Published on: July 16, 2021
Authors: Gregory Hoff
Ms. Su brings extensive experience as a labor and employment regulator, having previously served as the Secretary of the California Labor and Workforce Development Agency. While serving in that capacity, Su was one of the main architects of California’s controversial AB-5 law that enshrined the ABC test for worker status into law, which significantly restricts the scope of independent contractor status. The California law has since been subject to numerous ad-hoc carveouts, the most notable being the passage of ballot measure Prop 22, which exempted platform company drivers from the law.
With Ms. Su established as the number two at the DOL, and with David Weil’s nomination for Wage and Hour Administrator pending, employers can expect independent contractors to be a significant Department priority for both regulation and enforcement. It is also expected that Su will focus on gender pay discrimination and pay data disclosures. Su’s confirmation was vigorously contested by Senate Republicans, who feared that she will become a “shadow secretary” driving the policy initiatives at the Department.
Meanwhile, former Obama official and DNC CEO Seema Nanda was confirmed as Department of Labor Solicitor by a vote of 53-46. Ms. Nanda previously served as Solicitor during the Obama administration as well as in other roles within the DOL. The Solicitor position operates as the chief legal advisor on DOL regulations, policy, and enforcement, giving Nanda significant influence on the Department’s policy agenda. During her confirmation hearing, Nanda highlighted minimum wage and overtime as key enforcement priorities.
Jocelyn Samuels was confirmed by the Senate to a second term as EEOC Commissioner, by a vote of 52-47. Ms. Samuels has been serving as a Commissioner since last September, and during that time expressed intent to provide further guidance on protections for LGBTQ+ workers on issues left unanswered by the Supreme Court in the landmark Bostock v. Clayton County case.
More to come: David Weil, nominated for Wage and Hour Administrator, will face a Senate confirmation hearing this week. Meanwhile, President Biden’s pair of NLRB Board Member nominees, Gwynne Wilcox and David Prouty, will also have Senate confirmation hearings this week, while the President’s nominee for NLRB General Counsel, Jennifer Abruzzo, will receive a full Senate vote shortly.
Outlook: Stiff Republican opposition to Julie Su as Deputy Labor Secretary significantly slowed the confirmation process for all Biden DOL nominees. Her confirmation, and the subsequent confirmation of Seema Nanda, will get the ball rolling on the rest of President Biden’s key labor policy officials, including Weil, Wilcox, Prouty, and Abruzzo, among others. The continued installation of Biden pro-labor officials throughout the Department of Labor, NLRB, EEOC, and other key agencies should kickstart the administration’s ambitious labor and employment policy agenda. Employers can expect a significant uptick in regulatory action beginning in the fall.