Trump Picks Eugene Scalia to Fill Secretary of Labor Role

 

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​President Donald Trump announced July 18 that he intends to nominate Eugene Scalia, son of the late U.S. Supreme Court justice Antonin Scalia, to be the next secretary of labor.

If confirmed by the Senate, Scalia would replace Alexander Acosta, who resigned under pressure due to his role in securing a plea deal for convicted sex offender and newly indicted Jeffrey Epstein.

Scalia is an attorney with Gibson, Dunn & Crutcher in Washington, D.C., and is a member in the firm's labor and employment practice group, as well as the administrative law and regulatory group.

"We encourage the next labor secretary to continue the important practice of soliciting business and employer perspectives and those of other stakeholders on policy affecting the workplace," said Johnny C. Taylor, Jr., SHRM-SCP, president and chief executive officer of the Society for Human Resource Management (SHRM). 

SHRM will continue to work with the Department of Labor (DOL) and the next labor secretary on important issues, such as the federal overtime rule, regulations under the Fair Labor Standards Act (FLSA) and the hiring of people often excluded from the job market, he said. 

We've rounded up the latest news on this topic. Here are SHRM Online resources and news articles from other trusted media outlets.

Experience in Labor Field

Trump made his intensions known on Twitter Thursday night. "I am pleased to announce that it is my intention to nominate Gene Scalia as the new Secretary of Labor. Gene has led a life of great success in the legal and labor field and is highly respected not only as a lawyer, but as a lawyer with great experience working with labor and everyone else," he tweeted. Scalia was the solicitor of the DOL under former President George Bush and a special assistant to former Attorney General Bill Barr in the Department of Justice in 1992.

(CNN)

Prior Nomination Opposed by Democrats

Although Bush nominated Scalia in 2001 for the DOL solicitor role, he was never confirmed by the Democrat-controlled Senate. Scalia faced scrutiny for opposing an ergonomic regulation from former President Bill Clinton's administration that would have protected workers from repetitive stress injuries. Scalia said the regulation was based on "unreliable science." Bush ultimately used a recess appointment to bypass the Senate and place Scalia in the solicitor role.

(The New York Times)

Writings on Sexual-Harassment Law Scrutinize 

Democrats have criticized Scalia's 1998 essay asserting that "quid pro quo" or "this for that" workplace sexual harassment "should be eliminated as a functional category of discrimination" under the law. This type of harassment involves demands for sexual favors in exchange for an employment benefit, such as a promotion. Scalia didn't endorse this type of harassment, but he argued that quid pro quo harassment shouldn't be in a different category than general workplace harassment.

"His point was only that employers should be liable, and you don't need a new doctrine to make it liable," said Bill Kilberg, an attorney with Gibson Dunn in Washington, D.C. Some worker-advocacy groups, however, said Scalia's writings should disqualify him from serving as the next secretary of labor.

(Politico)

Business-Friendly Track Record

Scalia is a management-side attorney and has represented large businesses, such as Walmart. In 2006, he represented the retail giant in a case challenging a Maryland law that would have required the business to spend more money on employee health care benefits. Scalia has also represented the U.S. Chamber of Commerce, helping convince a federal judge to vacate the fiduciary rule, which was finalized during President Barack Obama's administration and required brokers who give retirement investment advice to consider only the best interests of the client.

(Politico)

Proposed Overtime Rule

Employers may wonder what the DOL leadership changes mean for key workplace rules that have yet to be finalized, such as the federal overtime rule, which would raise the FLSA's exempt salary threshold to $35,308. For now, Labor Deputy Secretary Patrick Pizzella has been appointed acting labor secretary.

Pizzella is committed to ensuring the rule is finalized by year's end, said Michael Lotito, an attorney with Littler in San Francisco, "knowing that once 2020 begins, all focus turns to the election and any new rules take on heightened politization." 

(SHRM Online)

Labor Department Goals

In addition to the overtime rule, the DOL is working on other critical wage and hour updates, such as the proposed joint-employer rule, which would narrow the FLSA's definition of "joint employer," and a change to the definition of the "regular rate" of pay that is used to calculate overtime premiums. The department also plans to seek comments on how to improve the Family and Medical Leave Act  to better protect workers and reduce administrative burdens on employers. 

(SHRM Online)

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