Bloomberg Law
April 17, 2023, 9:45 AM

Punching In: All You Need to Know for Su’s DOL Chief Hearing

Rebecca Rainey
Rebecca Rainey
Bruce Rolfsen
Bruce Rolfsen

Monday morning musings for workplace watchers.

Labor Secretary Nominee on the Hill|Safety Review Commission Down to One

Rebecca Rainey: Capitol Hill is hosting a Julie Su double feature this week as Congress considers her nomination for Department of Labor secretary.

The preliminary event will be at a House hearing Wednesday, which Republicans strategically planned a day before her confirmation hearing to highlight the contentious worker classification fight in California, which Su had a role in implementing. While Su may not be making an appearance, GOP House members are hoping the hearing will educate their colleagues in the Senate about the script their colleagues in the upper chamber should follow.

The main show will be on Thursday, when Su will sit before the Senate Health, Education, Labor and Pensions Committee at 10 a.m. in 430 Dirksen Senate Office Building. The waters already look testy ahead of both panels, as Republicans on the HELP committee wrote a letter to Su last week raising concerns about her failure to meet with their staff in-person prior to her testifying before the panel this week.

GOP lawmakers are expected to bring up her tenure as labor secretary for the state of California, which faced rampant unemployment fraud during the pandemic and where she oversaw the implementation of the state’s “ABC test” which presumes most workers are employees rather than independent contractors under the law. The issue is closely watched by construction, trucking, and tech industries, among other business sectors that rely on independent contractors to staff their operations.

But Democrats likely will use Su’s experience running an agency regulating the world’s fifth largest economy and her past work as an attorney defending immigrant workers to demonstrate that she’s qualified for the job.

A group of more than 60 business and investor organizations on April 14 urged lawmakers to confirm Su to the position, pointing to her work helping the DOL create its “Good Jobs Initiative.

“This is exactly the kind of leader our country needs now; someone with a track record of results in a position to affect large scale change to allow businesses, private investors, and the capital markets to better contribute to the prosperity of workers and communities,” according to the letter, signed by the Coalition on Inclusive Economic Growth, Oxfam America, and others.

And while senators on Thursday may want to grill Su on the DOL’s pending independent contractor rulemaking or its plans to issue a proposal to expand overtime protections, it’s likely the current acting labor secretary will give a “no comment” on pending rulemaking. Beyond the DOL’s packed regulatory agenda, there have also been signs of turbulence in high-profile labor negotiations at UPS and the West Coast Ports, two fights that could demand the attention of the Labor Secretary later this summer.

What’s next: After the HELP committee hearing, members will then have to vote on whether to advance her nomination to the Senate floor. If her nomination fails in committee, or before the full Senate, there’s no clear back up plan from the White House to fill that role. If her nomination is rejected, Su could remain as acting head of the agency for 210 days, or until another nomination is submitted to the Senate.


Julie Su, deputy US secretary of labor, speaks during a nomination event with US President Joe Biden, left, at the White House in Washington, DC, March 1, 2023.
Photographer: Al Drago/Bloomberg

Bruce Rolfsen: And then there was one.

While the Biden administration has been quick to fill vacant district and appeals court judgeships, it hasn’t been swift to nominate people for positions at the Occupational Safety and Health Review Commission, the panel that hears appeals of OSHA citations.

As of April 28, the three-member commission will be down to one member: Chair Cynthia Attwood, who’s served on the commission since 2010.

The term of Commissioner Amanda Wood Laihow ends April 27. The commission’s third seat has been empty since March 2021. As of April 15, Biden hadn’t renominated Laihow or announced other commission candidates.

At a March American Bar Association meeting, Attwood said that while she didn’t know who would be nominated, she would look forward to Laihow serving a second term.

“Commissioner Laihow and I have had a wonderful working relationship,” Attwood said.

With the commission down to one member, it means decisions on 13 pending cases are on hold until at least one more commissioner is sworn in. Ahead of the pending pause, Attwood and Laihow have signed off on 10 decisions this year, almost reaching 2022’s total of 11 decisions.

Despite the hold on issuing decisions, the panel can continue to accept more cases appealed following administrative law judge decisions even with a single commissioner, adding to the backlog.

The vacant seats don’t affect the day-to-day proceedings of the commission’s administrative law judges, however. They will be able to continue to conduct hearings and issue decisions that may be referred to the commissioners.

If Biden follows the customary practice of past presidents, he’ll nominate both commissioner candidates at roughly the same time.

Generally, the president picks both candidates so that two commissioners reflect the president’s political outlook, while the third leans toward the party out of the White House.

This year, that could result in Biden renominating Laihow, who worked previously as a Republican Senate staffer and with the National Association of Manufacturers, and a new Democrat-aligned candidate.

The Senate would likely consider the nominees as a pair, and they would be sworn in either together or within days of each other.

We’re punching out. Daily Labor Report subscribers, please check in for updates during the week, and feel free to reach out to us.

To contact the reporters on this story: Rebecca Rainey in Washington at; Bruce Rolfsen in Washington at

To contact the editor responsible for this story: Genevieve Douglas at; Rebekah Mintzer at

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