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Biden Recruiting for ‘Acting’ Roles to Jump-Start Labor Agenda

Dec. 9, 2020, 10:30 AM

The Biden transition is pressing to identify experienced people for “acting” leadership posts at the U.S. Labor Department who could begin work on Inauguration Day, allowing the incoming administration to quickly address pandemic-related workplace emergencies.

President-elect Joe Biden‘s team is zeroing in on candidates for acting leaders at the Wage and Hour Division, Occupational Safety and Health Administration, Employment and Training Administration, and Office of the Solicitor, among other senior positions at DOL, four sources with knowledge of the plans said.

The emphasis on vetting contenders for acting roles, which is being handled by a transition personnel squad with help from outside groups, is part of Biden’s government-wide strategy to work around the likelihood of confirmation battles with Senate Republicans, the sources said. Biden’s team believes that priority issues for workers struggling during the pandemic shouldn’t be held hostage to partisan differences in the Senate and the chamber’s glacial confirmation process, said a source directly involved in the effort.

Shortlists have been compiled, and the goal is to designate a group of temporary leaders for DOL later this month, the sources said. They spoke on condition of anonymity because they weren’t authorized to discuss internal deliberations.

The incoming administration has urgent plans to reverse many of President Donald Trump‘s workplace actions and implement new policies in the areas of occupational safety, paid leave, and unemployment insurance—all in an effort to increase the federal government’s pandemic response.

The Biden transition contends it is important to be able to take actions quickly, while workers need assistance, because some of the moves would lose relevance later in the year when a vaccine is likely to be widely distributed, the sources said.

Fulfilling this short-term agenda requires hiring Democratic appointees with the experience and wherewithal to reorient Labor Department subagencies to advance tougher enforcement protocols and broader interpretations of which employees are owed jobless benefits and paid sick leave, the sources said. The department’s central legal office also must take on a more worker-friendly mindset to coordinate actions.

“I think it is going to be necessary and, strategically, it’s the right move, because we know that some of the issues that we’ve been talking about cannot wait, and we do anticipate some partisan fights in terms of confirmations,” said C. Nicole Mason, president and CEO of the Institute for Women’s Policy Research, who has been in contact with Biden’s labor review team.

The president-elect’s choice for labor secretary is the most pivotal remaining personnel selection for determining DOL’s future agenda. But any nominee may wait a few months or more to be confirmed, placing greater importance on acting officials who can help Biden’s DOL out of the gates.

Once Biden taps someone for labor secretary, that person would then influence selections for Senate-confirmed roles on his or her senior team.

Outside advocates are now circulating names for those posts, but finalizing the list of acting hires is on a more accelerated track, said the source involved in the process.

A Biden transition official played down the prospect of nominations delays in the Senate.

“We’ve appreciated the overall positive reaction our nominees have had from Senate Republicans and Democrats so far and look forward to confirming our nominees as soon as possible so they’re ready to help the president govern on day one,” the official said, declining to comment on acting appointments.

Names Emerging

While the list for interim jobs is still in flux, the following names were floated by people close to the transition:

  • Oregon Wage and Hour Administrator Sonia Ramirez, a former top lobbyist for North America’s Building Trades Unions, to helm the federal Wage and Hour Division;
  • Former United Steelworkers safety official Jim Frederick or California occupational safety chief Doug Parker, to run OSHA;
  • Obama-era DOL Solicitor Patricia Smith, for a temporary reprise as chief legal officer, or Obama DOL Chief of Staff Seema Nanda, for solicitor or deputy secretary;
  • Nikki McKinney—labor policy director for ranking member Patty Murray (D-Wash.) on the Senate Health, Education, Labor and Pensions Committee—for a range of possible roles, including a return to the Office of Congressional and Intergovernmental Affairs, where she worked under Obama; and
  • Sharon Block, head of DOL’s policy office under Obama, for a senior role.

Senate Dilemma

Some of these contenders are seen as possibilities for other jobs in the Biden administration, or they could be asked to stay on as second-in-command when a nominee is confirmed as their boss, the sources said. They also could wind up getting nominated for the same role, only without the acting title, the sources said.

Previous administrations have turned to acting sub-Cabinet appointments to advance policies rather than wait for the prolonged Senate confirmation process to play out. The Biden team’s approach reflects a commitment to staff DOL agencies with seasoned labor officials who, in a less-pressing climate, would be considered for higher-status jobs that lack the acting label.

In fact, one of the tensions underlying this process, some of the sources said, is that people under consideration may prefer to hold out for a presidential nomination. Those who are offered acting jobs must decide whether to help jump-start the Biden administration, knowing that early stage work at subagencies such as WHD or OSHA would likely eliminate them from contention to land a permanent post because actions they could take might make it much harder to get confirmed.

That factor has traditionally compelled administrations to wall-off future nominees from their eventual office.

OSHA Urgency

For instance, at OSHA, the acting assistant secretary will be responsible for carrying out the president-elect’s pledge to quickly unveil a new workplace emergency temporary standard to shield workers from the coronavirus. That undertaking is certain to produce strong opposition from the business lobby and GOP lawmakers, who could use a temporary regulation as a rationale for prolonging or blocking a nomination to remove the acting tag.

Confirmation hurdles for any of Biden’s nominees will only become steeper if Republicans hold onto their Senate majority after Jan. 5 runoffs for two Georgia seats.

Worker advocates and union officials eager to see the next administration reverse the Trump Labor Department’s employer-centric philosophy say it is essential to minimize the effect of procedural delays in the Senate.

“We are in such a catastrophic economic time,” said Catherine Fisk, an employment law professor at the University of California at Berkeley. “It appears to me at least that the voters who voted for Biden are expecting action on workplace safety, where OSHA has been missing in action, and has largely confined itself to issuing guidance and seeking, in the relative terms, tiny fines for egregious problems.”

“The economy needs people to act,” she added.

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

To contact the editors responsible for this story: John Lauinger at jlauinger@bloomberglaw.com; Karl Hardy at khardy@bloomberglaw.com

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