In a relatively surprising development last week, President Trump’s nominee to lead the Department of Labor (DOL), Andy Puzder, withdrew himself from consideration. The President moved swiftly to nominate Alexander Acosta to fill the position. Mr. Acosta is the dean of Florida International Law School, and has served on the National Labor Relations Board (NLRB) and as assistant attorney general for the Justice Department’s Civil Rights Division.
Unlike Mr. Puzder, whom many deemed to have a pro-business ideology, Mr. Acosta is widely seen as having a more centrist viewpoint. During his time on the NLRB he ruled in favor of both employers and workers. For example, he ruled that Kroger violated the National Labor Relations Act by prohibiting its employees from discussing union issues during working hours. However, he also ruled that Bell Atlantic could prohibit employees from wearing union T-shirts that depicted workers as road kill being run over by a truck bearing the company’s logo.
Assuming Mr. Acosta is confirmed by the Senate, which looks likely, the big issue he will have to confront is whether the DOL should repeal the rule passed at the end of the Obama Administration increasing the number of workers eligible for overtime pay under the Fair Labor Standards Act. The Obama Administration rule increased the salary at which employees would be exempt from receiving overtime pay from $455 per week to $913 per week. In late November of last year, right before the rule was set to go into effect; a federal judge temporarily blocked it. An appeals court is currently deciding whether the rule is constitutional and therefore should be allowed to go into effect.
There is no indication yet what the DOL will do in regards to the rule. On the one hand, President Trump has vowed to repeal regulations, particularly those that harm businesses. On the other hand, he has also vowed to help the working class, which many argue could benefit from the DOL’s rule.
Based on Mr. Acosta’s record, I would expect a relatively quiet DOL during the Trump Administration. It also seems unlikely, based on Mr. Acosta’s seemingly centrist approach, that there will be a significant easing of federal employment laws on employers. There does not seem to be anything in his record or in President Trump’s statements that suggests the DOL will seek to rollback OSHA regulations or existing regulations implementing other federal statutes.
As always, we will continue to report on developments in the Trump White House and how they affect employers, so stay tuned to the blog.