Sources from which I summarized, paraphrased or quoted directly:
Wikipedia, “President Biden designates Frances Perkins homestead as new national monument,” press release, 12/16/2022; Executive Order 14121, Section 3a report, Dec. 2024; Hall of Secretaries, U. S. Dept. of Labor.
by CUPA-HR | December 10, 2024
Over the past few weeks, President-elect Donald Trump has announced several nominations for leads at federal agencies. Of relevance to CUPA-HR members, Trump has nominated Rep. Lori Chavez-DeRemer (R-OR) to serve as secretary at the Department of Labor (DOL) and Linda McMahon to serve as the Department of Education (ED) secretary. The following analysis dives into how Chavez-DeRemer and McMahon may lead each agency’s regulatory action on a few of the most pressing policy issues.
FLSA
Chavez-DeRemer was nominated to serve as labor secretary on November 22. Chavez-DeRemer was viewed as a surprising pick for many in the labor and employment policy space given her Congressional record and support from labor unions. Her nomination raises questions about the direction in which DOL will go under the Trump administration with respect to certain policies and regulations, such as the overtime regulations under the Fair Labor Standards Act (FLSA), joint employer regulations, and independent contractor regulations.
As a reminder, the Biden administration’s overtime regulations were struck down in federal court on November 15. The ruling strikes down all components of the Biden administration’s rule, including the July 2024 and January 2025 salary thresholds and the triennial automatic updates. On November 26, however, the Biden administration filed a notice of appeal to the 5th U.S. Circuit Court of Appeals in hopes of reinstating the rule before their term ends.
Chavez-DeRemer has not publicly supported or opposed the Biden administration’s overtime rule, but labor unions have supported the rule through regulatory comments and public statements. Many anticipated that a second Trump administration’s DOL would stop defending the Biden rule in court if the Biden administration chose to appeal. Given organized labor’s support of Chavez-DeRemer, there is a chance that DOL under her authority would continue to defend the rule in court. However, it appears unlikely that the rule in its entirety would be defended, and it is more likely that DOL would attempt to defend the July salary threshold only. As a reminder, the salary threshold increase that took effect on July 1, 2024, used the Trump administration’s 2019 overtime rule methodology to determine the level, which could lead to a possible reasoning for defending the July salary threshold level.
Joint Employer and Independent Contractor Rules
Similar to the overtime regulations, the future of other labor and employment regulations relevant to higher ed HR appears uncertain in the face of Chavez-DeRemer’s nomination. Two DOL regulations — the joint employer and independent contractor rules — seem certain to swing back in favor of policies like those implemented under the first Trump administration, but Chavez-DeRemer’s inconsistent record in Congress on both issues makes it unclear how DOL under Trump will regulate them.
Notably, Chavez-DeRemer is one of three Republican cosponsors of the Protecting the Right to Organize Act, a Democrat-backed bill that would expand organized labor’s power over workers and employers. There are provisions in the PRO Act that a second Trump DOL is not anticipated to implement, including provisions to apply a controversial “ABC” test for worker classification under the National Labor Relations Act and to adopt a broader joint employer standard under the NLRA than the standard implemented by the Trump administration. Given her support for the PRO Act, Chavez-DeRemer could change direction from the anticipated actions expected from the Trump administration with respect to joint employment and independent contractor status, along with other labor policies.
Linda McMahon was nominated to serve as ED secretary on November 19. McMahon’s nomination was also considered a surprise, but for reasons surrounding her previous experience. During Trump’s first term, McMahon served as the administrator of the U.S. Small Business Administration, and most recently, she served as co-chair of Trump’s transition team. She was previously an executive for World Wrestling Entertainment (WWE). With respect to education, McMahon served as a trustee for Sacred Heart University for over a decade, and she also briefly served on the Connecticut Board of Education.
Title IX
McMahon’s previous positions and experience do not provide much insight into her stance on higher education policy. That being said, we expect that McMahon will largely follow the education policy direction of President-elect Trump if she is confirmed. With respect to Title IX, it is expected that Trump will seek to reimplement his administration’s 2020 Title IX regulations nationwide, which we anticipate McMahon will follow. It remains to be seen if McMahon and the Trump administration’s ED will attempt to issue new Title IX regulations that may be more conservative than those issued in 2020 to address concerns regarding rights and protections for transgender students.
Both Chavez-DeRemer and McMahon will face Senate confirmation hearings by relevant oversight committees and votes by the full Senate. During confirmation hearings, more information about the nominees’ priorities at their respective agencies will be revealed. CUPA-HR will keep members apprised of any updates related to the confirmation process of Chavez-DeRemer and McMahon as well as regulatory updates from DOL and ED.
Since February 2007, International Higher Education Consulting Blog has provided timely news and informational pieces, predominately from a U.S. perspective, that are of interest to both the international education and public diplomacy communities. From time to time, International Higher Education Consulting Blog will post thought provoking pieces to challenge readers and to encourage comment and professional dialogue.
Mariana Padilla, a long-time New Mexico educator and close confidant of Governor Michelle Lujan Grisham, has been named the state’s new Public Education Secretary.
Padilla has served as the Director of the New Mexico Children’s Cabinet since the start of the Lujan Grisham administration. Before that, she served as the congresswoman Lujan Grisham’s state director for six years.
She replaces Arsenio Romero, who served as secretary for 18 months before resigning in August when he was named a finalist for the presidency of New Mexico State University.
A native of Albuqueruque’s South Valley, Padilla began her career as an elementary school teacher in Albuquerque Public Schools. She later earned dual master’s degrees in community and regional planning and water resources from the University of New Mexico.
