DOL Can Keep Su as Acting Secretary

​The U.S. Government Accountability Office (GAO) on Sept. 21 concluded that Julie Su can continue serving as the acting secretary of the U.S. Department of Labor (DOL). The DOL can continue legally issuing regulations and enforcing labor laws under Su's leadership.

Keeping the Status Quo

The GAO's findings are a win for the Biden administration and give the agency the green light to keep Su as leader of the DOL at least until the end of Biden's first term, despite not having the votes in the Senate to confirm her following the exit of the previous labor secretary, Marty Walsh.

Republicans and business groups have said that any actions Su may take as acting leader could be subject to a legal challenge. Su was confirmed as deputy secretary in July 2021.

(Bloomberg Law)

Opposition from Critics

Su has been a major target of business groups and Republicans in Congress since she was elevated to the DOL's top job, following Walsh's resignation in March. Her critics have raised questions about the legality of policy decisions authorized without a Senate-confirmed leader.

They argue that absent confirmation, which Senate Democrats do not have the votes for, the White House is circumventing time limits on interim leadership imposed by the Federal Vacancies Reform Act. The Biden administration has pointed to a separate statute that allows the deputy labor secretary to fill in until a successor is appointed.

The GAO's findings will likely be used by the DOL to defend against potential legal challenges to major regulatory actions taken under Su, such as its recently proposed expansion of overtime eligibility or forthcoming changes to the standards on independent contractor classification.

(Politico)

Vacancies Reform Act Doesn’t Apply

Rep. Virginia Foxx, R-N.C., who is chair of the House Education and the Workforce Committee, in July submitted a request to GAO to examine whether Su serving in an acting capacity is subject to time limits under the Federal Vacancies Reform Act. 

The Federal Vacancies Reform Act establishes requirements for temporarily filling vacant positions in the executive branch that require presidential appointment and Senate confirmation. The law identifies who may temporarily serve, for how long, and what happens when no one is serving under the law and the position is vacant. The GAO serves as the arbiter for the statute, issuing decisions when there are violations of the law's time limitations and rulings on agency compliance with the law when requested by Congress.

To pre-empt the issue, the DOL last March contended in a letter to the GAO that Su is serving as acting secretary of labor not under the Federal Vacancies Reform Act, but under a DOL-specific succession statute (29 U.S.C. Section 552), allowing the deputy secretary to perform the duties of the secretary of labor. The GAO agreed with the Biden administration's argument.

(National Association of Plan Advisors)

Lawmakers Disagree on Su’s Leadership

At a contentious hearing on June 7, members of the U.S. House Committee on Education and the Workforce were split along partisan lines, with Republicans criticizing Su's record and Democrats praising her leadership.

Su defended her record on combating child labor violations and emphasized the DOL's recent efforts to expand registered apprenticeships and training programs for workers to meet employers' needs for certain skills, especially in the construction, manufacturing and cybersecurity industries.

Foxx lamented what she deemed Su's favoritism toward unions. Rep. Lisa McClain, R-Mich., said Su has shown a disdain for businesses.

At a confirmation hearing on April 20, Democratic senators praised Su's qualifications and willingness to protect workers. Republican senators criticized her, saying she's biased against employers, especially on the issue of classifying gig workers as employees, rather than independent contractors.

(SHRM Online and SHRM Online)