Lauren Brown
Institute for Legal Reform


April 27, 2017


The United States Senate today confirmed Alexander Acosta by a vote of 60-38 to be the twenty-seventh Secretary of Labor, 98 days after President Trump took office. Observers of labor policy have eagerly anticipated Acosta’s confirmation, which should bring much-needed relief for many in the business community.

As this blog noted last month, Mr. Acosta was nominated to serve as Secretary of Labor following the withdrawal of President Trump’s initial pick, former restaurant executive Andrew Puzder. That situation caused a substantial delay, making the labor secretary the last cabinet post to be considered by the Senate in this administration. The Senate Committee on Health, Education, Labor, and Pensions (HELP) held its hearing for Acosta on March 22 and approved his nomination along party lines on March 30.

Given the partisan nature of the committee vote, there was some question as to whether Acosta’s confirmation might face a filibuster, which would have been unusual given his track record of three prior Senate-confirmed positions. The U.S. Chamber sent a letter to both Leader McConnell and Leader Schumer urging them to “favorably consider Alexander Acosta for the position of U.S. Secretary of Labor.” In the end, the Senate filed cloture on April 25, which set in motion the process necessary for Acosta to be voted on and confirmed.

Acosta’s confirmation will now allow the administration to begin filling in other key positions at the Department of Labor such as the directors of the Occupational Safety and Health Administration and the Wage and Hour Division, both of which have important policy issues to address, among others.

For example, many businesses hope to see a reversal of OSHA’s so-called walk-around letter, which allowed union representatives on walk-around inspections at non-union workplaces. As one observer noted in an article on this site, in the previous administration OSHA developed a pattern of creating new policies through “sub regulatory” actions, which left affected parties out of the conversation even though fundamental changes were occurring.

Another important issue Acosta will need to consider will be the previous administration’s approach to joint employment. The uncertainty surrounding joint employment emanated, in part, from Wage and Hour Division Administrator’s Interpretation No. 2016-1, which reflected the academic beliefs about joint employment liability of now former Administrator David Weil. That philosophy was likewise reflected in the National Labor Relations Board’s (NLRB) Browning-Ferris decision in 2015, though that decision is beyond the purview of the Department of Labor.

Finally, that the Department’s Office of Labor-Management Standards (OLMS) would do well to finally scrutinize the actions of so-called worker centers, which are union front groups that purport to be exempt from important financial reporting requirements by masquerading as nonprofit organizations.

Although it has taken some time, the Acosta’s confirmation as the new Secretary hopefully will signify the beginning of a new approach to key issues of concern to the business community. Employers should hope that under its new leadership, the Department of Labor will restore much-needed balance to labor and employment policy that has been lacking for eight years.

About the authors

Lauren Brown