Punching In: Labor Department Skips Summer Break

Monday morning musings for workplace watchers

More Wage-Hour Moves | EEOC Nominees Latest | Sinema Goes Middle

Ben Penn: Congress’s summer recess is fully upon us, but the typically dreary D.C. August will be anything but inside the Labor Department.

The DOL Wage and Hour Division is reviewing public comments to finalize the “Big Three” rules that many businesses have labeled their top labor policy priorities. The division is fast at work, aiming to complete the trio before the end of the year. I’m told we should expect the final rules to come out in the order they were proposed: overtime, regular rate, and “joint employer.”

The ambitious timeline may seem like a pipe dream. Then again, Acting Labor Secretary Pat Pizzella doesn’t mess around when it comes to efficiency. He wants staff to be “laser” focused on regulations.

The WHD recently brought on two politically-appointed senior policy advisers to assist in the effort, per a DOL spokesman: veteran Philip Morris lobbyist Beverly McKittrick (who appears to have come out of retirement, per her LinkedIn profile) and Sarah Martin, a former GOP House Labor Committee staffer. More wage-hour politicals are arriving soon, sources say, and they’ll all devote time to rule drafting.

The goal—especially for the new overtime rule—is to safeguard the regulations from a potential Democratic White House in 2021. As the Trump administration is acutely aware, the overtime rule is almost certain to prompt legal challenges. The sooner it’s finalized, the more time a Trump Justice Department would have to defend the regulation in court before a new administration could flip positions and attempt to restore the Obama DOL’s version of the rule, which would make an estimated four times more workers eligible for time-and-a-half pay.

Finally, there’s the Gene Scalia element. Republicans hope to get him confirmed as labor secretary as soon as October. Pizzella isn’t the type to sit on finished regulations: If OT is ready to drop with Scalia not yet confirmed, the rule will likely be in the Federal Register before Scalia shows up at the Perkins Building.

Jaclyn Diaz: Charlotte Burrows (D) and Sharon Gustafson were confirmed for jobs with the Equal Employment Opportunity Commission in the waning hours before the Senate began its five-week recess. Burrows gets her second term as a commissioner and Gustafson will serve as the agency’s general counsel.

When lawmakers return after Labor Day, the Health, Education, Labor, and Pensions Committee will still have plenty of work to do getting labor nominees out the door before the end of 2019. Scalia’s nomination is just one.

Sen. Patty Murray (D-Wash.) reminded members last week that there are two EEOC spots left to be filled.

It remains unclear when Keith Sonderling (R), a nominee to fill the open Republican seat on the commission, could get a vote. There also remains the question of the yet-to-be-nominated Democrat for the fifth spot on the EEOC. Sources say there is one potential pick on the radar, but a nominee hasn’t been announced (via Tweet or otherwise) by President Donald Trump.

Murray and HELP Committee Chairman Lamar Alexander (R-Tenn.) have pledged to work together to get the White House moving on Sonderling’s nomination after the recess, but it sounds like Democrats want to pair him with a nominee for the open Democrat seat.

It’s ultimately up to Senate Majority Leader Mitch McConnell (R-Ky.) to decide when to put the nominations to the floor and it’s clear his priority is voting on judge nominations. The HELP committee also has to contend with its own desire to focus on health issues this fall. Sen. Tim Scott (R-S.C.) told me the focus in September will be on drug pricing.

Maybe we should place our bets for an EEOC Christmas miracle?

Chris Opfer: Arizona Democrat Kyrsten Sinema crossed the aisle twice last week to team up with Republicans on a pair of bills. That makes the freshman senator something of a unicorn, at least when it comes to bread and butter labor and employment issues that have garnered little if any bipartisanship in recent years.

Sinema and Sen. Bill Cassidy (R-La.) unveiled a long-awaited new approach to paid leave, introducing legislation that would allow new parents to dip into child tax credits to pay for related time off from work. She also joined a handful of members, including Sens. James Lankford (R-Okla.) and John Cornyn (R-Texas), on a bill that would use trademark law to help shield franchisers from “joint employer” liability.

Neither measure has a snowball’s chance in the swamp of being signed into law anytime soon. Still, Sinema—a Blue Dog Coalition member who once called herself a “Prada socialist"—is likely to play a key role in any attempts at inter-party agreement on workplace legislation.

It’s easy for labor and employment watchers to forget that Lamar Alexander also has a reputation for reaching agreements with political opponents. His committee hasn’t exactly been a bastion of bipartisanship on workplace issues in recent years, with the exception of job training. But the 18-year Senate veteran is known throughout the halls of the Capitol as a deal maker.

It’s not yet clear who will take Alexander’s place atop the HELP Committee when he retires at the end of the year. Here’s who is next in line, seniority wise: Richard Burr (N.C.), Johnny Isakson (R-Ga.), Rand Paul (Ky.), and Susan Collins (Maine). Burr (Intelligence) and Isakson (Veterans’ Affairs) appear pretty comfortable in their roles leading other panels. It’s safe to say that conservative-leaning Paul and moderate Collins would offer contrasting approaches if tapped for the job. And don’t forget about Tim Scott (R-S.C.), who has been an active committee member during his second term in office.

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: copfer@bloomberglaw.com, bpenn@bloomberglaw.com, and jdiaz@bloomberglaw.com or on Twitter: @ChrisOpfer, @BenjaminPenn, and @jaclynmdiaz.

See you back here next Monday.

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