OFCCP Week in Review: May 1, 2017

John C. Fox and Candee Chambers

OFCCP Week in Review: May 1, 2017

John C. Fox and Candee ChambersThe OFCCP Week in Review (WIR) is a simple, fast and direct summary of relevant happenings in the OFCCP regulatory environment, authored by experts John C. Fox and Candee Chambers. In today’s edition they discuss:

  • Senate confirmed Alexander Acosta to be the USDOL’s 27th Secretary of Labor, and coming changes

Thursday, April 27, 2017: Acosta In, and USDOL Subcabinet Appointees Reportedly Not Far Behind
The Senate voted on Thursday 60-38, with two abstentions, to confirm Alexander Acosta, Esq. to be the 27th Secretary of Labor the Senate has confirmed.  The vote thus ended the slowest transition and confirmation process of a USDOL Secretary of Labor in modern history, coming as it did only 2-days before President Trump’s 100th day in office. Secretary Acosta is the last Cabinet official to be confirmed and thus completes President Trump’s cabinet following the longest cabinet confirmation process in the last 30 years.

Vice President Pence swore in Mr. Acosta the next morning in a White House ceremony heavily attended by Latino and Hispanic business leaders from across the United States. Secretary Acosta is now the highest-ranking Latino in the Trump Administration. After the swearing-in ceremony, Secretary Acosta then traveled to the Labor Department and ate lunch as the new Secretary of Labor with surprised USDOL headquarters’ personnel in the Department’s cafeteria high atop the Department’s offices at the foot of Capitol Hill. The confirmation vote was set only after the Senate first voted 61-39 on April 26 to invoke “cloture” to stop the Democrat filibuster of Mr. Acosta’s nomination vote. Voting to confirm Mr. Acosta as The Secretary of Labor were 51 of the Senate’s 52 Republican Senators, 8 Democrats and one Independent (who caucuses with the Democrats). The eight Democrats who broke ranks with their fellow Democrats were Sens. Catherine Cortez Masto (D-NV), Heidi Heitkamp (D-NH), Joe Manchin (D-WV), Claire McCaskill (D-MO), Bob Menendez (D-NJ), Bill Nelson (D-FL), Jon Tester (D-MT) and Mark Warner (D-VA) joined by Angus King (I-ME). NOTE: All of the Democrats who voted for Secretary Acosta were either Hispanic, moderates favoring bi-partisanship and/or facing tough re-election races in either 2018 or 2020.

While neither The Secretary nor The White House has made any official pronouncements about other Trump Administration political appointees, leaks from Capitol Hill are that Secretary Acosta has interviewed numerous candidates for sub-cabinet positions within USDOL for senior Department positions reporting to him, including OFCCP. Absent the Senate’s passage of a special statute waiving its right to subject Secretary Acosta’s lieutenants from the Senate’s “Advise and Consent” process, a long procession of subcabinet appointees will apparently thus soon start forming at the foot of Capitol Hill meeting and greeting Senators in preparation for confirmation hearings before the Senate Health, Education, Labor & Pensions Committee. That process will easily drag into June or beyond at the historically slow pace at which the Senate has been lumbering forward to date to confirm President Trump’s nominees. Senate Democrats, led by Senator Chuck Schumer, have vowed to continue their full court press to resist President Trump’s presidency.

While his only public statements following his swearing in were in support of increased jobs growth, it is widely expected that The Secretary’s first order of business will be to address time-sensitive regulatory reforms and budget reductions. It is expected Secretary Acosta will give early attention to:

  • the so-called “fiduciary rule”,
  • the new wage-hour Rule restricting overtime exemptions,
  • recent Democrat legislative initiatives to raise the minimum wage,
  • several new OSHA Rules restricting the use of certain chemical toxins in the workplace; and
  • the pending 21% budget cut of USDOL The White House recently proposed and which OMB Director Mulvaney two weeks ago ordered be implemented as soon as this October with the advent of Fiscal Year 2018.

Finally, whereto the OFCCP Director. While the OFCCP Director has not historically been subject to the Advise and Consent of the Senate, that position, too, should now undergo the Senate confirmation process. This is because the Obama Administration eliminated the Employment Standards Administration, to which the OFCCP Director had reported since 1971. The elimination of ESA then caused the OFCCP Director to report directly to the Secretary of Labor for the first time since The Secretary of Labor created the Office of the OFCCP Director in 1978. While traditions die hard at USDOL, this change of reporting relationship is material and now makes the OFCCP Director an “Inferior Officer” under the Advise and Consent clause of the U.S. Constitution requiring confirmation absent exemption. If Secretary Acosta continues to cause the Director of the OFCCP to report to him, and decides to now treat the OFCCP Director in accord with the Constitution, this foreshadows more hurdles on the track to the seating of an OFCCP Director…and more delay.


THIS COLUMN IS MEANT TO ASSIST IN A GENERAL UNDERSTANDING OF THE CURRENT LAW AND PRACTICE RELATING TO OFCCP. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. COMPANIES OR INDIVIDUALS WITH PARTICULAR QUESTIONS SHOULD SEEK ADVICE OF COUNSEL.

Reminder: If you have specific OFCCP compliance questions and/or concerns or wish to offer suggestions about future topics for the OFCCP Week In Review, please contact your membership representative at (866) 268-6206 (for DirectEmployers Association Members), or email Candee at candee@directemployers.org with your ideas.

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About the Author

John C. FoxJohn C. Fox, Esq. is President and Senior Partner at Fox, Wang & Morgan P.C. where he represents companies and tries cases in state and federal courts throughout the United States. Mr. Fox has extensive trial experience, having spent more than 300 days in trial. Mr. Fox was also lead trial counsel in the first of the four wage-hour class actions known to have been tried in California and was lead trial counsel in what are believed to have been the two largest disability law suits in the United States. He is an across-the-board employment lawyer representing management nationwide.View all posts by John C. Fox »