(Photo: Rex Features via AP Images)
When, amid scandal and scrutiny, the bombastic fast-food CEO Andy Puzder withdrew himself as President Trump's nominee for secretary of labor back in February, worker advocates—who'd run an aggressive campaign to oppose him—let out a collective sigh of relief. As a vocal opponent of higher minimum wages and stronger labor laws, Puzder seemed the very antithesis of the Department of Labor's mission of protecting workers.
Puzder has since moved on, frequenting cable news shows as a Trump booster, and is reportedly writing a book that attacks progressive policies and labor unions. Trump's second choice, Alex Acosta, a relatively unknown conservative labor lawyer, was seen as a much milder alternative. Since confirmed, even with the fate of several major Obama-era labor regulations in the air, Acosta has maintained a low profile. But all that could soon change. Until now, Trump's Labor Department staff has been skeletal, the consequence of the administration's slowness in designating nominees, and the Republican-controlled Senate's foot-dragging in holding confirmation hearings. But with the Senate now back in session and Trump finally naming nominees to fill out Labor's roster, the department will likely kick into high gear soon—and once again become a source of anxiety for workers and their advocates.
If the people Trump has tapped for such key positions as overseeing mining safety, enforcing wage-and-hour laws, and guiding the department's regulatory policy are any indication, the department will enthusiastically embrace industry priorities. Despite Trump's campaign rhetoric that promised to bring a voice for workers into the White House, he is filling the DOL with lobbyists, anti-union activists, industry executives, and management-side lawyers who appear hell-bent on erasing the work of Obama's Labor Department.
TRUMP HAS TAPPED Pat Pizzella as Acosta’s top lieutenant, who will be charged with leading the day-to-day operations of the department. Before serving in President George W. Bush’s Labor Department, Pizzella spent the late 1990s lobbying on behalf of the government of the Northern Mariana Islands, a U.S. commonwealth near Guam. As Mother Jones reported, Pizzella was a key player in an intensive campaign spearheaded by the infamous lobbyist Jack Abramoff to stifle bipartisan efforts to bring the islands under the purview of federal labor law. Under a longstanding agreement between the commonwealth and the U.S. government, the islands were exempt from the federal minimum-wage and immigration laws. The islands’ government, in tandem with garment manufacturers, brought in huge numbers of guest workers to make clothing for companies like Brooks Brothers and Banana Republic. It was modern-day indentured servitude: Many were required to pay large fees to recruiters for these jobs, and then to pay their debts off with meager sweatshop wages.
Confronted with reports revealing the inhumane conditions under which the islands' garment workers labored, the U.S. Senate in 1995 voted unanimously to repeal the commonwealth's minimum-wage exemption. Lobbying on behalf of the commonwealth, Pizzella led the effort to convince members of Congress, at times during luxurious congressional junkets on the islands, that the issue was a matter of preserving a free-market utopia—a “laboratory of liberty.” Pizzella, and the trips, proved persuasive; the commonwealth wasn't brought under federal minimum-wage law until 2007 and immigration law until 2008.
At his Senate confirmation hearing for his pending appointment in July, Pizzella said he didn't remember much about his lobbying for CNMI and wasn't aware of any human rights abuse at the time, calling the newspaper and governmental reports mere “allegations.”
ON THE SATURDAY MORNING of Labor Day weekend, the White House quietly announced that Trump would nominate David Zatezalo to head up the Mine Safety and Health Administration, which is charged with inspecting mines and investigating miners’ injuries and deaths on the job—at a time when mining deaths are increasing nationwide. Zatezalo was the CEO of Rhino Resources during the years when the Kentucky-based coal company had repeated encounters with MSHA enforcers as the Obama administration cracked down on mine safety in the wake of the Upper Big Branch mine disaster in 2011.
As The Charleston Gazette-Mail reported, in 2010 MSHA issued a “patterns of violations” warning letter to one of the company’s West Virginia mines, citing repeated safety violations that would result in stiffer penalties if the company didn’t shape up. Rhino improved its safety standards, but apparently not sufficiently. In 2011 a miner was killed when part of a wall collapsed in on him, and soon after, MSHA issued a second “patterns of violations” letter. Also in 2011, the Gazette-Mail noted, MSHA sought a federal court injunction against Rhino after discovering that a mine employee had tipped off a foreman working underground that MSHA inspectors were on site, investigating a complaint about employees smoking underground.
Worker safety advocates and coal miners' unions warn that putting Zatezalo in charge of protecting miners from unscrupulous coal barons—a concern that Zatezalo insists will not be a problem—is a classic example of a fox guarding the henhouse. Zatezalo was reportedly urged to put his name in for the job by coal executive Bob Murray, a major Trump supporter and aggressive opponent of Obama’s coal crackdown. As The Huffington Post explains, Zatezalo couldn’t completely roll back enforcement without congressional action, but there are other ways he could be a friend to industry, including changing the criteria for determining who gets on MSHA’s “patterns of violations” list, opting not to pursue high-dollar fines, or soft-balling the demands on companies in settlement talks.
