Last month, Bloomberg’s Ben Penn wrote that Secretary of Labor Alex Acosta is “keeping a low profile in this first year in office, possibly because he has his eye on another job.” I commented that “low profile” means keeping Barack Obama’s left-wing program in place. “Another job” means a high-level federal judgeship. “Possibly” means certainly.
I also noted that history was repeating itself. Acosta took the same “cautious” approach when he was head of the Justice Department’s Civil Rights Division.
Acosta gets away with his caution because the issues he’s dealing with matter more to leftists than to conservatives. His failure to remove Obama-Tom Perez holdovers on the Administrative Review Board, about which I wrote yesterday, is a good example. The Board’s leftist decisions may upset particular companies and their counsel, but they are big boys so they move on.
The plaintiffs’ bar, by contrast, is intensely interested in the ARB — for good reason given its wide-ranging jurisdiction — and, as always, it has the ear of Democratic politicians. The path of least resistance, therefore, is for Acosta to leave the Board undisturbed
Now, however, Acosta’s caution has come to the attention of Marco Rubio, and the Senator is not pleased. In a letter to Acosta, Rubio, who represents the Secretary’s home state, says:
I have strong concerns with reports that department employees are still using the Obama Administration’s interpretation of independent contractors under the FLSA with respect to home health registries. Stakeholders in my state have reported that personnel within the Wage and Hour Division and the Solicitor’s office are still applying the prior administration’s guidance on joint employment and independent contractors months after you withdrew the guidance.
I respectfully request for you to provide additional direction to all divisions within the department outlining the provisions of the withdrawn guidance related to joint employment and independent contractors. Additionally, I ask that you examine enforcements and investigations related to these matters since June 2017 and take corrective action if it is determined that the department was wrongfully using the now withdrawn guidance.
I hope I’m not being unfair, but this scenario seems like vintage Acosta — withdraw Obama’s interpretation, but do nothing to prevent DOL employees from continuing to use it. In other words, try to split the baby and avoid criticism from either side.
In this case, the cynical strategy may not quite have worked as planned. But Acosta can pacify Rubio by complying with the letter, while blaming retrograde career employees for the problem. He can then tell the other side that he had no choice but to clamp down once Rubio sent the letter.
I wonder, though, whether important conservatives are beginning to catch on to Acosta’s double game.