Paul DeCamp, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s Washington, DC office, was quoted in the Bloomberg BNA Daily Labor Report, in “Labor Dept. Official OK’d to Review Rule Her Dad—as Judge—Blasted,” by Ben Penn.
Following is an excerpt:
The Labor Department’s top lawyer has received an ethics clearance to oversee what is arguably the agency’s most controversial rulemaking, despite her father’s fingerprints on a case involving it, a DOL spokesman confirmed to Bloomberg Law.
Kate O’Scannlain, an appointee of President Donald Trump who was recently sworn in as solicitor of labor, is the daughter of Ninth Circuit Senior Judge Diarmuid O’Scannlain. The judge authored a scathing dissent arguing that the Obama-era DOL rule to ban certain tip-pooling arrangements is illegal. In turn, the Trump administration issued a proposal in December to reverse that 2011 regulation by questioning the original rule’s legality. The proposed rule cites Judge O’Scannlain’s reasoning—a dissent that some attorneys felt exposed the regulation to review and reversal from the U.S. Supreme Court—that the DOL’s interpretation of the Fair Labor Standards Act marked an extreme abuse of agency rulemaking authority.
The solicitor, the department’s third-ranking official and most senior legal officer, is typically at the heart of a regulatory review process. …
Paul DeCamp, who was a WHD administrator in the George W. Bush presidency, said he would defer to the ethics experts on this decision but that he saw no reason why O’Scannlain would have a conflict of interest.
“The Solicitor plainly has no personal financial interest in the matter, and it seems rather unlikely that the judge would ground his daughter if the Department were to take a position in the Final Rule contrary to his dissent,” DeCamp told Bloomberg Law via email. “Under the circumstances, it is difficult to see why recusal would be necessary or appropriate.”
DeCamp, who now represents employers at Epstein Becker Green in Washington, sued the DOL on behalf of the National Restaurant Association, arguing that the 2011 rule exceeded the agency’s authority. His high court petition seeking to invalidate the rule has been pending for a year. The litigation could be rendered moot by the DOL’s new rule.
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