April 27, 2017

It didn’t happen exactly as President Donald Trump drew it up, but the U.S. Department of Labor finally has its new leader in law school dean and former U.S. Department of Justice Civil Rights Division head Alex Acosta. Here, attorneys discuss the most pressing challenges that will confront the new labor secretary when he takes over the DOL.

The Senate voted 60-38 to approve Acosta on Thursday, belatedly confirming a secretary of labor after Trump’s first pick for the job, ex-fast food CEO Andrew Puzder, withdrew amid controversy in February. The Florida International University College of Law dean and former National Labor Relations Board member joins an agency that attorneys say will be key to realizing the president's vision of a revitalized American economy. He'll have his work cut out for him.

Also pressing for Acosta is how to balance Trump’s immigration stance with the agency’s mandate to protect all American workers, documented or not. Cohen Milstein Sellers & Toll PLLC’s Michael Hancock told Law360 he has heard undocumented workers are declining to report violations for fear of being deported, which undermines the agency’s mission.

Simply reaffirming a memorandum of understanding with Immigrations and Customs Enforcement that it will not raid investigation sites would go far in assuaging undocumented workers’ fears, Hancock said.

“Having Acosta say very publicly that people shouldn’t fear cooperation with the DOL on employment and health and safety investigations — I think that would be a very meaningful step for him to take,” said Hancock, who served the DOL for 20 years across the Clinton, Bush and Obama administrations.

Acosta may also move to codify Trump’s promises of paid family leave, Hancock said.

Devising a Strategy

Businesses and the management bar frequently criticized the Obama DOL for its perceived punitive approach to enforcement. They hope now that Acosta will focus less on punishing violations and more on guiding employers through the web of federal worker protections.

As a plaintiffs attorney and one of the architects of the Obama DOL’s enforcement strategy, Hancock said he’s hopeful Acosta won't totally reverse course. Contrary to the management side’s perception, the Tom Perez DOL carefully selected which industries it targeted, and which employers to investigate, Hancock said.

Abandoning this strategy could limit the agency’s effectiveness at recovering for workers, according to Hancock. “It’s not just ideologically driven, but driven by objective measures. It’s effective, efficient, cost-effective. You protect a lot more workers with the same dollars,” he said.

Navigating the Budget

Those strategy questions will be all the more pressing should next year’s federal budget at all resemble the budget Trump floated last month. The president proposed a 21 percent cut to the DOL’s budget in 2018, which could deal a hefty blow to an agency that already strains to stretch every dollar.

However, there’s often a big differential between budget proposal and approval. And where bloated budget requests may be slashed, lawmakers may opt to blunt the worst cuts in Trump’s proposal. Now that Acosta is confirmed, the DOL has an advocate.

“I would hope, now that he’s secretary of labor … there will be a voice at the table,” Hancock said. “He can make the perfectly rational argument for why there shouldn’t be that kind of draconian cut. We were always short on resources and had to make the most with what we had, and any sort of cut is going to impede the department and the enforcement agencies.”

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