Monday morning musings for workplace watchers.
DOL Insider Comes to the Hill |The Independent Agencies That Aren’t
Rebecca Rainey: President Donald Trump’s picks to lead the US Department of Labor will inch toward confirmation this week.
The Senate Health, Education, Labor, and Pensions Committee will vote on advancing Lori Chavez-DeRemer’s nomination to serve as Secretary of Labor and hold a hearing to consider Keith Sonderling’s nomination to serve as the No. 2 at the agency Thursday morning.
The panel may get more details on the record about the direction Chavez-DeRemer and Sonderling want to take agency and the changes already underway.
Chavez-DeRemer didn’t divulge much about her plans for the agency during her nomination hearing last week, outside of her interest in expanding job training opportunities and willingness to address business flexibility on independent contractor and joint employment issues.
When it came to more pointed questions about policy and personnel changes at the DOL, Chavez-DeRemer said she couldn’t answer because she wasn’t yet inside the agency.
However, Sonderling has been serving as a senior adviser to the Acting Secretary of Labor Vince Micone since Trump took office last month. During that time, Trump has issued various directives that impact the DOL, including orders for the Department of Government Efficiency to access the agency’s computer systems for a “software modernization initiative,” and to terminate probationary employees.
What Chavez-DeRemer did say during the hearing may have eased her upcoming vote out of committee and tamped down concerns from the business community about whether her past support of a union-backed labor rights expansion bill, the Protecting the Right to Organize Act, would impact her leadership.
“Chavez-DeRemer made clear that she will work to advance the president’s agenda to promote business growth and working Americans, including protecting the hundreds of thousands of franchise small businesses and their millions of workers in the U.S.” said Matt Haller, president of the International Franchise Association.
But her disownership of the PRO Act may have also cost her some support among Democrats and worker advocates, making her confirmation vote tally before the full Senate murkier.
“I wish she could have articulated a vision for the kind of Secretary she plans to be,” said Judy Conti, director of government affairs at the left-leaning National Employment Law Project. “I think saying I’m going to put workers first, and I’m going to examine everything, and I’ll be here to listen to everybody, doesn’t really give me much of an idea of how she plans to run that department.”
Robert Iafolla: How Trump’s sweeping order asserting his domination over the administrative state will impact individual independent agencies depends on how much autonomy they had to begin with.
Trump’s command-and-control framework will have a profound effect on an agency like the National Labor Relations Board, which enjoyed a high degree of sovereignty from the executive branch via features like its independent litigating authority and its freedom to develop regulations without needing the White House’s approval.
Former NLRB Chair Lauren McFerran said she rarely had contact with the White House during her nearly 10 years on the board.
Trump’s executive order “fundamentally changes the way the board does business,” said McFerran, now a senior fellow at The Century Foundation.
On the other side of the spectrum is an agency like the Equal Employment Opportunity Commission. Although that agency has markers of independence—including the authority to adjudicate disputes, and members who serve staggered terms designed to overlap presidential administrations—it regularly coordinates with the executive branch on a range of issues, said former acting EEOC Chair Victoria Lipnic.
In fact, the Justice Department has classified the EEOC as a “quasi-independent agency” in legal memos, although not every commissioner has agreed with that view, she said.
Trump’s executive order won’t have a deep impact on how the EEOC operates, said Lipnic, a partner at Resolution Economics. The commission already submits proposed regulations to the White House’s Office of Information and Regulatory Affairs for review, its budget goes through the White House’s Office of Management and Budget, and any cases that might be appealed to the US Supreme Court are coordinated with and litigated by the Justice Department, she said.
But the EEOC’s adjudication of job bias cases in the federal sector could be affected, Lipnic said. That’s a significant share of the agency’s activity, taking up about a third of the commissioners’ time, she said.
Lipnic conceded that the executive order’s assertion that independent agencies must adopt the president and attorney general’s view of the law could be used to order the EEOC to rule against a particular federal worker in an individual case.
“I suppose that could happen, but it’s a darker view,” she said.
If that scenario arose, it would be up to each commissioner to decide how to proceed—with one option being to resign in protest.
“I want to believe that’s a highly unlikely scenario,” she said.
We’re punching out. Daily Labor Report subscribers please check in for updates during the week, and feel free to reach out to us.
Rebecca Klar in Washington also contributed to this story.
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