexual harassment.
Martenson Hasbrouck & Simon LLP
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www.martensonlaw.com