- - Monday, June 17, 2019

ANALYSIS/OPINION:

Sometimes you can have a brilliant career doing many things exceptionally well and then turn out just not to be very good at your new job. This certainly seems to be the case with Secretary of Labor Alex Acosta. After a successful career as a lawyer, professor and law school dean, in the over two years since his confirmation, his impact as a change agent at the Department of Labor and its policies has been almost non-existent.

Whether it’s a matter of Mr. Acosta’s temperament or talent, this much is certain: He’s simply not doing the job that President Trump asked him to do. Instead of efficiently streamlining labor laws to free up the economy, he’s been a master of glacial change. Or worse, no change, by continuing to enforce deeply misguided Obama-era policies.

There have been reports that White House acting White House Chief of Staff Mick Mulvaney has inserted himself into the DOL rule-making process. If so, he is to be applauded. Aggressive changes at DOL can’t come a moment too soon.

Atop the list of Mr. Acosta’s failures in the Department of Labor is his decision to continue to pursue a dubious complaint against Oracle for discriminatory wage practices. The DOL originally filed the suit in the waning days of the Obama administration, alleging that the software company’s payment of female and minority employees amounted to discrimination. Ending workplace discrimination is a worthy goal, but the DOL is not using reliable methods here.

As the U.S. Chamber of Commerce explains, the agency “bases its allegations of discrimination solely on statistical analyses and offers no other evidence of discrimination” and relies on “job titles to attempt to demonstrate that certain female, African-American, and Hispanic employees were ‘comparable’ to males and Whites employed in similar roles.” That extremely flawed approach fails to consider different training, experience and qualifications.



As if to underscore the agency’s inappropriate zeal, the federal judge presiding in this case suggested that the government attorneys were less interested in enforcing the law than securing a symbolic victory. He quoted an earlier court opinion to remind them that “Counsel for government has an interest only in the law being observed, not in victory or defeat in any particular litigation.”

Mr. Acosta has also been painfully slow to repair the damage caused by an Obama-era regulation known as the “fiduciary rule,” which established an onerous set of standards governing the relationship between brokers and investors. The Fifth Circuit Court of Appeals vacated the rule last year, giving the DOL an opportunity to provide guidance to brokers and investors. It has not, and ambiguity has reigned. It looks like some guidance may finally arrive this coming September — over a year after the Fifth Circuit’s ruling.

With regard to Labor’s pensions and ERISA regulatory actions, “it is clear that Alexander Acosta’s DOL is continuing the enforcement priorities and overall aggressive stance that was started under the Obama administration,” says Thomas E. Clark Jr., a partner with The Wagner Law Group.

The agency has supposedly been trying to overhaul Job Corps, a $1.7 billion program created in the 1960s to fill the skills gap by providing apprenticeship training. The program, a relic of Great Society thinking, has been a disaster. One participant compared the program to “prison,” while a former program administrator who quit out of frustration told The New York Times that the program simply “doesn’t work.” Mr. Acosta acknowledges that “large-scale changes” are needed to the program, but he simply hasn’t done the work necessary to revamp this outdated model of workforce preparation.

Finally, the DOL has been remarkably late in proposing changes to two other important areas of labor law. In one case, they’ve finally gotten around to clarifying rules governing about who is eligible to receive overtime pay.

In another, rolling back the Obama DOL’s radical changes to the definition of what is known as a “joint employer.” Simply put, then Labor Secretary — now Democratic National Committee Chairman — Tom Perez radically redefined the law to declare that employees of franchisees are employees of their franchisors, gutting a business model that has been a huge American economic success story. It’s a change that has also drastically impacted every major employer in the United States.

Like the overtime rule, this is a welcome change — but one that has been far too long coming.

Mr. Acosta simply hasn’t been doing nearly enough to advance the Trump administration’s urgent goals of rescinding harmful and unnecessary regulations. Fortunately, it looks like the White House has begun to take a hand in the matter and we should support its efforts.

• Bill Walton is chairman of CNP Action, Inc. the 501(c)(4) sister organization of the Council for National Policy. He also served as the Trump transition team senior economic policy adviser.

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