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Aug 15, 201901:12 PMOpen Mic

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What appointing Eugene Scalia as secretary of Labor could mean for workers

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The name of President Donald Trump’s nominee for Labor secretary may sound familiar: Eugene Scalia. That’s because he’s the son of the late Supreme Court Justice Antonin Scalia, who died in 2016.

If confirmed by the Senate, Scalia would succeed former Secretary Alexander Acosta, who stepped down amid a controversy over his handling of criminal charges against hedge-fund investor Jeffrey Epstein more than a decade ago.

(The Department of Labor is currently being overseen by Acting Secretary Patrick Pizzella.)

If you’re concerned about workers’ rights in the U.S., this change of personnel is a big deal. Here’s what you need to know to catch up.

Who is Eugene Scalia?

Scalia is a partner at the law firm Gibson, Dunn & Crutcher and has handled numerous employment law matters, usually on behalf of a major business, such as Ford, Boeing, UPS, and Walmart.

He is probably most well-known for his disagreement with federal regulations intended to protect workers from repetitive stress injuries incurred on the job. Based on his professional biography, it looks like his legal and political philosophy is consistent with putting the employer’s goals over the well-being and rights of employees. For example, he’s taken the following positions or obtained the following legal victories:

  • Allowing employers to force employees to share their tip pools with other workers.
  • Vacating the Department of Labor’s “fiduciary rule” to protect employees with 401(k) investments.
  • Opposing a Maryland law requiring employers to increase health-care spending for employees.
  • Not requiring SeaWorld to follow new federal safety rules following a trainer’s death.
  • Vacating the largest class-action class ever to be certified in an Americans with Disabilities Act lawsuit.

Based on his professional history, it’s fair to say that Scalia won’t be the most employee-friendly advocate. But how exactly does this translate to the American worker if he were to serve as the secretary of Labor?

The role of the Department of Labor

As part of the executive branch, the Department of Labor’s power resides primarily in enforcing existing laws. So as long as Congress writes a law to protect workers, the Department of Labor has to do everything it can to protect the workers as directed by Congress. Well, that’s how it should work in theory, but it’s a bit more complex than that in practice, for several reasons.

First, Congress is filled with many highly-educated individuals, but they do not possess the requisite knowledge and experience to draft laws with enough detail to be both adequately followed by individuals and organizations, as well as implemented by the courts. The “devil is in the details” is an appropriate adage to apply here and that’s why there is a whole other section of government (regulatory agencies) to help develop these details.

For example, let’s say Congress writes a law that makes it illegal to ask employees to work in conditions that would expose workers to unsafe levels of a toxic chemical. Sounds simple, right? But this hypothetical law, by itself, is incredibly unclear. For instance, what exactly constitutes an “unsafe level” of this toxic chemical?

To answer this question, you’d need scientific and industry experts to not only address this issue, but also examine its effect on the industry that’s being regulated. So, a government agency like the Department of Labor will need to keep two, often competing, concerns in mind when creating a regulation: accomplishing the goal of the law passed by Congress, while doing so in a way that creates the least amount of disruption or burden on the industry being regulated.

(Continued)

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