Trump’s New Labor Pick Eugene Scalia Will Be a Catastrophe For Workers Rights

Heidi Shierholz, Lynn Rhinehart, Celine McNicholas

Scalia has spent his career defending corporations and fighting worker protections. (Photo by Astrid Riecken/Getty Images)

Work­ing women and men need and deserve a Sec­re­tary of Laborsome­body who will look out for their inter­ests, pro­tect them from unscrupu­lous employ­ers, set strong health and safe­ty stan­dards, and safe­guard their retire­ment security.

Unfor­tu­nate­ly, cor­po­rate lawyer Eugene Scalia, the man named by Pres­i­dent Trump to be the next Sec­re­tary of Labor, is not that person.

Scalia, a grad­u­ate of the Uni­ver­si­ty of Chica­go Law School, is a part­ner at the Wash­ing­ton, D.C.-based law firm Gib­son, Dunn & Crutch­er, where he spe­cial­izes in labor and employ­ment law and admin­is­tra­tive law. He is an active par­tic­i­pant in the activ­i­ties of the Fed­er­al­ist Soci­ety — a right-wing legal group. Scalia was nom­i­nat­ed in 2001 by Pres­i­dent George W. Bush to be Solic­i­tor of Labor, but his nom­i­na­tion was blocked because of oppo­si­tion over his extreme views against work­er health and safe­ty pro­tec­tions. Bush cir­cum­vent­ed the Sen­ate and installed Scalia as Solic­i­tor through a recess appoint­ment. Scalia returned to his law firm at the begin­ning of 2003.

Scalia has built his career rep­re­sent­ing cor­po­ra­tions, finan­cial insti­tu­tions, and oth­er busi­ness orga­ni­za­tions — and fight­ing work­er pro­tec­tions like health and safe­ty reg­u­la­tions, retire­ment secu­ri­ty, and col­lec­tive bar­gain­ing rights. Scalia’s rep­u­ta­tion as the go-to lawyer for cor­po­ra­tions want­i­ng to avoid work­er and con­sumer pro­tec­tions is so noto­ri­ous that a head­line in a Bloomberg Busi­ness­week pro­file on Scalia read, Suing the Gov­ern­ment? Call Scalia.” Here are just a few exam­ples of cas­es where Scalia, on behalf of cor­po­ra­tions and trade asso­ci­a­tions, has attacked work­er and con­sumer protections:

Work­er Health and Safety

Scalia led the fight on behalf of the U.S. Cham­ber of Com­merce against reg­u­la­tions to pro­tect work­ers from injuries caused by unsafe work­place design — known as ergonom­ics rules. Accord­ing to Labor Depart­ment experts, the rules would have pre­vent­ed 600,000 injuries a year. Scalia ridiculed the exten­sive sci­ence under­ly­ing the rules as junk sci­ence par excel­lence” and quack­ery,” and sug­gest­ed that unions sup­port­ed the rules as a ploy to increase mem­ber­ship. The rules were adopt­ed by the Labor Depart­ment in 2000 but were over­turned by a Repub­li­can Con­gress after Bush was elect­ed pres­i­dent in 2000.

Fight­ing ergonom­ic pro­tec­tions is where Scalia made his mark, but his attacks on work­er health and safe­ty pro­tec­tions did not stop there. On behalf of Unit­ed Par­cel Ser­vice (UPS), Scalia opposed rules that would have required employ­ers, and not indi­vid­ual work­ers, to pay for pro­tec­tive equip­ment that was need­ed to keep them safe on the job. And he rep­re­sent­ed Sea­World when it unsuc­cess­ful­ly tried to fight off an Occu­pa­tion­al Safe­ty and Health Admin­is­tra­tion (OSHA) cita­tion and fine for fail­ing to pro­tect Dawn Brancheau, a train­er at Sea­World who was killed on the job by a killer whale.

Retire­ment Security

Eugene Scalia led the legal work attack­ing the Depart­ment of Labor’s fidu­cia­ry rule, which safe­guard­ed work­ers’ retire­ment secu­ri­ty by ensur­ing that invest­ment advis­ers are act­ing in the best inter­est of work­ers and do not have a con­flict of inter­est. The rule would have out­lawed com­mon prac­tices such as finan­cial advis­ers steer­ing retire­ment savers toward invest­ments that pro­vide a good com­mis­sion, but a low­er rate of return. The Depart­ment of Labor esti­mat­ed that con­flict­ed invest­ment advice costs work­ers $17 bil­lion a year. Scalia attacked the rules on behalf of the U.S. Cham­ber of Com­merce and oth­er busi­ness inter­ests, and per­suad­ed a fed­er­al court to throw them out, leav­ing work­ers vul­ner­a­ble once again to con­flict­ed advice on their retire­ment investments.

Health Care

In 2006, the Mary­land leg­is­la­ture passed a law requir­ing large cor­po­ra­tions to spend 8 per­cent of pay­roll on either pro­vid­ing pri­vate health insur­ance or pay­ing into the state’s Med­ic­aid fund. The leg­is­la­ture adopt­ed the law to ensure that large cor­po­ra­tions like Wal­mart were pay­ing their fair share of health care costs for their 16,000 Mary­land employ­ees, after stud­ies in oth­er states showed large num­bers of Wal­mart work­ers on pub­licly fund­ed health care because of the low wages paid by Wal­mart. On behalf of Wal­mart and oth­er busi­ness inter­ests, Scalia got the law struck down.

