We’ve previously discussed Acosta’s bona fides, which include positions as a member of the National Labor Relations Board (NLRB), chief of the civil rights division at the Department of Justice, as well as the U.S. Attorney for the Southern District of Florida. Although some Senators pressed Acosta during the hearing about a few specific situations he encountered while in these roles, most of the questioning focused on his views of current labor and employment issues. Of course, most of these issues are critically important to employers and include matters such as the overtime regulation, the Occupational Safety and Health Administration’s (OSHA) silica rule, OFCCP’s over reliance on statistical analyses, visa work programs, and job training. Three issues of particular importance to employers jumped out:
Towards the end of the hearing, Senator Alexander (R-TN) questioned Acosta about whether a direct or indirect control standard should be used to determine whether a particular company is an employer of certain workers. This question was clearly referencing the NLRB’s 2015 decision in BFI which upended decades of precedent in establishing an indirect or reserved control standard. Significantly, through various sub-regulatory initiatives, the previous administration’s DOL made clear that it would scrutinize potential joint employer relationships and single them out for enforcement. It is, therefore, an important question for a Labor Secretary nominee. Acosta responded by favoring the direct control standard, calling the indirect control standard the “nontraditional approach.”
3. Opinion Letters
It was clear that Acosta is committed to returning to the process of issuing Opinion Letters—a long-standing practice that the previous administration scrapped in favor of sweeping Administrator’s Interpretations. Opinion Letters offer a way for employers to anonymously—and in good faith—seek assistance from the DOL’s Wage and Hour Division when confronted with difficult questions as to the application of federal wage and hour law. This is good news, as the Opinion Letter process offers employers a more proactive and cooperative relationship with the DOL, in contrast to what many considered to be an over-emphasis on enforcement in the previous administration.
What Happens Next?
The timing for Acosta’s consideration in the HELP Committee and eventual vote on the Senate floor is unknown at this time. Even if Acosta is confirmed, and he only needs a simple majority of votes in the Senate, individuals will need to be nominated and confirmed to lead the various DOL offices, such as the Wage and Hour Division and OSHA. This likely means a period of continued legal uncertainty for employers.
Jim Plunkett is a Senior Government Relations Counsel in the Washington, D.C. office of Ogletree Deakins. Jim was previously the Director for Labor Law Policy at the U.S. Chamber of Commerce where he focused on legislation, regulations, and policy decisions that impact the workplace. This included activity concerning the National Labor Relations Board, the Department of Labor, the Equal Employment Opportunity Commission, as well as international labor issues. Prior to joining the Chamber, Jim...