The Government Accountability Office (GAO) is now investigating whether Acting Department of Labor (DOL) Secretary Julie Su has the legal authority to lead the agency. It is becoming increasingly clear that there are not yet the votes to confirm her as DOL Secretary. However, her nomination has not been withdrawn, nor is it scheduled for a Senate vote. Instead, the Administration is saying it has the authority to leave Su in place as Acting Secretary. This is triggering talk of a legal challenge to any actions taken by DOL during what some are calling Su’s illegal time as acting head of the agency.

Two House Education & the Workforce Committee leaders—full committee chair Rep. Virginia Foxx (R-NC) and Subcommittee on Workforce Protections chair Rep. Kevin Kiley (R-CA)—have introduced legislation to make clear that the DOL Secretary would be subject to the Federal Vacancies Reform Act of 1998. That law sets time limits and other restrictions on how top executive branch positions can be filled. Plus, GAO says work is already underway on a Congressional inquiry, also by the Education & Workforce Committee, regarding the allowable time that Su can serve as acting secretary.

Some private sector groups are talking about taking DOL to court to challenge any regulations promulgated by DOL during this period when she is acting Secretary. The Administration says it is confident that Su can legally continue to serve as acting secretary.

Among the potential regulations that could be challenged in court are the fiduciary, worker classification, and white-collar exception to overtime rules. All three are the subject of current regulatory activity, although none is yet the subject of a regulation finalized during the timeframe in dispute. The white-collar exemption from overtime rules is nearing finalization—DOL sent it to the White House for review last month. So, it could be the first regulation to be challenged in court.

Prospects: The opposition to Su seems to be hardening, and most Washington insiders give her little to no chance of being confirmed. That puts DOL regulatory activity at risk. Still, until either the Senate votes to confirm her (or rejects her nomination), or her nomination is withdrawn, or a court challenge upends one or more regulations finalized by the DOL, Su remains in place atop the DOL.

NAIFA Staff Contact: Jayne Fitzgerald – Director – Government Relations, at jfitzgerald@naifa.org.