Col­lec­tive Bar­gain­ing Rights

Scalia rep­re­sent­ed the Boe­ing Cor­po­ra­tion when it was charged by the Nation­al Labor Rela­tions Board with ille­gal­ly trans­fer­ring work to South Car­oli­na from its union­ized plant out­side Seat­tle, Wash­ing­ton in retal­i­a­tion for work­ers at the Wash­ing­ton plant exer­cis­ing their rights under fed­er­al labor law, and specif­i­cal­ly their right to strike. Boe­ing and Repub­li­cans in Con­gress embarked on a scorched-earth cam­paign against the NLRB com­plaint, hold­ing an over­sight hear­ing in South Car­oli­na and sub­poe­naing the NLRB’s Act­ing Gen­er­al Coun­sel to appear, and intro­duc­ing leg­is­la­tion to over­turn the NLRB com­plaint even though it had not yet been adju­di­cat­ed. Boe­ing even­tu­al­ly set­tled the com­plaint in con­nec­tion with col­lec­tive bar­gain­ing nego­ti­a­tions with the Machin­ists Union.

Con­sumer Protections

On behalf of finan­cial insti­tu­tions and cor­po­ra­tions, Scalia has attacked numer­ous pieces of the Dodd-Frank Act, that was enact­ed to pro­tect con­sumers against Wall Street’s pow­er. Scalia chal­lenged the Secu­ri­ties and Exchange Commission’s proxy access” rule that would have giv­en large share­hold­ers a chance to put alter­na­tive can­di­dates for­ward for a corporation’s board of direc­tors through the corporation’s proxy vot­ing mate­ri­als. On behalf of busi­ness groups, Scalia suc­ceed­ed in get­ting the rule over­turned, thus deny­ing unions and oth­er insti­tu­tion­al share­hold­ers access to the proxy sys­tem to inform share­hold­ers about candidates.

Work­ers with Disabilities

Work­ers at Unit­ed Par­cel Ser­vice who were return­ing to work fol­low­ing med­ical leave for on-the-job injuries sued UPS, alleg­ing that the com­pa­ny had ille­gal­ly failed to pro­vide rea­son­able accom­mo­da­tions for their dis­abil­i­ties. Work­ers suc­cess­ful­ly won cer­ti­fi­ca­tion of a nation­al class of sim­i­lar­ly sit­u­at­ed work­ers to pur­sue their claims, but Scalia, on behalf of UPS, got the class cer­ti­fi­ca­tion reversed on appeal.

Wage Secu­ri­ty

Deal­ers in a Las Vegas casi­no sued their employ­er after the employ­er insti­tut­ed a new rule requir­ing the deal­ers to share their tips with their super­vi­sors. Scalia got the law­suit thrown out, argu­ing that the deal­ers did not have a right to sue for their wages — that their only rem­e­dy was through the state com­mis­sion­er of labor.

Defend­ing Cor­po­ra­tions Against Sex­u­al Harass­ment Charges

Scalia rep­re­sent­ed the giant bank HSBC when it was sued for retal­i­at­ing against an employ­ee who report­ed sex­u­al harass­ment of some of his co-work­ers by a man­ag­er. Accord­ing to pub­lished reports, Scalia’s ques­tion­ing of one of the sex­u­al harass­ment vic­tims was so aggres­sive that it brought the vic­tim to tears.

Work­ing peo­ple do not need a dereg­u­la­to­ry wreck­ing ball as Sec­re­tary of Labor. They need some­body who will stand up for strong work­er pro­tec­tion rules and aggres­sive enforce­ment of them. Unfor­tu­nate­ly, the Trump admin­is­tra­tion seems deter­mined to push through its dereg­u­la­to­ry agen­da, tear­ing down work­er and con­sumer pro­tec­tions at the behest of large cor­po­ra­tions. For­mer Sec­re­tary of Labor Alex Acos­ta report­ed­ly lost favor with the Trump White House because he moved too slow­ly on revers­ing work­er pro­tec­tions issued dur­ing the Oba­ma Admin­is­tra­tion. Giv­en his his­to­ry of attack­ing work­er and con­sumer pro­tec­tions at the behest of big busi­ness, there is plen­ty of rea­son to wor­ry that Eugene Scalia will dri­ve the dereg­u­la­to­ry train, to the detri­ment of work­ing women and men.

Scalia will have a con­fir­ma­tion hear­ing when the Sen­ate returns in Sep­tem­ber. It is essen­tial that Sen­a­tors press Scalia for his views on the role of gov­ern­ment reg­u­la­tion — and the role of the Depart­ment of Labor — in pro­tect­ing work­ing women and men. Sen­a­tors should ask him to iden­ti­fy work­er pro­tec­tions that he would pro­mote, and whether there are cas­es he has been involved in on behalf of work­ing peo­ple, not cor­po­ra­tions. Sen­a­tors should dis­cour­age Scalia from fur­ther weak­en­ing work­er pro­tec­tions adopt­ed dur­ing the Oba­ma admin­is­tra­tion. These rules were adopt­ed after exten­sive pub­lic input and are sup­port­ed by com­pre­hen­sive evi­dence demon­strat­ing their val­ue and impor­tance to work­ing peo­ple. They should not be weak­ened or over­turned sim­ply because anti-reg­u­la­to­ry ide­o­logues want it.

At the end of the day, Scalia’s answers to these ques­tions are unlike­ly to per­suade skep­tics that he is the right man for the job, because words at a hear­ing can­not over­come a long career of attack­ing work­er pro­tec­tions on behalf of cor­po­ra­tions. But Scalia should be required to state on the record what his inten­tions are as Sec­re­tary of Labor and what he plans to do to pro­tect work­ing peo­ple, and, if con­firmed, he must be held accountable.

This sto­ry was first post­ed at the Eco­nom­ic Pol­i­cy Insti­tute.

Hei­di Shier­holz, Lynn Rhine­hart and Celine McNi­cholas work at the Eco­nom­ic Pol­i­cy Institute.
Subscribe and Save 66%

Less than $1.67 an issue