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Punching In: Labor Watchdog Vacancy Puts Trump in Tough Spot

June 22, 2020, 9:45 AM

Monday morning musings for workplace watchers

Who’s Watching DOL? | EEOC’s ‘Conciliation’ Push | Racial Disparities in UI Access

Ben Penn: An era of leadership uncertainty commences at the Labor Department’s internal watchdog this week after Inspector General Scott Dahl retired Sunday.

The vacancy atop the Office of Inspector General is unlikely to prevent the watchdog from charging ahead with oversight of the department’s pandemic response. But the lack of a Senate-confirmed leader begs the question: Can President Donald Trump get a preferred pick for labor watchdog confirmed in his first term?

The White House in a re-election year typically would want to ensure inspector general vacancies are filled because IGs aren’t term-limited and serve at the pleasure of the president from one administration into the next. If former Vice President Joe Biden were to win in November, it wouldn’t be a good look for him to remove a Trump-nominated DOL watchdog just for the sake of partisanship.

Yet the administration and the Senate have many pressing priorities this year. There’s the election, the pandemic, the recession, upcoming talks on another major relief bill, and police reform legislation. It would be a logistical challenge to try to squeeze a DOL watchdog nominee through the Senate with many other picks waiting in line.

Plus, Dahl is said to have caught the department by surprise with his retirement announcement June 2. That means a search for his replacement is in its early stages, if it’s begun at all.

If Labor Secretary Gene Scalia already has someone in mind, would the White House heading into an election want to put a nominee through a grilling by Democratic senators that’s sure to focus on the administration’s recent purge of agency IGs?

And if conventional wisdom says to bet on an acting IG replacing Dahl through at least the election, if not early next year, who’ll get the assignment? Dahl’s career deputy waits in the wings, but the White House also could install its own choice, as it did at the State Department. My inquiries to DOL, the IG’s office, and the White House didn’t yield a response.

Speaking of presidential election implications in the labor arena, the Supreme Court’s DACA ruling set off a hullabaloo about how the decision could be interpreted to make it more difficult for a Democratic president to undo Trump actions.

Some on the right who were frustrated with the 5-4 decision found a silver lining in Justice Clarence Thomas’s dissent. The majority holding, which blocked Trump from ending the Obama-era immigration program, might create “perverse incentives” for outgoing administrations, Thomas wrote. An administration could rely on the DACA decision to “bind their successors by unlawfully adopting significant legal changes through Executive Branch agency memoranda.”

Conservatives and administrative law scholars had a field day on Twitter by pondering if liberals may wind up ruing the day they celebrated their DACA victory.

If Thomas’s assertion were to be realized, it could be a blessing for big guns in the business community eager to litigate the next Democratic administration’s workplace agenda. But this is all speculation.

“Justice Thomas exaggerates both the novelty and the effect of the majority’s decision, which is just a straightforward application of longstanding administrative law doctrine,” said Cary Coglianese, an expert on administrative law at the University of Pennsylvania Law School. “New administrations are not straitjacketed but must just do what agencies always must do, namely, articulate sufficient reasons at the time they make their decisions.”

Paige Smith: We have new details about the conciliation pilot that Equal Employment Opportunity Commission Chair Janet Dhillon rolled out late last month.

The program will temporarily change how the EEOC seeks to resolve allegations of workplace discrimination by requiring conciliation offers to be approved by certain levels of agency management before being presented to employers. There are already statutory limits on compensatory and punitive damages that govern how much workers can recover, based on an employer’s size.

Now, as the conciliation offer increases as a percentage of the statutory cap, a higher level of management must approve the request, a source familiar with the program told Bloomberg Law.

For example, if an offer is 50% of the statutory cap, the EEOC local office director has approval authority. But if it’s 90% or more of the cap, then the EEOC’s director of the Office of Field Programs must sign off.

Jaclyn Diaz: Unemployed workers seeking jobless aid from state workforce agencies are still having problems accessing benefits, as daylong lines in Kentucky made clear. But the issue of access to aid is even more acute for black, Hispanic, and female workers, economists told the House Select Subcommittee on the Coronavirus Crisis during a hearing on the unemployment crisis last week.

In a normal economy, unemployed black and Hispanic workers are less likely than white workers to get unemployment, said William Spriggs, chief economist to the AFL-CIO and economics professor at Howard University. For the week ending May 23, about 35% of all people receiving unemployment insurance benefits got help because of the Pandemic Unemployment Assistance program created by the CARES Act.

But nine states were reporting no claims as of that time. That included states like Arkansas, Florida, Kentucky, Georgia, and West Virginia that have higher shares of black workers, decreasing access to the program for black families, Spriggs said.

Calls to end the additional $600 weekly unemployment bonus that expires at the end of July will only further hurt minority workers, said Michele Evermore, senior researcher and policy analyst with the National Employment Law Project. During the third quarter of 2019, a period of record low unemployment, the average duration of an unemployment spell was 21 weeks, she said in her testimony to Congress.

“Black workers averaged 25.9 weeks in their unemployment period. A 26-week benefit period would completely cover the average duration for black workers; any duration reduction therefore statistically harms black workers more,” she told the panel.

The problem may be further exacerbated for workers of color in states like Ohio that are changing eligibility requirements for workers to receive benefits. Ohio’s Gov. Mike DeWine (R) signed an executive order last week stating workers can lose unemployment benefits if they fail to return to work due to lack of child care.

The House Education and Labor Committee will have a hearing at noon today on how Covid-19 widened racial inequities in education, health, and the workforce.

Ian Kullgren: Spriggs penned a scathing open letter to members of his own profession, arguing that economists are quick to ignore racism in their work.

“In the hands of far too many economists, it remains with the assumption that African Americans are inferior until proven otherwise,” Spriggs wrote. He described in a subsequent interview with Marketplace how economists subtly practice statistical discrimination—for example, the assumption that minorities are more likely to be under-educated and poor without examining the systemic racism that produces disparities.

“The model begins with a fallacy that assumes racial differences as a natural order,” Spriggs wrote. “It biases the model, because there is a built-in excuse for disparities that cannot be solved. And, invariably, in the overwhelming case of economic analysis, assumes that there is something ‘deficient’ about black people.”

The American Economic Association—which Spriggs called out for providing “‘scientific’ succor” to the eugenics movement in the past—acknowledged a “hostile” environment for black economists in the field, according to a June 5 statement. A 2019 AEA survey found that only 3% of economists identify as black compared with 13% of the U.S. population; nearly half reported experiences of discrimination in the field.

“We recognize that we have only begun to understand racism and its impact on our profession and our discipline,” the group wrote.

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. See you back here next Monday.

To contact the reporters on this story: Ben Penn in Washington at bpenn@bloomberglaw.com; Paige Smith in Washington at psmith@bloomberglaw.com; Jaclyn Diaz in Washington at jdiaz@bloomberglaw.com; Ian Kullgren in Washington at ikullgren@bloombergindustry.com

To contact the editor responsible for this story: John Lauinger at jlauinger@bloomberglaw.com

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