United States: Alex Acosta, Former NLRB Member, Nominated As Secretary Of Labor

Last Updated: February 17 2017
Article by Michael J. Lotito and Ilyse W. Schuman

President Trump announced today that he intends to nominate R. Alexander Acosta as the Secretary of Labor. Mr. Trump's initial nominee for the position, Andrew Puzder, withdrew his candidacy yesterday.

Mr. Acosta, a Florida native and the son of Cuban immigrants, has a legal background with many years of government service. He earned both his undergraduate and law degrees from Harvard University and he later clerked for Justice Samuel Alito (when Justice Alito was a judge on the U.S. Court of Appeals for the Third Circuit). Following his clerkship, nominee Acosta specialized in labor and employment law in a Washington, D.C. law firm.

After several years in private practice, nominee Acosta was appointed by President George W. Bush to serve as a member of the National Labor Relations Board. Mr. Acosta served on the Board for about eight months (December 2002 through August 2003). During Mr. Acosta's brief tenure, Republican Board nominees maintained the Board majority. Mr. Acosta did not author any particularly controversial decisions.

After Mr. Acosta left the Board in 2003, he served for two years as Assistant Attorney General in the Civil Rights Division of the U.S. Department of Justice. Thereafter, from 2005 to 2009, he served as the U.S. Attorney for the Southern District of Florida, where he expanded that office's focus on white-collar crime and health care fraud. Most recently, he has been the Dean of the Florida International University College of Law in Miami. In 2014, nominee Acosta was named a member of the Florida Commission on Access to Civil Justice, a panel that studies and seeks to improve access to justice and legal services for low-income and middle class residents. He also serves as chairman of U.S. Century Bank, a large domestically-owned Hispanic community bank in Florida.

Despite nominee Acosta's wealth of experience in the private sector, government, and academia, it is difficult to predict how he might steer the Department of Labor if confirmed by the U.S. Senate. Under his predecessor, Thomas Perez, the DOL implemented numerous rules and initiatives in furtherance of the Obama Administration's "middle class economics" agenda. For example, the DOL in recent years placed particular emphasis on independent contractor misclassification issues and theories of expanded joint-employer liability.1 The DOL also initiated significant amendments to the white-collar exemptions to the federal overtime requirement, although those amendments were stayed in light of ongoing litigation.2 Legal and legislative challenges are also pending against other Obama-era DOL regulations, including the so-called "fiduciary" rule, which sought to eliminate conflicts of interest in investment advising.3 The incoming Secretary of Labor will inherit these issues and presumably will revisit the agency's priorities. Given his background, nominee Acosta may be inclined toward a more management-friendly position on workplace policies.

Nonetheless, it is unclear how Mr. Acosta may interpret the scope of the DOL's authority, particularly as he does not seem opposed in principle to agency rulemaking. In 2010, for example, he published an article expressing concern about the relevance of the Board and its future.4 In the article, Mr. Acosta suggested that the Board should abandon its piecemeal, quasi-judicial means of resolving disputes in favor of a quasi-legislative approach. Specifically, Mr. Acosta advocated for increased Board rulemaking, similar to other administrative agencies that promulgate rules after notice-and-comment procedures. According to Mr. Acosta, structural changes to embrace rulemaking would promote predictability, efficiency, and stability and would result in greater respect for the Board's input. Of course, Acosta's theoretical support for Board rulemaking is hardly a blanket endorsement of a sweeping workplace regulatory regime. The confirmation process surely will reveal much more information about Mr. Acosta's views on the role of the DOL in shaping workplace policy.

Thus far, Mr. Acosta's nomination has been well-received. Senators Mike Lee (R-UT) and Marco Rubio (R-FL) expressed their support, along with Wilma Liebman, a Democratic former member of the Board who served with Mr. Acosta. Congressman Bradley Byrne (R-AL), chair of the House Subcommittee on Workforce Protections, praised Mr. Acosta's experience as well as his "record of protecting American workers and upholding the law."5 Nominee Acosta will likely also benefit from the backing of Senator Lamar Alexander (R-TN), who chairs the Senate Committee on Health, Education, Labor & Pensions, which will hold Mr. Acosta's confirmation hearing. And while his current candidacy cannot be guaranteed, Mr. Acosta has been confirmed by the Senate three times in the past in his prior federal positions. If nominee Acosta is successful, he will become the first Hispanic member of President Trump's cabinet.

Footnotes

1. See, e.g., Michael J. Lotito & Ilyse Schuman, Department of Labor's Exit Memorandum Calls for Changes to Address Gig Economy Employment, Littler ASAP (Jan. 6, 2017).

2. See, e.g., Sean McCrory et al., Federal Court Blocks New Overtime Rule, Littler ASAP (Nov. 23, 2016).

3. See, e.g., Ilyse Schuman et al., Department of Labor Issues Final Fiduciary Rule, Littler Insight (Apr. 7, 2016).

4. R. Alexander Acosta, Rebuilding the Board: An Argument for Structural Change, Over Policy Prescriptions, at the NLRB, 5 Fla. Int'l U. C.L. 347 (2010), available at http://ecollections.law.fiu.edu/lawreview/vol5/iss2/7/.

5. Press Release, Congressman Bradley Byrne, Byrne Statement on Labor Secretary Nomination (Feb. 16, 2017), available at https://byrne.house.gov/media-center/press-releases/byrne-statement-on-labor-secretary-nomination.

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