Policy could take precedence over politics as Deputy Labor Secretary Julie Su appears poised to succeed Labor Secretary Marty Walsh—even if only temporarily—placing an ardent enforcer of labor rights atop the US Labor Department.
With Walsh’s imminent departure from the DOL to the National Hockey League Players Association, multiple scenarios could play out in the transition of power. The White House and the agency have declined to comment on reports of Walsh’s possible exit.
“I think we absolutely will see a different posture from Su,” Dan Altchek, a partner at Saul Ewing in Baltimore, said in a phone interview. “I think that Secretary Walsh came from a real kind of traditional labor management relations background. He was a union negotiator, before he was a politician and a deal maker, and he saw a role for himself to get involved in some major, high-profile labor disputes.”
He doesn’t see Su stepping into that role. “I think she will be much more focused on kind of nitty gritty policy issues,” Altchek said. “Much more in the individual worker rights arena, where she has built her career and been focused in California and at the DOL.”
Su’s reputation as an advocate for immigrants and vulnerable workers has already prompted support from the Asian-American and Pacific Islander community and sparked concern from industry groups and Republicans who fear a less business-friendly DOL.
“While we will likely have our disagreements concerning independent work and overtime pay, we certainly hope to find common ground with the Acting Secretary on immigration reform and workforce development to better position the retail industry and its employees for success,” Ed Egee, the National Retail Federation’s vice president of government relations and workforce development, said by email.
A Campaign Begins
The pressure is on President Joe Biden to name Su as labor secretary: Many progressives and Asian-American organizations felt snubbed when he passed over Su in favor of Walsh for the labor secretary nomination at the start of the administration. That perceived burn has already reignited a campaign to get her confirmed to replace Walsh.
“We remain troubled that the Administration has no Secretary-level AANHPI official serving in the Cabinet, the first time we have not had representation at this level since 2000,” the Congressional Asian Pacific American Caucus said in a statement Feb. 8 formally endorsing Su to be the next secretary.
“Given her experience serving as Deputy Secretary of Labor since July 2021, we know Deputy Secretary Su can hit the ground running on executing existing initiatives of the Department while implementing new ones,” the group said.
During a briefing Thursday, White House Press Secretary Karine Jean-Pierre responded to a pointed question about the lack of an Asian-American Cabinet member, saying the president was committed to diversity in his administration and that “we’ll continue to work towards that.”
Republicans had already feared Su would act as a “shadow secretary” behind Walsh given her knowledge of enforcement and policy background in California. Former Boston Mayor Walsh took on a much more public-facing, political role at the agency, often stumping for the president’s agenda on trips across the country and speaking at public events to tout job training.
“I think Julie Su would see this position as one of chief enforcer as opposed to chief workforce development,” said Michael Lotito, co-chair of Littler Mendelson PC’s Workplace Policy Institute. “That is a warning light to the employer-regulated community that the DOL that they had for the first two years is not going to be the same DOL that we’ll have for the second two years.”
Su would “be very aggressive” in enforcement of the DOL’s forthcoming rule on independent contractor status, Lotito said. “She’ll certainly urge the solicitor to be very aggressive with respect to pushing the envelope in interpretations.”
Su worked for more than a decade as an attorney with the Asian Pacific American Legal Center and became secretary of the California Labor and Workforce Development Agency, where she
was instrumental in enforcing A.B. 5, the state’s high-profile 2019 law presuming most workers were employees, as opposed to independent contractors.
Jason C. Schwartz, a partner at Gibson, Dunn & Crutcher LLP in Washington, said Su likely would focus on issues surrounding wage and hour violations, contractor civil rights, and worker safety—particularly for low-wage workers—if she were to lead the agency.
“My guess would be that she’s going to be most interested in enforcement efforts to assist low-wage workers. I think that’s consistent with her history and passion,” Schwartz said, pointing to the 2014 “Wage Theft Is A Crime” initiative Su launched in California aimed at informing low-wage workers of their rights.
But some have questioned how much of Su’s California enforcement style could actually translate into her work at the top of the DOL, given that the federal labor laws are significantly weaker than those in the Golden State.
“Comparisons to what she did in California aren’t the right ones because California is an entirely different ecosystem than the work the US DOL is going to do,” said Judy Conti, director of government affairs for the National Employment Law Project. “Her authority is only as broad as the laws she has available.”
Can She Be Blocked?
Su faced a contentious nomination hearing during her confirmation process for deputy labor secretary in 2021and was peppered with questions on her management of California’s unemployment insurance system.
Already, the top Republican on the House labor committee has vowed to keep a close eye on Su if she takes over the agency.
“Under her leadership, I expect the agency to continue playing favorites with Big Labor at the expense of job creators and independent workers,” Education and the Workforce Committee Chair
Odds are slim her confirmation would be blocked with Democrats’ small electoral gains in the Senate during the midterms, despite GOP and business objections.
Biden also could do nothing, leaving Su to assume power in an acting capacity.
Because of how the Federal Vacancies Act is written, the first deputy automatically becomes acting head of the agency. If Biden officially nominates Su, the act also would allow her to remain atop the agency beyond the normal limits for acting officials because she already was confirmed by the Senate to the DOL’s No. 2 spot.
— With assistance from Diego Areas Munhoz and Courtney Rozen
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