In the wake of Alexander Acosta’s resignation as Labor Secretary, President Trump has moved quickly to name a replacement – and one whose last name is familiar to us all. Yet aside from Eugene Scalia’s famous father, the late U.S. Supreme Court Justice Antonin Scalia, what do we know about the presumed next Cabinet-level head of the U.S. Department of Labor?
To get a sense of what can be expected, I surveyed several of my labor and employment law colleagues. The consensus: Scalia will aggressively battle against intrusive and overreaching regulations that hamstring the country’s employers, and will quickly endear himself to the business community in Georgia and elsewhere.
While Scalia has only briefly served in the federal government and instead spent the majority of his professional life in private law practice, his credentials are impeccable. He has a law degree from the University of Chicago and received his MBA from the Wharton School at the University of Pennsylvania. He has worked for a large and well-respected law firm and had three brief stints in federal government service, including solicitor of the Department of Labor for 12 months starting in 2002, where he served as the chief legal officer for the department he is now about to lead.
In terms of significant workplace issues Scalia is likely to encounter, the one on most employers’ minds right now is pay equity. Specifically, the status of the revised EEO-1 reports and whether companies will need to produce a mountain of pay data and hours-worked information by the current September 30, 2019 deadline.
Scalia has demonstrated himself to be somewhat of a warrior against overreaching regulations that overburden the business community, and many companies complain there has never been a more burdensome and overreaching regulation than the beefed-up EEO-1 reports. If Scalia could somehow navigate a stay of this requirement, the business community will have cause for celebration.
Among other issues Scalia will have the opportunity to influence:
- Workplace Safety: With respect to OSHA and workplace safety and health issues, you can expect the agency to focus more on compliance assistance to balance against enforcement activities under Scalia's leadership. Scalia is well aware of the regulatory process and will be able to move whatever pending standards he wants to move. It's also likely that the career government officials installed at the Labor Department will be less likely to oppose Scalia's initiatives given they will trust he will know how to get things done. Scalia already has direct experience waging battles against intrusive safety regulations: In 2000, he fought against the proposed ergonomic standard the Clinton administration wanted to put in place. The rule was quickly scrapped by Congress, but the battle cemented Scalia as a strong advocate for the business community.
- Family And Medical Leave: As a management-side employment lawyer who has spent a career representing businesses and associations seeking to strike down or limit regulations considered to be overreaching, Scalia might drive the agency to propose new Family and Medical Leave Act (FMLA) regulations that might reduce the administrative burdens on employers while still protecting employees' rights to take leave. Scalia's experience in defending FMLA claims and related leave laws place him ahead of the curve understanding the administrative burdens imposed by the FMLA regulations.
- Immigration: While most employers are aware of the involvement of the federal government in workplace immigration matters, not all are aware of the fact that the Labor Department plays a role in enforcing federal immigration policy. There could be a slight change in focus under Scalia's leadership. While we expect worksite enforcement actions, including audits of employers' H-1B, H-2B, and H-2A programs, to continue at their current heightened levels, we also expect more efficient resolutions of audits under Scalia.
- Labor unions: As a management-side labor lawyer and advocate for employers, Scalia is likely to position the Labor Department to strike a balance and even the playing field to give employers the benefit of the doubt. Scalia could do this via the Office of Labor-Management Standards, an office in the Labor Department charged with the mundane-sounding task of managing the receipt of funds by labor unions. However, it has the power to investigate union payments to ensure they are legitimate. And while this office has generally steered clear of controversy and made little impact on the business community in recent years, things could be different under Scalia.
Although to this point he is the lesser-known Scalia, Eugene Scalia will, with the Senate’s confirmation, soon find himself in the Cabinet and in the spotlight, where all indicators point to him being a benefit to Georgia employers.
Edwin Foulke, Jr. is former head of OSHA during the George W. Bush administration and a partner in the Atlanta office of labor and employment law firm Fisher Phillips.
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