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Scalia Defends His Ties to Big Business in Senate Hearing (2)

Sept. 19, 2019, 1:35 PMUpdated: Sept. 19, 2019, 6:16 PM

Labor secretary nominee Eugene Scalia tried to fend off concerns about his lengthy record defending corporations in court during a Sept. 19 Senate confirmation hearing.

Scalia looked to counter Democrat and union criticisms about his representation of many Fortune 500 companies. In addition to public-facing litigation, Scalia said he has privately advised employers in an effort to improve problematic workplace conditions.

“I have advised clients to fire, or take other serious action, against executives and other managers who in my judgment engaged in harassment or other misconduct,” Scalia said during his Senate Health, Education, Labor and Pensions Committee hearing. “I have been direct and forceful in telling clients to take steps that, sometimes, they wished they did not have to.”

The Republican majority in the Senate and Scalia’s lack of personal controversies all but guarantee the nominee eventually will be confirmed as labor secretary this fall, despite some concerns from Democrats, unions, and worker advocates. The panel already is scheduled to vote Sept. 24 on whether to advance Scalia to the full Senate, which would tee up a final confirmation vote.

His confirmation appeared assured after several HELP Committee Republicans shared their intent to vote for him.

“I do intend to vote for him,” Sen. Bill Cassidy (R-La.), told Bloomberg Law as he left the hearing room.

Other Republicans including Sens. Mitt Romney (Utah) and Tim Scott (S.C.) also indicated they plan to approve Scalia’s nomination. Sen. Susan Collins (R-Maine), however, said she would wait until after the hearing and after reviewing his background to make a decision.

Like Collins, many Democrats were reluctant to say whether or not they would support Scalia’s confirmation. Democratic Sens. Chris Murphy (Conn.), Tina Smith (Minn.), Doug Jones (Ala.), and Jacky Rosen (Nev.) said they wanted to take more time to examine Scalia’s record before making a final decision publicly.

Sen. Patty Murray (D-Wash.), the committee’s ranking member, was less indecisive. She said after the hearing that she plans to oppose Scalia, adding she still believes members needed more time to thoroughly vet him.

Scalia’s boss in his prior stint in government service, George W. Bush administration Labor Secretary Elaine Chao, introduced her former chief legal officer. Chao cited Scalia’s “keen intellect respect for the rule of law,” and his “key role” in enforcing workers’ rights while serving as labor solicitor. Scalia resigned from the agency in January 2003 after losing out on a legal dispute related to the United Brotherhood of Carpenters.

Scalia was nominated for the job after former labor secretary Alexander Acosta resigned in July, following swirling criticism of his role as a prosecutor in the Jeffrey Epstein teen sex trafficking case.

Regulatory Uncertainty

Scalia is preparing to take over the Labor Department at a critical moment in Trump administration workplace policy. An active regulatory agenda is already underway, including a landmark rule to expand overtime pay access that cleared White House review and could be released within the next week.

Lawmakers from both sides of the aisle pressed Scalia on big-ticket ongoing DOL rulemakings that he would inherit if confirmed. But Scalia cited the regulations’ incomplete status in avoiding a commitment to take specific actions.

Sen. Lisa Murkowski (R-Alaska) raised concerns from building trades unions in her state that the department’s regulation to create a new model of “industry-recognized” apprenticeship programs would undermine the quality standards ensured by existing apprenticeships.

“I think those are important considerations that need careful attention as the Labor Department moves forward,” Scalia said. “If I’m fortunate enough to be confirmed, I know that is one of the very important things that will be on my plate.”

The agency is reviewing public comments to inform a final apprenticeship rule, one of the top items in the Trump White House employment agenda. The rule has sparked a fierce debate over whether construction industry apprenticeships should be included in a new, industry-led job training program.

The committee’s ranking member, Sen. Patty Murray (D-Wash.), raised her opposition to the DOL’s two signature wage rules—the regulation to lift the annual salary threshold under which workers qualify for overtime pay to about $35,000 and to narrow corporations’ joint liability with affiliated businesses for payroll violations. Democrats and worker advocates want the department to revive an Obama-era proposal that would have more significantly expanded overtime pay requirements.

Scalia declined to answer Murray’s query about whether he would commit to abandoning those projects.

LGBT Rights

A pair of the panel’s Democrats grilled Scalia on an article he wrote in 1985 as a college student in which he expressed uncertainty about his personal views on gay rights.

But the nominee said his views have evolved and that today he personally believes LGBT individuals are entitled to equal protection under the law.

“I do believe it’s wrong,” Scalia said when asked by Sen. Tim Kaine (D-Va.) whether companies should be able to fire workers based on their sexual orientation or gender identity. “I think most of my clients had policies against that; certainly my firm did,” said Scalia, a veteran partner at Gibson, Dunn & Crutcher in Washington.

The interchange on gay rights in the workplace occurred a few hours before two Trump civil rights officials were set to testify before the House Labor Committee. Democrats are expected to use that hearing to attack a recent DOL proposed rule to codify defenses religious organizations can use against discrimination allegations, including on the basis of sexual orientation.

Scalia said during the confirmation hearing that he would “take a careful look” at the rule to ensure “we get that balance right” between religious liberty and avoiding improper discrimination.

Jones, the Alabama Democrat, said Scalia’s response on these issues was appreciated, but he still is highly concerned Scalia would choose to take the administration’s position on LGBT rights in the workplace, which Jones said seems to allow discrimination that stems from religious beliefs.

Future of Work, Job Training Concerns

Some HELP members already have issues in mind they’d like Scalia to tackle, if confirmed.

Scott said he hopes Scalia will be more eager to address workplace issues related to the gig economy, as well as portable benefits and pensions for workers.

A Senate Appropriations subcommittee Sept. 18 released a government funding proposal for the DOL that included a budget report asking the agency to provide a report on its controversial wage enforcement program and to provide more resources to boost job training programs for workers effected by automation and artificial intelligence on the job.The DOL has yet to roll out a specific strategy to address automation-related job losses.

Rosen, Romney, and Murphy all indicated are they would like to see the department enhance apprenticeship opportunities, already a key element of the Trump administration’s agenda for training workers for the jobs of the future.

Scalia declined to go into specifics on future of work, job training and other specific policy issues during the hearing.

Timing Debate

The hearing came amid complaints from the committee’s top Democrat that GOP leadership is rushing Scalia through to confirmation without allowing adequate time to vet his long background.

“Workers and families across the country are counting on us to take our vetting responsibility seriously—especially since President Trump clearly won’t,” Murray said in her opening remarks.

Committee Chairman Sen. Lamar Alexander (R-Tenn.) opened the session by defending his decision to hold a prompt hearing.

“This committee considered President Obama’s Cabinet nominees promptly and with respect, and I trust that the committee will continue that with President Trump’s nominees,” Alexander said. “It was embarrassing then and it is now to ask well-qualified Americans to be nominated by the president of the United States for an important position and then say, ‘You are innocent until you are nominated’ or drag things out for a long period of time.’”

The chairman said he rejected a request from Murray to delay the hearing. After the hearing concluded, Alexander said based on what he saw, members had plenty of time to ask the questions they sought and appeared satisfied with Scalia’s response.

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

To contact the editors responsible for this story: Chris Opfer at copfer@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com