Punching In: Acosta, Democrats Have a Few Things to Discuss

Monday morning musings for workplace watchers

Nuclear Mitch | IRAP Gets a Bad Rap | Fresh Wage and Hour Faces

Jaclyn Diaz: The Labor Department is getting an early start on a busy week by rolling out its new “joint employer” rule later this morning. We have the scoop on what’s in the proposed regulation.

Labor Secretary Alex Acosta will likely face some music about his past actions as a federal prosecutor when he heads to Capitol Hill Wednesday. Acosta is scheduled to go before a House Appropriations subcommittee to discuss the Labor Department’s 2020 budget proposal. This will be the first time he’s met publicly with members of the Democrat-controlled House since a new whirlwind of public attention to the Jeffrey Epstein teen sex trafficking case swept in. Some Democrats are calling for Acosta to step down over his role in the Miami hedge fund operator’s controversial plea deal.

So will Acosta get a grilling on all things Epstein?

The Labor-HHS Subcommittee, led by Chairwoman Rep. Rosa DeLauro (D-Conn.), has a long list of items they’d like to discuss. On the agenda are the $160 million the DOL requested to expand an apprenticeship program that hasn’t exactly been a hit, the tip pool rulemaking fiasco, the newly released overtime proposal, and the possible move to let 16- and 17-year-old health-care workers operate patient lift machines without supervision.

I spoke with DeLauro a few weeks ago about what her plans might be once a budget hearing rolled around. She said the panel is likely to focus on proposed regulatory activity and budget requests.

At some point, however, someone is probably going to get into Epstein. Rep. Lois Frankel (D-Fla.) sits on the subcommittee and represents a district not far from the Palm Beach mansion where Epstein allegedly abused scores of teenagers. She’s also part of a group that in February called on Acosta to resign over his role as prosecutor in the deal, which allowed Epstein to avoid federal charges and serve 13 months in state prison on lesser offenses.

In this week’s Punching In podcast, Robert Iafolla talked with UConn School of Law Professor Sachin Pandya about a growing trend in employment law: using it to go after entities that aren’t employers.

Chris Opfer: Over in the Senate, Majority Leader Mitch McConnell (R-Ky.) is hatching a plan that would make it easier for lawmakers to confirm Trump administration nominees for several key Labor Department and other posts.

The Senate is slated to vote this week on a resolution that would largely slash required floor debate times per nominee from 30 hours to two hours. The current debate requirements have posed a hurdle. Democrats haven’t been willing to waive them and McConnell doesn’t want to chew up precious floor time on relatively lower-level nominees. That includes Cheryl Stanton (Wage and Hour Division), Scott Mugno (Occupational Safety and Health Administration), and John Pallasch (Employment & Training Administration).

McConnell will likely have to go “nuclear” if he wants to get the resolution passed. Senate rules require 60 votes to avoid a filibuster, meaning seven Democrats would have to cross the aisle and join with all 53 Republicans to pass the measure. But some influential folks—including President Donald Trump—have been urging McConnell to change the rules to require a simple majority vote to pass legislation.

That would be a game changer. Scrapping the filibuster wouldn’t have a huge impact in this Congress because the Democrat-controlled House isn’t likely to take up bills passed by the GOP majority in the Senate. If one party were to eventually gain control of both chambers and the White House, however, the change would allow it to pass most or all of its legislative wish list. That’s not to mention that shortened floor debate times would pave the way for whoever is in the White House to quickly fill political leadership positions at the agencies enforcing those laws.

McConnell is using the nuclear threat as a bargaining chip to try to convince Democrats to agree to shaving down nominee floor debate times. We may find out soon what will happen if they don’t blink.

JD: The DOL’s plan to create an industry-led apprenticeship program nationwide has done something rare in Washington: It’s united much of the business community, policymakers, employers, and labor unions. The problem for the Trump administration is that those strange bedfellows are widely skeptical about the proposed Industry Recognized Apprenticeship Program.

There certainly are a few parties that have expressed interest in IRAP, which would allow businesses to join together and create apprenticeship programs certified by a third party. But business groups at a House hearing last week didn’t sound interested. Part of the problem is that the DOL hasn’t provided details about what participants will have to do to get their programs certified.

“No one wants to spend a bunch of time navigating whether a program makes sense,” said Bridget Gainer, vice president of global public affairs for AON, a British global professional services company. “I doubt any one large employer will spend a lot of time” trying to understand the new program requirements, she added.

The department in February unexpectedly canceled the announcement of a $150 million grant for the program and a separate $73 million for states to use to expand the separate registered apprenticeship program. The DOL says the move was postponed because of the government shutdown, but sources on both sides tell me they’re not exactly buying that explanation.

The DOL didn’t provide an update when I asked when we might see something finally roll out.

CO: A couple of new faces have recently popped up over at the Frances Perkins building. Lawyers David McFadden and Bradford Kelley joined the Labor Department’s Wage and Hour Division in senior policy roles last month.

This is the second lap for McFadden, who had a cup of coffee as a DOL special assistant at the tail end of the George W. Bush administration. It’s safe to say McFadden wasn’t exactly a fan of what the Obama folks did with the place. Not long after leaving the department, he criticized the new Wage and Hour Division leadership for working to “prolong the recession” and called Deputy WHD Administrator Nancy Leppink “a stereotypically narrow and humorless bureaucrat.”

McFadden, in a post on Americans for Limited Government’s Net Right Daily (a precursor to the Daily Torch) took aim at the WHD for killing the practice of issuing opinion letters to help businesses and workers navigate specific compensation law questions. He also wasn’t happy about the department signaling that it would take a closer look at the misclassification of employees as independent contractors.

The Lilly Ledbetter Fair Pay Act is another thing that rubbed McFadden the wrong way. The law, which Obama signed during his first month in office, extends the statute of limitations in pay discrimination cases. McFadden called it the start of Obama’s “project of giving employers additional reasons not to hire American workers.”

Kelley, meanwhile, clerked for a federal judge in Louisiana and worked at two D.C. litigation firms before joining the department.

We’re punching out. Before we do, here’s hearty congratulations to DOL chief of staff Nick Geale, who last week took the plunge, grabbed the hitch, and did whatever else people do when they get married. Those of us who are also staring down the barrel of ... ahem, preparing to say ... some vows welcome any advice.

Daily Labor Report subscribers can check in during the week for updates. In the meantime, feel free to reach out to us on any and all labor and employment news: copfer@bloomberglaw.com and jdiaz@bloomberglaw.com or on Twitter: @ChrisOpfer and @JaclynmDiaz.

See you back here next Monday.

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