The Trump administration labor rulemaking output will expand significantly in the coming month, acting Labor Secretary
“I won’t say which, but I’m anticipating we’ll have four rules go final and we’ll probably issue a dozen or so” proposed rules before the current fiscal year ends on Sept. 30, Pizzella said in an interview Aug. 29.
The Labor Department currently has five final regulations awaiting White House approval before public release, including rules to set a new salary threshold for overtime pay eligibility; determine drug testing for state jobless benefits; revise requirements for protecting workers from toxic beryllium dust; and update the employer certification process for agricultural visas.
The proposals in the White House review pipeline would extend financial reporting requirements to public sector mid-level union chapters; clarify tip regulations under the Fair Labor Standards Act; and give businesses more flexibility in paying overtime to workers with fluctuating schedules.
Another high-priority final rule for the White House and business community, a regulation to narrow corporations’ joint employment liability with affiliated companies, should be completed before the end of 2019, Pizzella said.
Speaking after a Labor Day ceremony outside the DOL headquarters in Washington, Pizzella’s comments bolstered his commitment to deregulate at a rapid clip, as several of the imminent rulemakings would unwind rules from the Obama administration or are estimated to provide cost savings to employers. His tone stands in stark contrast to that of his predecessor,
“We are going to continue to focus like a laser beam on the president’s regulatory agenda,” Pizzella said. “Our employees here have really rolled up their sleeves and we are going to accomplish all that we can—as we prepare for a new secretary.”
“I look forward to being Gene Scalia’s deputy,” Pizzella said of his presumed return to the same No. 2 role he had under Acosta. “I’ve worked with Gene before; we were colleagues back in the Chao administration, of course, and we remain friends ever since.” Pizzella was an assistant secretary at DOL for most of the George W. Bush administration when
Scalia is an “ideal selection to be secretary of labor with his background having been here and being one of the premier labor lawyers in this country, as well as someone who has litigated against the department and litigated successfully,” Pizzella added. “So that’s a wonderful skill set to be in the department.”
Scalia’s background in administrative law could be valuable as the agency prepares to mount a legal defense of some of the regulations after they’re finalized.
“We review carefully our rules in anticipation that they will likely be challenged in court,” Pizzella said. “Now the last administration, we know about that record when they went to court. We want to avoid that. Most of the time, rules are struck down because the rule that was promulgated went beyond the authority and the statute.”
Several of the Obama DOL’s key regulations—on overtime pay, conflicted retirement advice, transparency of union avoidance campaigns, and federal contractor labor violation disclosures—were invalidated by federal judges and never took effect. In some cases, that was because the Trump administration’s Justice Department stopped defending them in court. Scalia was the lead counsel representing the U.S. Chamber of Commerce in persuading a judge last year to strike down the Obama-era fiduciary rule that would have required investment advisers to put the interest of retirement savers above their own.
The current administration has been motivated to release labor rules at a breakneck pace in part because the sooner they are issued, the more time the Trump DOJ will have to defend them from potential lawsuits from worker advocates and Democratic state attorneys general. A new president in 2021 could opt to reverse course.
“We will stay within the four corners of the statute, but even if you do that, someone takes you to court. That’s the American way of life, what can I tell you? That’s why God created lawyers,” Pizzella quipped.