Jeffrey (Jeff) H. Ruzal, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s New York office, was quoted in Law360 Employment Authority, in “Labor Nom Faces Senate Fight, but She Can Run DOL Anyway,” by Max Kutner. (Read the full version – subscription required.)
Following is an excerpt:
President Joe Biden's nominee to run the U.S. Department of Labor faced opposition during a confirmation hearing on Thursday, but she is already running the agency and could continue doing so without Senate approval.
Julie Su's future as the U.S. Senate-confirmed labor secretary is not entirely certain, given the backlash to her nomination by Republicans and the business community. But Su is the first labor secretary nominee since before the George W. Bush administration to also be serving as acting labor secretary, and she could remain in that temporary role even if the nomination fails. …
Under the 1998 Federal Vacancies Reform Act, which covers vacancies requiring presidential appointment and Senate confirmation, a nominee typically cannot also serve as the acting official in that role.
But there is an exception for a person who served as first assistant to the position for a certain amount of time, or if the person was the first assistant in a presidentially appointed, Senate-confirmed role, as Su was as deputy secretary.
Also under the vacancies law, an acting official normally can serve for only 210 days, but that clock stops when the president nominates someone for the role. If the Senate rejects the nomination, the 210-day clock starts again until there is a new nomination.
But Su has even greater coverage under 29 U.S. Code § 552, an agency succession statute that establishes the office of the deputy labor secretary, Vacancies Act experts said. ...
Su's ability to run the agency without Senate confirmation is concerning, said Jeff Ruzal of management-side firm Epstein Becker Green, which is representing challengers to a DOL tip regulation in a case at the Fifth Circuit.
"It creates a mechanism by which this unconfirmed acting secretary can remain in the seat in perpetuity," said Ruzal, who served as an attorney in the DOL solicitor's office under former President Barack Obama. "It allows President Biden to more closely shape and more aggressively shape the policies that his office wants to enact through the Labor Department."
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