With three major regulations on the launching pad at the Labor Department, the Trump administration may have found the man with the right stuff to issue air-tight rules that can withstand legal challenges.
The president’s new choice for Labor secretary, Eugene Scalia, built a reputation as a skilled litigator by upending regulations on behalf of the business community, from worker injury cases under 1990 disabilities legislation to an Obama-era rule requiring financial advisers to put clients’ interests first.
Now Scalia could hold the pen on final versions of three regulations covering overtime pay, joint employer relationships and calculation of the so-called regular rate of pay.
President Donald Trump said on July 18 that he would nominate Scalia for secretary of Labor, but a spokesman for the Senate Health, Education, Labor and Pensions Committee said the papers haven’t been filed. Scalia has met with committee Chairman Lamar Alexander, R-Tenn.
One of nine children of the late Supreme Court Justice Antonin Scalia, he was solicitor for the Labor Department during the George W. Bush administration and is currently a partner at Gibson, Dunn & Crutcher in Washington.
“He’s a formidable attorney, very well versed and very well skilled, and very successful in litigation against the Department of Labor,” said Mark Gaston Pearce, former chairman of the National Labor Relations Board and head of the Workers’ Rights Institute at Georgetown Law School.
“I opposed Eugene Scalia’s nomination to the Department of Labor in 2001 because of his hostility towards workplace protections and his positions on workplace harassment and workers’ health and safety,” Democratic Sen. Patty Murray of Washington, the ranking member of the committee, said in a statement. “After spending the last 18 years defending corporations who have trampled on the rights of their workers, he is still the wrong choice and President Trump needs to choose another nominee for Secretary of Labor.”
Glenn Spencer, a senior vice president for employment policy at the U.S. Chamber of Commerce, said Scalia is an excellent choice precisely because he has the skills to issue regulations that will stand up to court challenge. Spencer discounted any suggestion that Scalia wouldn’t adequately represent the public interest as secretary of Labor and enforce laws on the books.
“Knowing Gene, he’ll have no problem doing that,” Spencer said. “He takes the law very seriously.”
One of Scalia’s biggest legal victories was to overturn the Labor Department’s fiduciary rule, an Obama administration attempt to require investment advisers to put a client’s interests ahead of their own in making investment recommendations.
“He can sell you a product that he’s selling you so he gets a trip to the Bahamas next year,” said M. Patricia Smith, the Labor Department solicitor during the Obama administration.
The March 2018 victory in the 5th Circuit Court of Appeals gave the department legal cover to walk away from the rule after two other federal courts had upheld it, Smith said.
In another win for big business, Scalia defended UPS in a class-action suit alleging the company discriminated against workers injured on the job by not allowing them to return to another job at less than 100 percent fitness. A federal appeals court threw out the class action filed under 1990 disabilities legislation in 2009.
Securities and Exchange Commission regulations have been a special Scalia target. In July 2010, he successfully challenged an SEC rule on fixed indexed annuities by undermining the agency’s cost-benefit analysis, and he beat the agency again in a July 2011 decision invalidating rules that would have allowed 3 percent of company shareholders to nominate board candidates.