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Industryweek 13268 Alexander Acosta

Overtime Threshold Ripe for Review, Says Trump Labor Pick

March 22, 2017
Alexander Acosta said that the new rule, currently blocked in court, "creates what I’ll call a stress on the system.”

President Donald Trump’s nominee for labor secretary expressed support for increasing the salary threshold at which overtime currently must be paid to employees, but criticized the doubling in the rate put in place by the Obama administration.

During Alexander Acosta’s confirmation hearing before the Senate Health, Education, Labor and Pensions Committee Wednesday, Chairman Lamar Alexander, a Tennessee Republican, criticized the Obama administration’s move to extend overtime benefits to millions more workers and pressed Acosta on his views.

Acosta said it was unfortunate that such a threshold could go unchanged since 2004, but that doubling the limit as President Barack Obama attempted “does create what I’ll call a stress on the system.” The rule is currently blocked in court, and Acosta declined to commit to defend it there.

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150 Million Workers

During his three-hour hearing, Acosta avoided being pinned down on the overtime rule or the fate of particular programs or agencies under Trump’s proposed 21% cut in the department’s funding. Asked by New Hampshire Democrat Maggie Hassan about potential cuts to OSHA inspectors’ ranks, he answered, "Can I commit to no less than current levels? That’s a very precise statement and something is going to have to give somewhere in the budget."

Republicans on the panel praised Acosta and appeared to be ready to vote next week to send his nomination to the full Senate, but Democrats wanted more direct answers and subjected the former Florida prosecutor to sometimes heated questioning.

"You may not want to answer my questions, but there are about 150 million American workers who are pretty interested in the answers to these questions," Massachusetts Senator Elizabeth Warren said in the last minutes of the hearing, after unsuccessfully seeking commitments on overtime, the "fiduciary rule" for financial advisers and workplace safety. "If you can’t give them straight answers on your views on this--not hide behind an executive order-–and commit to stand up for workers on these obvious and very important issues, then I don’t have any confidence you’re the right person for the job."

Overtime Rule

Senators from both parties sought to pin Acosta down on how he would handle the overtime rule, without great success. Acosta told South Carolina Republican Tim Scott that he understood the senators’ desire to know what he would do, but "this is an incredibly complicated rule," he said.

"What I would say is I understand the extreme economic impact that a doubling has in certain parts of the economy," Acosta said. "Because of the size of the increase there are serious questions as to whether the Secretary of Labor even has the power to enact this in the first place."

That did not seem to satisfy Scott, who told the nominee, "These are things that you should be contemplating already."

Asked about the issue by Senator Patty Murray of Washington, the committee’s ranking Democrat, Acosta said he was “very sensitive to the fact that it hasn’t been updated since 2004. We now see an update that is a very large revision and something that needs to be considered is the impact it has on the economy, on nonprofits, on geographic areas that have lower wages.”

Fiery Exchange

In a fiery exchange, Warren pressed Acosta repeatedly, and unsuccessfully, to commit to leave in place the rule enacted under Obama making standards more stringent for exposure to cancer-causing silica dust.

Acosta told her he can’t make a commitment because the White House has ordered review of regulations. Warren expressed disbelief to Acosta that "you want to be Secretary of Labor but you have no opinion" on the issue. Warren also criticized Acosta’s unwillingness to say whether he would defend the overtime rule in court, saying, "You’ve had time to take a look at it, and it’s not a long ruling."

Trump tapped Acosta on Feb. 16 to replace his first nominee, CKE Restaurants Inc. CEO Andrew Puzder, who withdrew amid controversies including his past employment of an undocumented housekeeper, a domestic-abuse accusation in his divorce proceedings and alleged labor law violations at CKE’s Hardee’s and Carl’s Jr. brands.

Acosta arrives with much less personal controversy. He’s also been less outspoken than Puzder, a frequent media commentator, about Labor Department issues.

During his testimony, Acosta touted his "paycheck to paycheck" upbringing, and he promised to fairly enforce the law as senators pressed him on overtime rules and political pressure on hiring.

"As a former prosecutor, my enforcement efforts will always be on the side of the law," Acosta said.

Two Republican senators and former presidential candidates, Marco Rubio and Ted Cruz, introduced Acosta to the committee prior to his opening statement. “He has a sterling record of public service to our state and country,” Rubio told his colleagues, adding that he has “continuously demonstrated his ability to effectively tackle the problems at hand with ease.” Cruz praised him as “a man of character” and “a man who has a passion for justice,” saying he has “an impeccable record” in each of his past public service jobs.

Acosta, the Florida International University law school dean, described for senators how his parents fled Cuba in search of freedom, then worked as a typist and inventory clerk to support him. "They were able to give me these opportunities they did not have because though they didn’t have a college education, they had something very important--and that’s a job,"he said.

He emphasized his concern about the so-called "skills gap" between workers’ skills and employers’ needs; his commitment to enforce workplace safety laws; and his intent to be an "advocate for the American workforce" within the Trump administration. He cited the support his nomination has drawn from some unions familiar with his past government work. 

"They know that while we did not always agree, I was always willing to listen and to consider and to seek principled solutions," he said.

Bush Appointments

Before taking the law school job, Acosta was appointed by George W. Bush and confirmed by the Senate for three past positions: member of the National Labor Relations Board, head of the Justice Department’s Civil Rights Division, and U.S. attorney.

Labor groups, who helped defeat Puzder, have been far more conciliatory toward his replacement. A few unions, including the Laborers International Union of North America and the International Association of Fire Fighters, have already endorsed Acosta’s nomination.

But his performance on Wednesday was panned by the AFL-CIO, whose president Richard Trumka said it "raises serious questions and doubts whether he is committed to making life better for working families." Trumka, who has praised Acosta’s qualifications, said in a statement that the nominee today "offered no indication that he would use those qualifications to stand up for workers."

Democratic senators weren’t sold on Acosta’s responses at the hearing. “I’m digesting still,” Virginia’s Tim Kaine said when asked his view after the hearing ended. “I’m not ready to really say.”

During the hearing, Murray asked him to commit to preserve the funds for the department’s Women’s Bureau. But Acosta told her, "I believe in a unitary executive, so I don’t think any cabinet secretary can make commitments, because ultimately, you have a boss."

Murray responded, "That’s what worries me."

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