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Ex-Ogletree Lawyer Said to Be Picked to Run Wage-Hour Division

June 6, 2017, 4:54 PM

By Ben Penn, Bloomberg BNA

The White House is expected to name former George W. Bush administration attorney Cheryl Stanton to head the Labor Department’s Wage and Hour Division, according to sources familiar with the process.

Stanton, currently executive director of the South Carolina Department of Employment and Workforce, served in Bush’s second term as the White House’s principal legal liaison to the DOL, National Labor Relations Board, and Equal Employment Opportunity Commission. Her White House job was sandwiched between two nearly five-year stints as a shareholder for management law firm Ogletree Deakins, where she represented employers in wage-and-hour cases.

Two sources told Bloomberg BNA that they’ve been briefed that Stanton has been tapped, but they were unclear how close the administration is to formally nominating her. A third source said Stanton is currently going through her FBI background check process. The sources spoke on the condition of anonymity.

Stanton would inherit an agency that enforces federal minimum wage, overtime, and family leave laws. It also monitors construction sites to ensure prevailing wage standards are being met on federal infrastructure projects. The WHD published the DOL’s controversial 2016 overtime rule, which was intended to expand overtime pay access to millions of workers. That regulation is now on hold by a federal judge, as the Trump administration is weighing whether to continue defending the rule in court.

Stanton shares an item on her resume with Labor Secretary Alexander Acosta: They both clerked for U.S. Supreme Court Justice Samuel Alito when Alito was a judge on the U.S. Court of Appeals for the Third Circuit. Stanton worked for Alito in the 1990s shortly after Acosta had the same clerkship.

“As always, any announcements will be made through the press distribution list,” White House spokesman Ninio Fetalvo told Bloomberg BNA via email.

She would inherit a division that the business community criticized during the Obama administration for allegedly using heavy-handed enforcement strategies that presumed employer willfulness. The next administrator is expected to reconsider interpretation letters published under the prior WHD chief, David Weil. These include interpretations that the Fair Labor Standards Act provides for a broad application of the term “employ,” allowing for a heightened focus on independent contractor misclassification and joint employment.

Stanton declined to comment when reached through her South Carolina employment agency’s spokesman, Robert Bouyea. She was appointed as the agency executive director in 2013 by then-South Carolina Gov. Nikki Haley (R). In this role, Stanton oversees payment of unemployment benefits and efforts to match businesses with job seekers.

Stanton appears to have beaten out Alexander Passantino for the Wage and Hour Division job. Passantino, a former acting WHD administrator under Bush, was interviewed by Acosta for the position.

The Weil WHD was widely praised by worker groups for advancing employee protections. The agency relied on a data-driven approach to identify and investigate workplaces with a high likelihood of wage violations and where vulnerable workers would otherwise be unlikely to file complaints.