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Punching In: Acosta Hunkers Down, EEOC Eyes ‘Other’ Harassment

Feb. 25, 2019, 11:00 AM

Monday morning musings for workplace watchers

Dispatches from Mexico | Another Name for the Open NLRB Seat | Harassment: It’s Not Just Sex

Chris Opfer: Is there anyone in D.C. who wants to see the Mueller report come out this week more than Labor Secretary Alex Acosta? Last week, a federal judge found that Acosta and other prosecutors broke the law by failing to keep Jeffrey Epstein’s accusers aware of a plea deal in the teen sex trafficking and rape case against the Miami hedge fund mogul. This week, Acosta’s camp is hoping the Russia probe makes rising public criticism of the former U.S. Attorney for the Southern District of Florida nothing more than background noise.

Here’s what you need to know about the Acosta-Epstein saga:

  • What did the court say? Much of the public outcry has been over Epstein’s “sweetheart” deal in 2008, which sent him to jail for 13 months and allowed him to avoid more serious federal charges. Judge Kenneth Marra ruled that Acosta and others violated the Crime Victims’ Rights Act by hatching the plea deal without informing the alleged victims. Marra specifically said he was not ruling on whether the prosecutors let Epstein off too easy.
  • What’s next for the victims? They have 15 days to tell the court what they think is the appropriate remedy. Paul Cassell, a lawyer for the alleged victims, told me that asking Marra to scrap Epstein’s plea deal is one of the options on the table. Harvard Professor Alan Dershowitz, who was part of Epstein’s defense team, told me: “There is no constitutional way he can be retried on the same charges.”
  • Where is Epstein now? Living in the U.S. Virgin Islands, according to Florida Department of Law Enforcement records.
  • What about the DOJ investigation? The Justice Department is in the awkward position of defending the case (and possibly appealing Marra’s decision) while its Office of Professional Responsibility looks into whether Acosta and others committed prosecutor misconduct. That probe is ongoing and likely will take some time to shake out.
  • Will it cost Acosta his job? All signs point to no, at least for now. Acosta made the “best possible decision and deal” in a “very complicated case,” White House Press Secretary Sarah Huckabee Sanders told reporters Friday. President Donald Trump later the same day called Acosta “a fantastic labor secretary.” There are certainly some management-side operatives who would like to see Deputy Labor Secretary Pat Pizzella take over at the DOL and pick up the pace of putting the Trump administration’s stamp on labor policy. But lawmakers in Congress seem largely content to allow the court process and DOJ investigation to play out before calling for Acosta’s head.

In other labor and employment news, Bloomberg Law’s Hassan Kanu sat down with California lawyer Mark Spring to discuss a brewing worker classification fight in the Golden State for this week’s Punching In podcast.

Jaclyn Diaz: I’m back from the south of the border more tired than when I left, to be honest. I met some lovely people at the American Bar Association’s Federal Labor Standards Legislation Committee Midwinter Meeting last week, and I’ve returned with some fresh ideas on labor and employment topics that I’m excited to get into soon.

While there, I sat down with Equal Employment Opportunity Commission Member Charlotte Burrows (D).

The five-member EEOC now has only two commissioners, one short of a quorum.

To some extent, the agency was able to plan for the lack of quorum by delegating certain duties to experienced career staffers, Burrows said. But what happens six months or even a year down the road? Burrows said she hopes the quorum-less life doesn’t last that long.

The items that career staff aren’t handling is “a relatively small sliver of things,” Burrows said. That may be the case, but it seems as if that small sliver could have big implications.

Without a quorum, the agency can’t have public meetings to discuss important issues affecting workers, she said. It also can’t tackle big cases going forward that would require commission approval and all hands on deck to implement.

CO: And then there were two. Communications Workers of America attorney Jennifer Abruzzo is in the early mix for the open Democrat seat on the National Labor Relations Board, sources tell me. Abruzzo joins SEIU 32BJ General Counsel David Prouty as the two potential nominees currently being discussed on and off Capitol Hill.

Abruzzo, unlike Prouty, is an NLRB veteran. She worked as a board attorney for more than two decades, including as deputy general counsel during the Obama administration. She also had a brief stint as acting general counsel before leaving the agency last year. Abruzzo’s experience at the NLRB either makes her a good fit for the seat or more likely to be opposed by the business community (or both), depending on who you ask.

The word around Half Street is that business lobbyists will continue to push the White House and Congress to keep the seat open for the near future. They want to wait until around the time Lauren McFerran’s (D) term ends in December, when both Democratic seats could be filled at the same time as potentially part of a larger deal.

JD: Here’s a little more from Burrows before we punch out. The EEOC saw a nearly 14 percent increase in workers alleging sexual harassment from fiscal year 2017 to fiscal year 2018, Burrows said during a panel discussion last week.

She feels strongly that the U.S. is at a turning point on sexual harassment, that “there is a real understanding of the harm of it and there are efforts to prevent it.” But that same awareness can’t be said on significant harassment happening on the basis of anything other than sex.

So far the agency has seen that harassment based on race, religion, or national origin is a real problem that isn’t being addressed in the same way as sex-based harassment, according to Burrows. It’s more of a problem in certain industries than others, including construction and the oil and gas world, she said.

“One of the things I’m struggling with is how to address those issues and bring that into the fold so that we don’t have pockets or types of jobs where things that should really be unacceptable go unnoticed,” Burrows said.

We’re punching out. 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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To contact the reporter on this story: Chris Opfer in New York at copfer@bloomberglaw.com