Seyfarth Synopsis: Last Thursday, the Senate confirmed Alexander Acosta as the 27th United States Secretary of Labor. Filling the final post in President Trump’s cabinet, Acosta will lead a Department of Labor that has, since inauguration, operated without political leadership in the Secretary role. With Secretary Acosta in place, the DOL now has a leader to advance the new administration’s agenda. Here, we offer a brief introduction to Secretary Acosta, as well an overview of the action and opportunity employers may expect on the wage and hour front over the next few months.
Who is Alexander Acosta?
Secretary Acosta is a Florida native and son of Cuban immigrants. After graduating from Harvard Law School in 1994, he clerked for now-Justice Samuel Alito, then a federal appellate judge for the Third Circuit. After spending several years in private practice, he turned to public service, first as a member of the NLRB, next as the civil rights chief at the Department of Justice, and then as the U.S. Attorney for the Southern District of Florida. Since 2009, he has served as Dean of the Florida International University College of Law.
Secretary Acosta is known to be intelligent, thoughtful, and experienced in political matters. Through years of public service, he has demonstrated an interest in protecting the rights of non-majority individuals. Compared to some of President Trump’s other cabinet nominations, he drew only light opposition during the confirmation process, with comparatively bi-partisan support and a confirmation vote of 60 to 38.
Expectations in the Wage and Hour World.
We expect Secretary Acosta to move quickly on several fronts. First, the Secretary will begin filling pivotal DOL roles that have remained vacant since President Trump took office—among them, the Wage and Hour Division’s Administrator and the Solicitor of Labor (which has been filled on an acting basis).
Second, Secretary Acosta will likely turn his attention to critical DOL initiatives that have been in limbo since the election, including the new overtime exemption rules that were temporarily enjoined by a federal district court in Texas just before their December 1, 2016 effective date. Even as they have languished before the Fifth Circuit following the Obama administration’s appeal of the injunction order, the rules have been a major source of consternation for employers. Secretary Acosta can now take careful steps to determine an exit from the litigation that has stuck the new rules in procedural purgatory, while at the same time assessing future changes to the exemption rules.
Third, once a new Administrator is in place, we expect a clearer message around the Wage and Hour Division’s enforcement and education policies, which have remained fairly static since the end of 2016. We would not be surprised to see the Division reduce its focus on widespread investigations and liquidated damages, which became more common in the last administration, and reopen its doors to working with employers to ensure compliance. This could to a renewal of the process by which employers may seek an Administrator’s opinion letter, which can provide an absolute defense against claims challenging the practices covered by the letter.
Potential Opportunities for Employers?
Employers should pay attention to the new Secretary’s first steps in this new administration, especially to the team that he nominates to be confirmed by Congress. While we do not expect sub-regulatory agencies like the Wage and Hour Division to stop enforcing the laws they are empowered to oversee, we do anticipate that an Acosta-led DOL will present fresh opportunities to address and ensure compliance in a less hostile regulatory environment.
While it’s difficult to know the exact steps that Secretary Acosta will take to advance the new administration’s agenda, it seems clear that the next few months could be quite momentous at the DOL. Not only do we expect increased clarity into how the DOL will operate under new leadership, but we believe the changes that the DOL makes may create new opportunities for employers seeking to proactively ensure compliance with the various laws that the DOL enforces. We will, of course, continue to keep our readers apprised of the latest developments.