Punching In: Su’s Future at Labor Unclear Even if Harris Wins

Monday morning musings for workplace watchers.

Much Ado About Su | Citation Appeal Centers On Detainees’ Status

Rebecca Rainey: While we don’t know what the results of the presidential election will be Tuesday, one thing is for sure: Acting Secretary Julie Su will have to resign at the end of the administration.

While that’s an obvious move if former President Donald Trump is elected, it’s also expected if Vice President Kamala Harris wins, observers say.

“Certainly if it’s a Trump administration coming in those resignations will be accepted en masse. To the extent anybody has not tendered their resignation, I suggest they will have their resignation tendered for them,” said James A. Paretti, Jr., a shareholder at Littler Mendelson PC. “A little bit different with respect to if the Harris administration comes in.”

At the end of a presidential administration, the outgoing administration asks for letters of resignation from all of its political appointees, according to Anne Joseph O’Connell, a lawyer and an administrative law professor at Stanford University, “just to make life easier for the new person coming in.”

During the transition from Reagan to Bush senior, the last transition between presidents of the same party, when letters of resignation were first requested, “no one turned them in” she said.

“They actually had to push really hard to get people to send in letters so that Bush could kind of choose who to keep and who he wanted to replace,” she said. “The assumption was everyone was going to stay over, but then they were going to get pared down.”

If Harris wins, that presents a lot of questions for Su, who has been serving as acting leader of the agency since March 2023 and had to be nominated to the position twice because she was unable to win support from Republicans in the Senate.

It’s also an open question as to whether a Harris administration would have the political capital in the Senate to move her nominees, if Republicans maintain their narrow minority or flip enough seats to take over the upper chamber, a prospect that could be influential on her pick for labor secretary.

“Maybe she’s picking someone a little bit more centrist who might attract bipartisan support, or at least not inflame folks on the other side of the aisle,” Paretti said.

Julie Su, nominee to be the next Secretary of Labor, speaks during an event at the White House March 1, 2023.

Photo by Win McNamee/Getty Images

Tre’Vaughn Howard: Two California organizations that provide policy and legal support for immigrants are trying to remain in the fight to recognize some detained migrants as workers and oppose a private prison company’s attempt to reverse the state’s $104,510 fine related to unsafe working conditions for detainees.

California Collaborative for Immigrant Justice along with Worksafe assisted the detained workers in filing a complaint with Cal/OSHA—which issued citations and fines against GEO Group Inc. including a willful violation of the Aerosol Transmissible Diseases Standard. The groups are asking for third-party status in GEO’s bid to contest the fines.

If they attain third-party status, the groups—which have communicated directly with the detained immigrants—could help Cal/OSHA’s case before an administrative law judge in the state’s Occupational Safety and Health Appeals Board by adding more fuel to the claims of unsafe working conditions faced by detainees.

“I was proud to be part of this, and that the complainants were willing to trust CCIJ,” said Karin Umfrey, a senior staff attorney for Worksafe.

GEO, one of the largest private prison companies, is facing allegations of making immigrant detainees work in its civil detention centers through its volunteer work program. GEO didn’t respond to a request for comment.

The workers have also filed a class action lawsuit challenging the program, according to CCIJ. The docket for the case is sealed.

The state’s Occupational Safety and Health Appeals Board hasn’t recognized CCIJ and Worksafe as third-party representatives because they’re still trying to determine if they think detained immigrants are employees under California law, according to Mariel Villarreal, a senior attorney for CCIJ.

GEO has since contested the violations and in other legal cases has made clear it doesn’t recognize detainees as employees.

However, since citing the company, Cal/OSHA has clearly stated it views the detainees as workers—which is a legal dispute that could be heard before an ALJ if the parties don’t settle the citations before then.

“It’s a big deal that they recognized these detained workers as employees under California law and are trying to give them the same protections that they give other workers in California,” Villarreal said.

The company recently lost an interlocutory appeal on another case challenging the volunteer work program in the US Court of Appeals for the Tenth Circuit.

GEO acted too soon in appealing a lower court decision that blocked GEO from claiming a derivative sovereign immunity defense against the class of detainees asserting unjust enrichment and human trafficking claims, the Tenth Circuit said.

The detainees assert the company forced them to perform janitorial work and that GEO operates a voluntary work program in which detainees perform tasks such as food preparation and laundry for only $1 per day. GEO operates immigrant detention centers for US Immigration and Customs Enforcement, according to the detainees’ brief.

We’re punching out. Daily Labor Report subscribers please check in for updates during the week, and feel free to reach out to us.