Stymied Su Nomination Mirrors Slack Labor Department Rulemaking

The US Labor Department’s regulatory agenda has slowed to a standstill while the White House works to whip up enough support for Labor secretary nominee Julie Su.

Since Su started serving as acting secretary March 11 when Marty Walsh departed as DOL chief, the agency hasn’t finalized or proposed any new regulations—despite plans to wrap up a rule on independent contractor status, issue a proposal to update overtime pay protections, and several rules close to being released at the White House budget office.

“By freezing your regulatory agenda, you are in essence avoiding the embarrassment or the explanation of something you might do that is controversial and could have a negative impact on your nomination,” said Patrick Pizzella, a former deputy secretary of labor who led the agency as acting secretary during the Trump administration as it transitioned between former DOL heads Alexander Acosta and Eugene Scalia.

It’s also the first time since W. Willard Wirtz served as labor secretary in the 1960s that a deputy secretary was nominated to replace the leader of the agency, putting Su in the delicate position of having to work in the job she wants while going through the application process.

Nothing is preventing Su from signing off on a final regulation while serving as acting secretary, according to Pizzella and others.

“There’s absolutely no legal prohibition against advancing regulations as an acting secretary,” said Judy Conti, government affairs director for the National Employment Law Project. “The department of labor is open for business as usual as far as I know and there could be any number of reasons why the regulations are delayed.”

“There’s nothing that requires them to stop anything,” Pizzella added. “Life goes on; there is a regulatory agenda.”

The DOL said it’s continued its work while the Senate vets Su.

“The Department of Labor is committed to pursuing the regulatory agenda that we have staked out in the past two years to advance the President’s agenda and the Department’s mission,” a DOL spokesperson said by email. “Rulemaking takes time, but using notice-and-comment procedures when appropriate ensures that we’ve heard from all stakeholders.”

Secretary of Labor Marty Walsh, right, and Deputy Secretary Julie Su speak with Resilience Force workers in a parking lot on Feb. 7, 2022 in LaPlace, La.

Photo by Josh Brasted/Getty Images for Resilience Force

Sluggish Timing

It’s not unusual for an administration to take several months to propose and finalize a regulation. The Administrative Procedure Act requires federal agencies to take time to seek public input and to analyze the potential impacts and costs of a change in rules.

Some of the delay in the DOL’s regulatory agenda may be due to holdups at the White House’s Office of Management and Budget, which acts as a gatekeeper for agency regulations. The office has the last say over agency rule changes before they are released for public comment or finalized.

The seven major rules advanced by the DOL last year—such as a final rule to rescind the Trump administration’s industry-run apprenticeship model and a proposal to determine independent contractor status under federal wage law—took an average of nine weeks to get the OMB green light.

Budget office review has taken much longer following Walsh’s exit. The seven DOL rules sitting at OMB have been pending for an average of 16 weeks.

The one Labor Department rule that OMB approved this year, which implemented part of the 2019 SECURE Act, took 10 weeks to review.

An OMB official didn’t immediately respond to a request for comment.

Hill Push and Pull

Su’s defenders in the Senate are getting impatient over the delay in the vote on her nomination, and are blaming Republicans.

“I think it’s reprehensible that Republicans are slowing it down or worse here,” said Sen. Sherrod Brown (D-Ohio.), adding that the party’s senators “dutifully follow” anything corporate America says.

Sen. John Hickenlooper (D-Colo.), said it can be difficult for an agency to make a case for its regulatory movements without a confirmed leader. Any place functions best when it counts with “established” leadership who can make decisions and ensure things are getting done, he added.

As acting administrator, “I think she’s done a lot of that stuff anyway,” Hickenlooper said. “But I think the enterprise would benefit by having her established.”

No One Home

Beyond the uncertainty on the Su nomination, other top positions at the DOL lack Senate-confirmed leaders. Majority Leader Chuck Schumer (D-N.Y.) has dedicated most Senate floor time for judicial nominees as the picks for the DOL have stalled in the chamber for several months.

Jessica Looman, Biden’s pick to head the Wage and Hour Division, has been waiting for a full Senate vote since July 2022.

Biden’s nominee to lead the Employment and Training Administration has been lingering in the Senate for even longer than Looman. President Joe Biden picked José Javier Rodríguez to lead the DOL’s largest subagency in July 2021. But the HELP Committee deadlocked on Rodriguez’s nomination later that year when the Senate was equally divided, putting his nomination on hold.

Biden renominated the former Florida state senator to the role this year, and he is waiting for a full chamber vote after the HELP panel—now with an extra Democrat—advanced his nomination in March.

The 51-vote Democratic majority in the Senate means Democrats have better chances of advancing Biden nominees—including Julie Su. But the GOP needs only two defections among senators who caucus with Democrats to tank nominations on the floor if all senators are present.