“I am incredibly honored to be appointed by Gov. Lujan Grisham to lead the New Mexico Public Education Department,” Padilla said in a press release. “My career has been focused on serving the communities and families of our state. I am committed to working collaboratively with students, families, educators, and community partners to achieve the outcomes we all want to see. As a parent of grade school students, I share the sense of urgency to deliver for our kids.”
In the latest development on Julie Su’s contentious nomination for secretary of the Department of Labor (DOL), Sen. Joe Manchin (D-WV) appears unlikely to vote in favor of Su when her nomination reaches a floor vote in the Senate. Recent news reported that Manchin may be seeking alternative candidates for the position, though no names have been publicly revealed at this time. Given the current 51-49 Democratic majority in the Senate, however, Manchin’s potential opposition means Democrats cannot afford to lose any additional support for the nomination.
The odds may be further stacked against Su as Sens. Krysten Sinema (I-AZ) and Jon Tester (D-MT) have yet to reveal whether they will support Su’s nomination. Although Manchin, Sinema and Tester all caucus with Democrats, they face reelection in 2024 in Republican-leaning states, leaving them in a precarious position as Republicans are seemingly united in opposing Su.
On April 19, the Senate Health, Education, Labor, and Pensions (HELP) Committee held a hearing on Su’s nomination to serve as secretary of labor. During the hearing, Republicans and Democrats discussed Su’s performance as the secretary of California’s Labor and Workforce Development Agency (LWDA), including her involvement in the agency’s handling of COVID-19-related unemployment insurance payments. Republicans on the committee pointed to the widespread COVID-19 unemployment insurance (UI) fraud paid out by the state. On the other side of the aisle, Democrats defended Su’s record. With regard to the UI fraud, Democrats held that California’s statistics were low in comparison to other states.
The hearing also focused on several key labor and employment issues that Su will work on as secretary of labor. On the topic of independent contractor classification, Republicans again focused on Su’s work at the LWDA, calling attention to her role in California’s Assembly Bill 5 law. The law establishes an ABC test, which is a three-pronged test used to classify workers as either employees or independent contractors. Republicans expressed concerns over whether Su would try to implement an ABC test through DOL regulations. In response, Democrats clarified that the ABC test is not included in the DOL’s new proposed rulemaking and that the DOL has previously stated that it lacks the legal authority to implement this test for classifying independent contractors.
Another issue area raised by Republicans was that of joint employment. Although her support for the joint employment standard was questioned, Ranking Member Bill Cassidy (R-LA) testified that Su has committed to not pursue changes to the joint employer standard if she is confirmed. Su said she understands the importance of the franchising model, stating that there is no plan currently on DOL’s fall or upcoming spring regulatory agenda to change the standard. Notably, she did not say whether there would be a rulemaking on the joint employer issue after the upcoming spring regulatory agenda.
A week after the hearing, the Senate HELP Committee voted to move Julie Su’s nomination to serve as secretary of labor out of committee and to a full Senate floor vote. The committee vote was divided along party lines, with 11 Democrats voting in favor and 10 Republicans voting against her nomination, foreshadowing the trouble she may face to be confirmed by the full Senate.
Given Manchin’s likely opposition and the narrowly divided Senate, Su’s confirmation as secretary of labor by the full Senate is still uncertain. If Sinema or Tester also commits to opposing Su, Su will likely not have the votes to be confirmed. As a result, Senate Majority Leader Chuck Schumer (D-NY) has yet to announce when the vote on Su’s nomination will hit the Senate floor.
In the meantime, Su will continue to serve as the acting secretary of labor in the absence of a person confirmed into that position. As a reminder, there are no limitations on the functions of an acting secretary, leaving Su with full authority over the DOL while her nomination is pending. That being said, anticipated rulemakings from DOL, such as the FLSA overtime rule and the independent contractor classification rule, may be held back from publication as a result of Su’s drawn-out nomination process.
CUPA-HR will keep members apprised of any major personnel or regulatory updates from DOL.
The post Julie Su’s Confirmation for DOL Secretary Uncertain as Senator Manchin Seeks Alternative Nominees appeared first on CUPA-HR.
by CUPA-HR | February 28, 2023
On February 28, President Biden announced he would nominate Julie Su to lead the Department of Labor (DOL). Su is currently the deputy secretary of labor under Marty Walsh, who announced he would leave the agency mid-March to head the National Hockey League Players’ Association.
Given previous opposition during her nomination to become deputy secretary, Su will likely face a difficult nomination process. In 2021, Su was confirmed into her current position by a 50-47 vote with no Republican support. Republican criticism during her nomination process arose from her prior role as secretary of the California Labor and Workforce Development Agency. During her tenure in California, the agency handled oversight and enforcement of the state-passed bill, Assembly Bill 5 — a controversial law regarding independent contractor status and misclassification. Additionally, the agency oversaw COVID-19 pandemic relief and dealt with subsequent issues, including unemployment insurance fraud.
President Biden said in his statement “It is my honor to nominate Julie Su to be our country’s next secretary of labor. Julie has spent her life fighting to make sure that everyone has a fair shot, that no community is overlooked and that no worker is left behind. Over several decades, Julie has led the largest state labor department in the nation, cracked down on wage theft, fought to protect trafficked workers, increased the minimum wage, created good-paying, high-quality jobs, and established and enforced workplace safety standards.”
Su is backed by many Democrats and Asian American members of Congress as well as several labor unions, including the Service Employees International Union.
Regardless of how her nomination goes, Su is in line to become the acting secretary of labor once Walsh leaves office. There are no limitations on what an acting secretary can do leading the agency, leaving Su with full authority over the DOL while her nomination is pending. Regulations anticipated in the near future, including the Wage and Hour Division’s overtime exemption rulemaking, will likely not be delayed as a result of this nomination.
CUPA-HR will keep members apprised of major updates at the Department of Labor and any significant guidance or regulations released by the agency.
