Alexander Acosta, Trump’s pick to lead the Department of Labor, was confirmed to the role in a Senate vote on Thursday evening.
The vote was mostly along party lines, with all present Republicans voting in favor. But his confirmation to be Labor Secretary was also helped along by eight Democrats who voted in his favor: Catherine Cortez Masto (NV), Heidi Heitkamp (ND), Joe Manchin (WV), Claire McCaskill (MO), Bob Menendez (NJ), Bill Nelson (FL), Jon Tester (MT), and Mark Warner (VA), as well as Independent Angus King (ME).
Acosta was nominated to the role after the previous nominee, fast food CEO Andy Puzder, withdrew from consideration. Puzder had faced serious criticism over his record as CEO of CKE Restaurants, a chain where employees have complained of being underpaid, sexually harassed, and discriminated against.
While Acosta’s nomination sparked less outrage, his background does raise some concerns given that the Labor Department is the only agency devoted solely to protecting workers’ rights. Acosta was appointed to the National Labor Relations Board (NLRB) by President George W. Bush in the early 2000s, and while there helped issue a decision that went against precedent yet cost 23 low-paid nurses their jobs.
The nurses decided to strike in 1999 over contract changes they feared would erode their benefits. Labor law requires that health care employees give their employers at least 10 days’ notice of a strike to preserve patient health, which they did. But on the day of the strike, they moved the start time back four hours so they could make sure their patients were cared for before temp replacements came in. There was no disruption in care; the temps were all in the building and ready to take over the whole time.
But the clinic still decided to fire them after the strike, claiming they had violated the notification law, and then hired other nurses to replace them. The original nurses won their case before the NLRB in 2000, and the judge at the time ruled that they were protected by a prior case’s precedent that health care workers can extend a strike time so long as it doesn’t go beyond 72 hours. But the clinic appealed, and the case then came before an NLRB with a Republican majority in 2003, including Acosta. That board found against the nurses, costing all of them their jobs.
Acosta even wrote his own concurrence in the decision, arguing that exact timing was necessary so employers could take “steps to provide for continuity of care,” despite the fact that care was never disrupted. The case set a new precedent, making it so that striking health care workers have to be extremely cautious about giving notice.
Acosta also served as assistant attorney general of the Civil Rights Division in the Department of Justice in the early 2000s when it was discovered that Bush staffers illegally hired politically motivated people to the department to work against its core mission. A deputy assistant attorney general was found to have violated the Civil Service Reform Act by considering political and ideological leanings when hiring attorneys to the department.
While Acosta has denied having direct knowledge of what was going on, the department’s inspector general found he failed to “exercise sufficient oversight” over the hiring practices and ensure rules weren’t being violated.
This history raised flags for some Democratic senators. In urging her colleagues to vote against his confirmation on Wednesday, Patty Murray (WA) said, “I have serious concerns, given Mr. Acosta’s professional history, about whether undue political pressure would impact decision-making at the Department. My concerns were only heightened at his nomination hearing, when Mr. Acosta said he would defer to President Trump on the priorities of the Department of Labor.” She added, “We need a Secretary of Labor who will remain committed to core principles of the Department of Labor. Someone who will prioritize the best interests of our workforce, enforces laws that protect workers’ rights, safety and livelihoods, and seeks to expand economic opportunities for workers and families across the country. Unfortunately…Alexander Acosta has failed to show that he will stand up to President Trump and prioritize these principles and help workers get ahead.”
The rest of his background mostly offers up a question mark.
“Alex Acosta is a very traditional, conservative, Federalist Society small-government Republican,” former Acting Secretary of Labor Seth Harris previously told ThinkProgress. Most of his decisions on the NLRB represented traditional Republican stances. He even went against party orthodoxy a few times on discrimination against Muslims and immigrant rights. The latter incensed Trump’s base.
Acosta will now take the helm of an agency with a number of unresolved issues pending. The two biggest relate to overtime compensation and protections for people who seek retirement advice.
President Obama’s Department of Labor issued an update to the rules mandating overtime pay, increasing the number of Americans who would qualify for either extra compensation or shorter work hours by 4.2 million. The fate of that rule is now in question, and while Acosta appears to agree the overtime rules need an update, he cast doubt on what the Obama administration did.
Trump has also delayed implementation of the so-called fiduciary duty rule and ordered the Labor Department to conduct a review with an eye to revising or rescinding it. The rule, issued by Obama’s Labor Department, required all retirement advisers to put their clients’ interests ahead of their own, rather than steer clients into investments that might make them money but not be the smartest choice for the clients themselves.