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Trump Opposition to Transition Slows Biden’s Labor Planning (1)

Nov. 13, 2020, 2:15 PMUpdated: Nov. 13, 2020, 7:34 PM

Joe Biden’s labor transition team is trying to overcome President Donald Trump’s resistance to conceding the election but lacks the agency access former transition officials say is needed to meet the pandemic’s call for urgent workplace protections.

The General Services Administration has yet to sign paperwork necessary to initiate a formal government transition while Trump tries to overturn the president-elect’s win by disputing ballot counts and claiming unsubstantiated voter fraud. The stalemate prevents Biden’s agency review team from taking a detailed audit of the U.S. Labor Department’s ongoing work to tee up a more proactive agenda next year.

“Under the best of circumstances, transition is drinking from a firehose,” said Edward Montgomery, who ran the Obama administration’s 2008 DOL transition. “Every week that you lose makes that path harder and harder and every week that you lose makes the ability of the new administration to hit the ground running more of a challenge.”

Worker advocates and Obama DOL alums who were named to the DOL review team have advocated for stronger occupational safety enforcement to protect workers from Covid-19. The DOL team members also have urged the extension and expansion of expiring unemployment benefits and paid-leave days for workers sidelined by the coronavirus.

Biden’s DOL team includes high-level Obama labor veterans with the experience to make progress without assistance from the outgoing administration. But their inability to enter the building, speak with civil servants and political personnel, and gain a full grasp of developing policy initiatives and enforcement actions will set them back at a time when they’re under immense pressure, according to former transition officials.

A Biden transition official told Bloomberg Law that the Trump administration’s blockade is “certainly a challenge, but the transition’s work is continuing full-steam ahead.”

The official, speaking on condition of anonymity, said the review team is starting to meet with former agency officials and outside experts from think tanks and trade associations who follow the agency’s work.

DOL Warning

But Biden’s DOL review staffers won’t get briefed on budget plans, region-specific challenges, pending litigation decisions, interpretive guidance drafts, and other information that would typically ease the Jan. 20 hand-off unless they’re allowed access, said Montgomery, a former deputy labor secretary who’s now president of Western Michigan University.

“These obstacles that the Trump administration are putting up are not ideal, and hopefully cooler heads prevail in a couple of days and the GSA administrator makes the determination so we can continue with the work,” Chris Lu said in an interview on MSNBC Wednesday. Lu was Obama’s deputy labor secretary and now heads the Biden DOL review team.

A senior DOL official sent a warning to career managers Tuesday evening saying that even though agency review teams were announced earlier that day on the “Biden Campaign website,” the transition hadn’t begun.

“Please remember what we’ve discussed this morning: we are currently in a holding pattern, and as such, should not be reaching out or having conversations with anyone regarding transition,” Al Stewart, DOL’s deputy assistant secretary for operations, wrote in an email obtained by Bloomberg Law. “We’ll let you know as soon as we hear something from GSA.”

A DOL spokeswoman declined to comment, saying all questions about the transition must be addressed by GSA. Media representatives for that agency didn’t respond to a request for comment.

Cheryl Stanton, DOL’s Wage and Hour Division administrator, didn’t acknowledge a Biden win when asked at a Federalist Society panel Wednesday to project how a President Biden would affect her agency.

‘Take the Temperature’

Although many of the Trump administration’s workplace executive orders, regulations, enforcement policies, and other initiatives have been publicized, the Biden labor team can’t access other critical information until GSA gives the go-ahead.

“It’s helpful if you can take the temperature of the building because when you walk in and you’re with the transition team, the word gets around. People will talk to you about some things that are going on that are maybe disturbing,” said William Spriggs, chief economist to the AFL-CIO, who served on the DOL review team in 1992 for Bill Clinton and in 2008 for Obama.

Spriggs cited Labor Secretary Eugene Scalia’s decision to force the transfer of a regional solicitor and the Occupational Safety and Health Administration’s prioritization of voluntary guidance about Covid-19, rather than mandatory enforcement, as examples that would warrant Biden’s team communicating with the agency’s civil servants “to get a real sense of what’s going on.”

“That’s important because when you have authority, there are some things you can address right away,” Spriggs added.

Spriggs, an economics professor at Howard University, said transition meetings with business groups can help them get a read on what’s coming next. “I’m surprised the business community doesn’t scream” that a traditional transition hasn’t started, he added.

“Certainly, the president’s doing what he thinks is right in making sure the votes are counted accurately,” said Glenn Spencer, who heads the U.S. Chamber of Commerce’s employment policy division. “But we do hope that this is resolved quickly and we can get some certainty around the next administration.”

Sen. James Lankford (R-Okla.), who’s been pushing GSA to initiate the transition, said in a radio interview Friday that he “doesn’t anticipate” GSA will make a decision by the end of the day.

Tracking From Outside

Biden’s transition challenges seem less daunting when compared with the “chaotic” transition process four years ago as Trump assembled his administration of relative newcomers, a Trump labor transition official said.

“I would expect it to be a more high-functioning transition, even given these interesting times, but that’s a pretty low bar because I can say with pretty great confidence that the Trump transition was the least organized of modern times,” said the former Trump official, who was granted anonymity to discuss internal deliberations.

Biden’s labor group also shouldn’t worry because transition timing always varies, such as in 2000 when the George W. Bush team didn’t access agency buildings until mid-December, when the U.S. Supreme Court settled the Florida recount dispute, said Emily Spieler, a member of Obama’s 2008 DOL review group.

Another reason for Biden confidence: The worker rights organization National Employment Law Project, which has an employee and a consultant on the Biden DOL team, has “done the transition team a tremendous favor” by cataloging every step of Trump’s labor and employment agenda on a website, www.puttingworkersfirst.org, said Judy Conti, NELP’s government affairs director.

“Every act—it’s right there for the transition team’s taking,” she said.

—With assistance from Ian Kullgren.

(Updated with Sen. Lankford's comment on GSA status.)

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; Andrew Harris at aharris@bloomberglaw.com