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Scalia Confirmed as Labor Secretary With No Democratic Votes (1)

Sept. 26, 2019, 6:24 PMUpdated: Sept. 26, 2019, 8:14 PM

The Senate voted along strictly party lines to confirm Eugene Scalia for labor secretary, delivering a new leader to an agency that’s rapidly finalizing the Trump administration’s regulatory agenda.

The 53-44 vote featured all of the chamber’s Republicans supporting Scalia, largely based on his reputation as an elite labor and employment attorney. Senate Democrats, who voted uniformly against Scalia, raised objections to President Donald Trump selecting a corporate advocate as the nation’s top official tasked with protecting workers on the job.

Scalia, who has decades of experience defending Fortune 500 companies in court, will return to the Labor Department for the first time since 2003. The son of former Supreme Court Justice Antonin Scalia served as the agency’s chief legal officer and No. 3 official for one year in the George W. Bush administration.

Sen. Lamar Alexander (R-Tenn.), the chairman of the Health, Education, Labor and Pensions Committee, cited a wide range of public support for Scalia in floor remarks delivered Sept. 25. That includes a letter from former Obama administration official Cass Sunstein, a scholar who praised Scalia for his “decency” and “case-by-case” approach to legal issues in a letter to lawmakers.

“I have received 32 letters in support of Mr. Scalia’s nomination from small business owners, employers, workers, and Mr. Scalia’s colleagues and mentees, including a number of women and former career attorneys at the Department of Labor,” Alexander said.

On the opposite side of the aisle, the chamber’s Democratic leadership huddled hours before the Senate vote to raise public awareness in an ultimately failed effort to sink the nomination.

“President Trump’s nomination of Mr. Scalia is a gigantic missed opportunity to nominate a fighter for workers to be the next labor secretary,” said Senate Minority Leader Chuck Schumer (D-N.Y.). “Instead, President Trump chose someone who almost instinctively sides with corporate interests over the rights of workers. This nomination is a real shame; I’d call it a disgrace.”

The only three lawmakers who didn’t make an appearance were the three Democratic presidential candidates, Sens. Elizabeth Warren (D-Mass.), Bernie Sanders (I-Vt.), and Cory Booker (D-N.J.).

At his confirmation hearing Sept. 19, Scalia defended his record of taking the department’s worker-protection mission seriously during his time as DOL solicitor. He also highlighted his private-sector work advising clients to eradicate poor workplace conditions and representing a few employees pro bono.

Active Rulemaking

Scalia’s confirmation comes as the Labor Department recently unveiled a highly anticipated rule to expand overtime pay eligibility to more than 1 million workers.

His expertise as an administrative law scholar will come in handy as the department’s likely to face a legal challenge from those who urged the DOL to fight to save an Obama-era proposal. That initiative, which stalled in court, would have made some 4 million workers newly eligible for time-and-a-half-pay for all hours beyond 40 per week.

The DOL also is finalizing regulations to limit shared liability for businesses in staffing and franchise relationships, rolling out a new industry-led apprenticeship program, and updating overtime pay calculations.

The department wants to cement those rules before the end of Trump’s first term.

Scalia will assume control from acting Labor Secretary Patrick Pizzella, who’s now poised to resume his role as deputy secretary. Pizzella took the top spot in July when the president’s first labor chief, Alexander Acosta, resigned amid public outrage over a decade-old plea deal he arranged for alleged sex trafficker Jeffrey Epstein.

To contact the reporter on this story: Ben Penn in Washington at bpenn@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Karl Hardy at khardy@bloomberglaw.com