HR Management & Compliance

Trump taps former NLRB member to head DOL after Puzder withdraws

UPDATE: President Trump has nominated Alexander Acosta, a former National Labor Relations Board member, to serve as Secretary of Labor. The announcement came less than 24 hours after Trump’s first choice withdrew from the approval process.

Acosta is currently dean of the Florida International University College of Law. He was nominated to the board by President George W. Bush and later served as assistant attorney general for the U.S. Department of Justice’s Civil Rights Division.

Acosta has a deep understanding of labor and employment issues, according to Leslie E. Silverman, a shareholder at Fortney & Scott, LLC. Alex has distinguished himself in a variety of leadership positions and he should be able to hit the ground running if confirmed, she said.

If confirmed, Acosta would be Trump’s first Hispanic cabinet member.

President Donald Trump’s nominee for secretary of labor, Andrew Puzder, withdrew from the approval process Wednesday, just hours before his scheduled confirmation hearing. While experts say a change in nominees probably won’t affect employment policy—after all, Trump will likely appoint another conservative—it means the U.S. Department of Labor (DOL) will remain leaderless for a while longer.

Puzder’s fall

Puzder was plagued by personal scandals, and it became clear that he didn’t have the votes needed for Senate confirmation. GOP leaders called for him to back out, CNN reported Wednesday morning. The nominee announced his withdrawal Wednesday afternoon, and the Senate Committee on Health, Education, Labor & Pensions promptly canceled his hearing scheduled for Thursday morning.

Democrats were predictably opposed to Puzder because of his policy positions, but he ran into trouble with Republicans when the scandals came to light, according to Charles H. Kaplan, a member of Sills Cummis & Gross and an editor of New York Employment Law Letter.

Puzder employed an undocumented immigrant as a housekeeper and had faced domestic abuse allegations (albeit recanted) from his ex-wife. Because of those scandals and other issues, Puzder’s hearing may well have been a circus, Kaplan said. Maybe he didn’t have enough Republican votes. “Rather than face that hearing, Puzder withdrew his nomination,” Kaplan said.

The committee’s ranking member, Senator Patty Murray (D-WA), led a campaign against Puzder from the beginning. In a statement on his withdrawal, she said, “Workers and families across the country spoke up loud and clear that they want a true champion for all workers in the Labor Department.”

Trump has not announced a replacement, but Kaplan suspects the president will at least consider some of the names from his original list of candidates. Representative Lou Barletta (R-PA) told reporters that he was considered for the job in November but chose to withdraw from consideration. Victoria A. Lipnic was also rumored to be in the running, but she has since been named acting chair of the Equal Employment Opportunity Commission (EEOC).

Wisconsin Governor Scott Walker was said to be on the short list, but on Wednesday evening, he announced that he had no plans to leave his position. Peter Kirsanow, a former National Labor Relations Board (NLRB) member and current member of the U.S. Commission on Civil Rights, was previously considered and could still be in the running, according to various news reports.

Employer takeaway

Regardless of whom Trump selects as a replacement, employers probably can expect the person to have policy positions that are similar to Puzder’s, Kaplan said.

For example, Puzder’s nomination was considered the death knell for the DOL’s new overtime rules, which are currently on hold as a result of a court’s temporary injunction. Puzder is an outspoken critic of the rules, and under his leadership, the DOL likely would have abandoned its defense of the rules, experts predicted.

Generally speaking, replacing Puzder probably doesn’t change anything, Kaplan said. “I don’t think, as a policy matter, there’s going to be too much of a difference,” he said. Regardless of who is in charge, Trump’s DOL will be much more conservative with its regulations and enforcement actions than former President Barack Obama’s DOL, Kaplan explained. “I think there’s a general feeling by both the president . . . and his team that there was a lot of overregulation during the eight years of the Obama administration,” he said. “I would expect a very different Department of Labor over the next four years.”

For now, the DOL’s initiatives remain in limbo. Without leaders in place, stakeholders who have business with the department are feeling the pain, said  Silverman. “It’s a challenge,” she said. “No one’s in charge.”