Secretary of Labor Nominee Scalia Defends Record at Congressional Hearing

 

Allen Smith, J.D. By Allen Smith, J.D. September 19, 2019
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​Eugene Scalia, President Donald Trump's nominee to be secretary of the Department of Labor, answered tough questions from Senate Democrats about his qualifications for the position at a Sept. 19 hearing before the Senate Committee on Health, Education, Labor and Pensions. He turned attacks on his record into a defense of having the experience needed to fill the role.

Sen. Patty Murray, D-Wash., said Scalia came across as a "secretary of corporate interest," accusing him of hostility in the past toward the workers he'd be charged with protecting and laws he'd be enforcing. As an employment law attorney representing corporations for the bulk of his 30 years of practice, he has sued to strike down the department's fiduciary rule, which requires financial advisors to put clients' interests above their own, she said. He has fought against protections of workers' health and safety, such as a federal repetitive stress injuries rule, dismissing concerns of workers as "junk science," she added.

Scalia noted that he had a duty to zealously represent his clients and said he was proud of the actions he took as solicitor of the Department of Labor (DOL) during President George W. Bush's administration. Those actions included an overhaul of the overtime rule in 2004, which simplified the methodology used to determine if someone was exempt from overtime requirements.

[SHRM members-only toolkit: Complying with U.S. Wage and Hour Laws and Wage Payment Laws]

Secretary of Transportation Elaine Chao, who was the labor secretary when Scalia was solicitor of labor, said Scalia "knows very well the issues at the department." He understands that the DOL "must be forward-looking, responsive and nimble," protecting workers and empowering them with the skills that are needed in an increasingly competitive workforce, she said. She added that he has volunteered his time to represent individuals fighting unfair dismissal.

Scalia said that while much of his work litigating on behalf of companies has been in the public eye, he has spent years behind closed doors recommending that clients confront workplace misconduct, including retaliation and harassment.

He noted that as solicitor he settled a "donning and doffing case"—involving compensating employees for the task of taking on and off cumbersome work gear—for $10 million, one of the largest settlements at the time in the history of the DOL's Wage and Hour Division.

Sen. Christopher S. Murphy, D-Conn., expressed concern, however, that Scalia was not in the political mainstream. Scalia's representation of private-sector employers "against workers" for decades troubled Murphy in particular. Murphy said Scalia would make "a fine secretary of commerce," but he wasn't sure Scalia was right to lead the DOL.

He asked Scalia about an article he wrote in 1985 trivializing the issue of gay rights. "Have your views changed?" Murphy asked.

Scalia emphasized that he wrote the article when he was a college student and added, "[I would] certainly change how I view any number of things since I was in college."

Sen. Tim Kaine, D-Va., asked Scalia whether he believed it was wrong for an employer to fire someone based on sexual orientation or gender identity.

Scalia answered that he did think that was wrong, and most of his clients had policies prohibiting termination on those grounds.

Sen. Jacky Rosen, D-Nev., asked if Scalia would commit to properly staffing the DOL's apprenticeship programs.

He responded that apprenticeships are "very important to our president," and he would consider this.

Workplace Safety

Sen. Robert P. Casey Jr., D-Pa., said he was "skeptical of the nomination" based on Scalia's record.

But Sen. Lamar Alexander, R-Tenn., said, "I don't like to see nominees criticized for effectively representing people who have different views than someone else."

Casey also asked Scalia about his commitment to mine safety.

Scalia said he shared a genuine interest with Casey in the Mine Safety and Health Administration and added that he was concerned that new mining techniques were increasing health risks to miners.

Kaine asked whether Scalia would grant mining companies permission to procure new mines when penalties had been assessed against them.

Scalia answered that he didn't know what the law required in such instances but would vigorously enforce applicable laws.

Sen. Tammy Baldwin, D-Wis., said, "[Scalia's] history and record on worker safety are of concern to me. They are not what I'd look for in our next secretary of labor." She noted a case in which he litigated against rules that would require employers to pay for protective equipment needed to stay on the job.

Violence is the third leading cause of workplace death, she added, and she asked if Scalia would speed up rulemaking on prevention of workplace violence against social and health care workers.

Scalia agreed that the Occupational Safety and Health Administration has a role to play when employers are notified of the possibility of workplace violence. But employers typically can't be held responsible when workplace violence is personally motivated, he added.

Immigration

Several Republican senators on the committee asked Scalia to help improve visa programs for foreign workers.

Sen. Susan Collins, R-Maine, asked whether Scalia would work to ensure there are enough H-2B visas for those employers who have no choice but to rely on a seasonal workforce to operate. She noted that Maine has 1.3 million people, but 36 million tourists each year. The H-2B visa program lets U.S. employers hire foreign nationals during peak seasons.

Scalia said he'd "ensure as best we can" that issuing H-2B visas is an important priority.

"H-2B issues are a key and critical issue in my state," observed Sen. Lisa Murkowski, R-Alaska. She said there was dramatic seasonality in hiring at fisheries and a permanent fix was needed.

H-2A visa issuance needed to be streamlined for ranchers and farmers, so long as American workers are protected, said Sen. Mitt Romney, R-Utah. The H-2A visa program is for temporary agricultural workers.

Scalia said that providing extra seasonal workers was a "central role of the department."

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