The agency could also put forward more industry-friendly rules. As part of Trump's crusade to lower regulatory burdens, it is currently trying to weaken an Obama-era rule on hard rock mining inspections by allowing inspectors to examine mines without halting operations and allowing companies to avoid recording hazardous conditions so long as they’re fixed right away.
“It's disappointing but not surprising that President Trump has appointed as head of MSHA a fox to oversee the henhouse,” Jordan Barab, who served as the Obama's deputy assistant secretary at OSHA, told the Prospect. “Is he going to be able to come down hard on his former friends and colleagues for endangering miners, or be able to face their criticism for pushing new life-saving regulatory protections?”
ON THE FRIDAY OF LABOR DAY weekend, the Trump administration also announced its intention to nominate Cheryl Stanton, as the department’s Wage and Hour administrator, the position charged with enforcing the nation’s minimum wage, overtime, and other core employment laws. She currently is the head of the South Carolina Department of Employment and Workforce, a state agency that does no wage-and-hour enforcement because South Carolina is one of five states that does not have its own minimum-wage law. Her wage-and-hour experience comes from her time as a lawyer for Ogletree Deakins, one of the most prominent labor and employment law firms for corporations.
Bloomberg BNA has uncovered a handful of cases Stanton worked on during her decade at the firm that involved labor issues like wage theft and misclassification—issues that are at the core of the Wage and Hour Division’s mission. In 2009, after delivery drivers for the pizza chain Domino’s filed suit alleging the company failed to pay the minimum wage, Stanton was retained to defend the company; she urged the court to dismiss the case’s class-action certification. She was at one point also the lead attorney for FedEx on a class-action case in which drivers in New Jersey contended that they had been misclassified as independent contractors and illegally denied overtime pay. A judge approved a series of settlements just this year awarding more than $220 million to drivers across 19 states. She’s also represented companies like Barnes & Noble against claims that employees were misclassified as managers and denied overtime pay.
Her confirmation, though, might draw some scrutiny for matters outside of her professional experience: It has been reported that Stanton was sued for failing to pay her housecleaners.
If confirmed, Stanton would succeed Obama administration Wage and Hour chief David Weil, a leading labor expert who implemented a sophisticated strategy that stopped relying so much on complaints to drive enforcement and used its limited investigative resources to target industries (such as fast-food and agriculture) where there were known to be high concentrations of wage-and-hour violations. Weil also activated the agency's dormant statutory powers to make it more costly to violate labor laws. He also led an effort to take on what he has dubbed “the fissured workplace,” the arrangements in which companies utilize so-called independent contractors as well as webs of subcontractors, temp agencies, and franchisees to upend the traditional employer-employee relationship and dilute accountability for labor violations. Weil prioritized independent contractor misclassification during worksite audits and issued a memo clarifying when an employer is a “joint employer”—that is, when a parent corporation or a fast-food mega-chain, for instance, is responsible for a subcontractor, franchisee, or staffing agency's labor violations.
Weil's tactics drew the wrath of nearly every business trade group, which claimed they were a massive regulatory invasion and an overly antagonistic approach to job creators. Stanton would be charged with reviewing Weil's strategies and determining which to roll back or augment. Traditionally, Republican Labor Departments support strategies that emphasize cooperation with employers to improve compliance rather than trying to levy fines against repeat offenders. Trump's wage-and-hour division is also expected to restart the practice of issuing “opinion letters” to businesses that request specific legal advice on wage-and-hour matters, a practice used widely by the George W. Bush Labor Department, but ended under Obama. Companies often use the letters as evidence in court cases to defend their practices—labor advocates call them “get-out-of-jail-free cards.” Already, industries like those in home-care services are knocking on the department’s door, asking for more favorable treatment on key wage-and-hour issues that will benefit their bottom line.
“If confirmed, Stanton will be tasked with holding employers accountable when they steal workers' wages,” writes Celine McNicholas, labor counsel for the Economic Policy Institute. “Her history of siding against workers certainly raises the question of how vigorously she will approach this task.”
TRUMP HAS ALSO CHARGED a long-time anti-union activist with running the department’s internal policy shop, as well as leading the department’s deregulatory team. Nathan Mehrens, already confirmed as deputy assistant secretary for policy, served in Bush’s Labor Department, working to increase financial disclosure requirements for unions. Before coming to work for Trump, he was the president of Americans for Limited Government, which, as Mother Jones reported, runs projects like SEIU Monitor, which aims to expose fraud within the Service Employees International Union, and Reform the NLRB, which seeks to curtail the power of the National Labor Relations Board.
Mehrens was opposed to the Obama administration's persuader rule, which required employers to disclose when and whether they hire union-avoidance consultants. He also advocates for cracking down on the workers centers that have sprung up chiefly in immigrant communities. The anti-worker-center campaign seeks to prohibit those groups, which are advancing innovative organizing strategies for workers in marginal industries and promoting progressive labor law in cities, from receiving money from foundations and using tactics like secondary boycotts.
Meanwhile, Secretary Acosta is preparing to make some noise of his own. He will soon announce the fate of Obama's overtime rule, which expanded the right to overtime pay to millions of workers but has since stalled in court. Acosta has directed the department to reconsider the rule and will likely pare it down to a level deemed satisfactory by the new power player in the Labor Department: business.
