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Labor Department Finalizes Expanded Secretarial Review Power (1)

May 19, 2020, 5:23 PMUpdated: May 19, 2020, 8:49 PM

Labor Secretary Eugene Scalia will assert new authority to overturn rulings from an internal review panel, despite public criticism of the change, in a move he says will make government more accountable to voters.

The Department of Labor, in a final rule issued Tuesday, adopted a framework to expand secretarial review power over the Administrative Review Board, in line with an order first announced in February. The review board hears appeals from parties that disagree with a decision from one of the department’s administrative law judges, usually involving employer-employee disputes.

The order gave the Labor secretary the discretion to review and overturn the panel’s decisions, including rulings on federal contract pay discrimination, wage-hour violations, and whistleblower cases. The rule, which makes technical revisions to DOL regulations needed to implement the order, takes effect 30 days from its publication in the Federal Register, scheduled for Wednesday.

In an op-ed published Tuesday by the conservative website Townhall, Scalia justified the action as a commitment to ensure DOL makes decisions in accordance with the law. He argued that instead of punting tough decisions to the review board, labor secretaries should have oversight over the panel’s rulings, so the public can hold him and the Trump administration accountable at the ballot box.

“The fact that a department head has the power to review decisions by his agency means he cannot deflect blame when something goes wrong,” Scalia wrote in the op-ed.

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The department acknowledged receiving “significant adverse comments” that the new process may delay cases, lead to inconsistencies in how decisions are made, or jeopardize fairness and due process, according to the rule. “After carefully considering the comments received,” the rule said, “the Department determined that none of the comments required refraining to make the revisions set forth” in the initial order.

The department doesn’t anticipate the secretary frequently exercising review over a panel decision. When the newfound authority is used, the secretary’s review is expected to add only a “modest extension” of time, or about two months, DOL said in the rule.

During interviews with Bloomberg Law earlier this year, outside attorneys and former department officials offered mixed reviews of the secretary’s order. Some applauded the policy for providing an extra avenue to dispute review board decisions by petitioning the secretary, but others worried it could politicize the process and increase opportunities for lobbying on particular cases.

In responding Tuesday to the public comments, the department didn’t provide details on how the secretary will decide when to intervene. Instead, DOL reiterated that secretarial review will apply only when cases “present a matter of exceptional importance.”

The new review authority also will apply to decisions made by the DOL’s Board of Alien Labor Certification Appeals. That panel considers employer appeals of DOL determinations related to certifications to hire foreign workers under various visa programs.

(Updated to include Secretary Scalia's op-ed.)

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

To contact the editors responsible for this story: Melissa B. Robinson at mrobinson@bloomberglaw.com; John Lauinger at jlauinger@bloomberglaw.com

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