Senate Confirms New Labor Secretary Eugene Scalia

On September 26, the Senate voted 53 to 44 to confirm Eugene Scalia to serve as the secretary of labor at the Department of Labor (DOL). Scalia’s confirmation comes one week after the Senate Health, Education, Labor and Pensions (HELP) Committee held a full committee hearing on his nomination and just months after the resignation of former Secretary Alexander Acosta due to the recent scrutiny over his role in a 2008 non-prosecution agreement for Jeffery Epstein.

At his Senate hearing, members asked questions about Scalia’s past experience and record as well as his future intentions if he is to be confirmed as the new secretary. The members and Scalia discussed a wide array of labor issues, including apprenticeship, retirement benefits, the joint-employer standard, the now finalized overtime rule, H-2B visas and the gig economy.

Scalia is no outsider when it comes to DOL and has a wealth of public-service experience that predates his extensive legal career. Scalia served as solicitor of DOL under President George W. Bush’s administration from 2002 to 2003, as special assistant to U.S. Attorney General William P. Barr during the George H.W. Bush administration from 1992 to 1993, and as a speechwriter for Education Secretary Bill Bennett from 1985 to 1987 during the Reagan administration.

Scalia is well known in the labor-policy world and has played a role in numerous cases, all of which shed light on his approach to labor laws and regulations. Scalia’s firm lists 18 cases in which Scalia led litigation to successfully reverse federal and state regulations of businesses. In 2006, for example, Scalia successfully argued on behalf of the Retail Industry Leaders Association in a case involving a Maryland law, dubbed the “Walmart Bill,” that required large companies (defined as those with 10,000 or more employees) to spend at least 8 percent of their total payroll on healthcare. The judge in the case ultimately struck down the law, finding it was preempted by the Employee Retirement Income Security Act of 1974.

Scalia also argued on behalf of the Chamber of Commerce and the Financial Services Roundtable against DOL’s fiduciary rule, which was ultimately vacated in 2018. In the 1990s, Scalia was involved in the litigation effort against the Clinton administration’s “ergonomics rule” on repetitive stress injuries, calling ergonomics a “junk science.” This position made confirmation in the Democratic-controlled Senate as Bush’s solicitor general at DOL very difficult, but he was eventually awarded a recess appointment.

Scalia is well regarded within the conservative legal community, and it is widely expected that he will work well with Acting Labor Secretary Patrick Pizzella to continue DOL’s fulfillment of President Trump’s regulatory agenda.