On March 30, 2017, the U.S. Senate Committee on Health, Education, Labor and Pensions approved President Trump's nomination of Alexander Acosta for Secretary of Labor. The next stop for Acosta will be the Senate floor, where he only needs to win a majority vote to be confirmed. If the vote does not occur next week, Acosta will have to wait until at least the end of April when the Senate will return from a two-week recess.
Quick confirmation of Acosta would be welcome news for the business community, which is hopeful that the U.S. Department of Labor (DOL) will address certain labor policy changes that were advanced by the previous administration. Chief among these issues is how the DOL will handle the legal challenge to the overtime regulations. While the regulations were enjoined in November of 2016, the previous administration filed an appeal on its way out the door. The DOL must file its reply brief by May 1, 2017. Acosta hinted at his confirmation hearing that he might favor some increase in the salary threshold. How the DOL will ultimately address this issue if Acosta is confirmed remains unclear.
Another litigation-related decision awaits Acosta if he is confirmed: whether to move forward with the DOL's appeal of the 2016 decision by the U.S. District Court for the Northern District of Texas to enjoin the "persuader" rule. Finally, if Acosta is confirmed, he and the White House will have to nominate individuals to run the DOL offices such as the Wage and Hour Division, the Occupational Safety and Health Administration, and the Office of Federal Contract Compliance Programs, among others. The individuals in these positions will have a real impact on how these offices will conduct investigations and enforcement actions. Employers remain hopeful that these offices will choose to take a cooperative—rather than antagonistic—approach to compliance.
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