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

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.



Second, in addition to helping implement laws through regulations, the agency also enforces existing laws and regulations. For example, the DOL enforces the mandates provided for by the Family and Medical Leave Act (FMLA), the Employee Retirement Income Security Act (ERISA), and The Fair Labor Standards Act (FLSA). So, if an employer violates one of these laws, the Department of Labor may take administrative steps or another form of legal action to punish the employer and/or protect the employee.

But how does the agency decide how to craft regulations and enforce federal laws designed to protect workers? With much discretion. Remember, there are often two competing considerations when an agency creates a regulation, so there is inherently a bit of leeway in how an organization like the Department of Labor can operate.

The role of the secretary of Labor

Can you guess who the single most influential individual is when it comes to how the Department of Labor will create regulations and enforce existing law? That’s right, the secretary of Labor. The secretary can decide which legal cases or administrative actions the agency will participate in, the position it will have in those cases, as well as what type of approach to take when creating regulations.

For instance, under the Obama administration, the Department of Labor tried to update overtime regulations such that the threshold that would delineate between individuals who were eligible for overtime pay and those who were not would be raised from the current $455 per week threshold to $913 per week. However, under the Trump administration, the agency is only asking to raise that threshold to $679 per week.

The higher value of $913 is better for workers because it will result in a large number who can potentially become eligible for overtime pay. In essence, today’s Department of Labor believes that fewer individuals should be eligible for overtime pay than the agency did under the Obama administration.

And when there are disagreements about the interpretation of a law or regulation, the secretary of Labor can weigh in on the official stance of the Department of Labor. This can be very influential on members of Congress or the courts.

Given Scalia’s history, it’s safe to assume that he will direct the agency to craft regulations to be as employer-friendly as allowed by the law and limit the department’s enforcement actions whenever reasonably possible. All of this means that workers in the United States can expect fewer legal protections from the federal government.

Tom Spiggle is author of the book “You’re Pregnant? You’re Fired: Protecting Mothers, Fathers, and Other Caregivers in the Workplace.” He is founder of the Spiggle Law Firm, which has offices in Arlington, Va., Washington, D.C., and Nashville, Tenn., where he focuses on workplace law helping protect the rights of clients facing pregnancy and caregiver discrimination, sexual harassment, and wrongful termination in the workplace.

Click here to sign up for the free IB ezine — your twice-weekly resource for local business news, analysis, voices, and the names you need to know. If you are not already a subscriber to In Business magazine, be sure to sign up for our monthly print edition here.