Legislation has been introduced in both the House and Senate to negate the Department of Labor (DOL) Acting Secretary Julie Su’s ability to lead the agency in the absence of the Senate confirming her nomination.

On September 6, Sen. Bill Cassidy (R-LA), ranking member of the Senate Health, Education, Labor and Pensions (HELP) Committee, introduced S.2727, the Advice and Consent Act, that would put a 210-day cap on how long a Labor Department Secretary can serve in an acting capacity.

House-side, on July 27, Reps. Virginia Foxx (R-NC), chair of the House Education & the Workforce Committee; and Kevin Kiley (R-CA), chair of the committee’s Subcommittee on Workforce Protections, introduced the Department of Labor Succession Act, H.R.4957. The bill would clarify that the Su nomination would be governed by the Federal Vacancies Reform Act, which also caps the amount of time an acting secretary can serve. The Education and the Workforce Committee approved this bill yesterday.

Sen. Cassidy and Reps. Foxx and Kiley also called on President Biden to withdraw the Su nomination.

Su’s nomination, submitted this past April, has been stalled in the U.S. Senate because it appears that there are not the necessary 50 votes to confirm her. The Administration has decided against withdrawing her nomination. Instead, the President has chosen to rely on her acting status. Since then, the agency has issued a flurry of proposed and final regulations that had been on hold awaiting her confirmation. Among them is the long-awaited proposed regulation to update the executive, professional, and administrative (white-collar) exemption to the Fair Labor Standards Act’s (FLSA’s) overtime rules. DOL has also sent to the White House for review a new fiduciary rule proposal. When (if) the White House (through the Office of Information and Regulatory Affairs (OIRA)) approves release of the proposal, DOL will propose the new fiduciary rule.

 Prospects: It is unlikely that either the Senate bill or the House bill can be enacted into law any time soon, if at all. However, it adds fuel to the simmering fire over whether DOL’s proposed regulations will hold up against a court challenge based on the legitimacy of her signing them as acting secretary. Such challenges are likely, from a range of impacted business groups, although the challenges will almost certainly wait until after the regulations in dispute are finalized.

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