Acosta is Out, Scalia is Nominated – Will the DOL Actually Get Something Done This Year?

July was an eventful month at the Department of Labor. Other than the departure of DOL Secretary Alex Acosta on July 9 and the nomination of Eugene Scalia one week later, there have been several other DOL personnel changes this month that are worth noting. According to a DOL press release on July 22, Tim Taylor was named Chief of Staff, Catherine A. Bartley named Deputy Chief of Staff, and Joseph N. Mazzara was named Acting Executive Secretary in the Office of the Executive Secretariat.

While we wait to see how (and when) the confirmation process for Scalia will unfold, there is lots of speculation about how his leadership could shape DOL policies when he is confirmed. Here are a few things we know:

He’s pro-business. Scalia is a partner at the law firm Gibson, Dunn & Crutcher, a firm with 20 offices around the world and over 1,300 attorneys on staff. At Gibson Dunn, he is co-chair of the firm’s Administrative Law and Regulatory Practice Group, and a member of the firm’s Labor and Employment Practice Group. Scalia joined the firm in 1990.

In a 2012 Wall Street Journal article he said that his legal positions are separate from politics and are part of the “system of checks and balances that are at the heart of democratic government.” 

He’s qualified. Scalia served in the G.W. Bush Administration as Solicitor of Labor and is very familiar Labor Department rules and laws. He’s also handled some very high-profile cases at Gibson Dunn over the years. Most notable, perhaps, was his successful defense of SeaWorld in 2010 after an orca whale named Tilikun killed Dawn Brancheau, a SeaWorld trainer, during a live show. OSHA issued a General Duty Clause citation and levied a fine of $75,000, claiming that the trainer’s death could have been prevented if SeaWorld had not exposed its employees to potentially dangerous marine mammals —Tilikun in particular. Tilikun had killed before.

The SeaWorld case is very instructive in understanding Scalia’s legal perspective and approach, and his oral argument in the SeaWorld case is worth a listen. His central point, which was picked up by the media and widely publicized, was that SeaWorld had no more responsibility to defend trainers than the NFL had a responsibility to prevent injuries on the field. Interestingly, Supreme Court Justice Brett Kavanaugh, who was then a federal judge, was presiding and sided with SeaWorld.

More recently, Scalia represented the US Chamber of Commerce in fighting the DOL’s retirement-advice rule, which required that brokers act in the best interest of clients saving for retirement, a stricter standard than had previously been in place. That rule was struck down in federal court in March 2018. The DOL has been working on a new retirement-advice rule ever since. If confirmed, Scalia could be in charge of implementing a new version of a policy he has successfully fought in court. That will be interesting to watch.

The department is also working to complete rules governing overtime pay for white-collar workers and instances in which a worker has two employers. The “joint employer” rule has an impact on employers that operate through franchisees and firms that hire contractors.

He’s a nice guy. Mother Jones reported that much like his father, the late Supreme Court Justice Antonin Scalia, Eugene has a reputation for being “congenial with colleagues on the other side of the partisan divide.”

Scalia’s background will certainly allow him to hit the ground running, and that just might allow the department to finish rules this year before the presidential campaigns heat up. We’ll keep you posted.

Feel free to contact me if you have any questions about any compliance or regulatory issue. I can help you proactively prepare for the changes we know are on the horizon, and respond to them with clarity and confidence.

About the Author: James Laboe

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