On January 8, President Biden officially renominated Julie Sue as Secretary of Labor. Su failed to win the votes needed to confirm her last year, but Senate leadership pulled her nomination from the floor rather than allowing a vote against her. Su is currently serving as acting DOL Secretary.

Su’s nomination was controversial last year and is expected to be just as divisive this year. There appears to be no change in Senators’ positions on her nomination and so unless one or more Senators change their minds, Su’s nomination will face an equally difficult (and possibly failed) road to confirmation this year.

In the meantime, Republicans are challenging the legality of any regulations (or other guidance) she signed during her lengthy stint as acting secretary. There has been legislation introduced to curtail the amount of time a person could serve in an acting capacity. However, a September report by the Government Accountability Office (GAO) found that there is no law preventing Su’s acting secretary status no matter how long it lasts.

DOL has several regulatory projects pending that impact NAIFA members and their clients. They include the worker classification regulation, the fiduciary-only proposed regulation, SECURE 2.0 regulations, and a change to the white-collar exception to federal overtime rules.

 Prospects: Unless there are Senator absences that alter the number of votes needed for confirmation, or there are changes in Senators’ positions on the Su nomination, it appears unlikely that Su can move past her acting Secretary status this year. This will give rise to court challenges to regulations she signs this year. That could add weight to court challenges that are already expected on such regulations as the fiduciary-only proposal.

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