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The Face of DOL is New, the Name is Not; Trump Picks Scalia for Secretary of Labor

This past Thursday, President Donald Trump announced that he would nominate Eugene Scalia to be the next secretary of labor. Readers will recall that the current secretary, Alexander Acosta, resigned on July 12, 2019.  Acosta was subjected to much criticism for his actions many years earlier when he was the U.S. Attorney for the Southern District of Florida, the office that is accused of allowing Epstein to escape significant sentencing for his sex crimes.  

The Scalia name should instantly remind readers of deceased Supreme Court Justice Antonin Scalia. In fact, the secretary-designate is Justice Scalia’s son.  However, no one should conclude that Eugene Scalia got the nomination based on name recognition alone because he is in fact an accomplished attorney who has a long and distinguished record in the field of labor and employment law.  Among his many accomplishments, he served as solicitor for the Department of Labor (DOL) under President George W. Bush.

Like his dad, Eugene Scalia has a long record of adhering to and advocating for conservative political views. As a labor lawyer, he has a track record of representing major employers in battles against labor unions. He is also a longstanding member of the Federalist Society, a group that advocates for conservative and libertarian reforms to the legal system.  As a result, the nominee is likely to face a tough confirmation hearing in the Senate at the hands of liberal Democrats and pro-union advocates who have already stated their opposition. Senate Minority Leader Chuck Schumer has already stated his objections. In fact, Scalia could not pass Senate confirmation when he was nominated solicitor in 2001 and only served under a recess appointment.

Separate and apart from the criticism he faced for his role in the Epstein scandal, Acosta was also criticized by many in the Trump administration for slow-walking regulatory reform and for not pushing back harder on some of the more liberal changes made during the Obama administration.  Once it became known that Acosta would be leaving, but before the nomination of Scalia, the Trump administration designated Patrick Pizzella as the acting secretary of labor. Many pundits believe Pizzella, who will remain acting secretary until Scalia is confirmed,  confirmation is finalized, was put into that role in order to more rapidly promulgate pro-business regulatory reform in the labor arena.  Historically, acting cabinet members were expected to act in a “placeholder” role until a permanent selection was confirmed.  But alas, these are not normal times.  Pizzella also has a long record of advocating for pro-business regulatory reform. As such, Pizzella may not wait for a Scalia confirmation in the Senate to start the ball rolling on major regulatory reform at DOL. Employers need to stay tuned to developments that will impact their workplaces.

© 2020 Foley & Lardner LLPNational Law Review, Volume IX, Number 203


About this Author

Mark J. Neuberger, Of Counsel, Miami Lawyer, Foley Lardner, Non profit Attorney
Of Counsel

Mark J. Neuberger is of counsel and a litigation lawyer with Foley & Lardner LLP. His practice involves the representation of management in all areas of employment law, including general labor and employment guidance to clients. He regularly represents clients in the health care, hospitality, manufacturing and not-for-profit industries. He is a member of the firm’s Labor & Employment and Private Equity & Venture Capital Practices as well as the Health Care Industry Team. Mr. Neuberger also serves on Foley’s national Pro Bono Legal Services Committee.