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What Employers and HR Should Expect from New Labor Secretary Marty Walsh

Blank Rome’s Jason E. Reisman, partner and co-chair of the firm’s Labor & Employment practice group, spoke to on the recent confirmation of Labor Secretary Marty Walsh, who will be the first union member to head the U.S. Department of Labor in half a century.

Below are article excerpts featuring Jason’s commentary.

Aggressive enforcement

Reisman said that although Walsh was confirmed with strong bipartisan support, employers should expect his reputation as someone who is a consensus-builder to be tested early with so many critical items on his agenda, including the pandemic response and some critical Trump-era regulatory initiatives.

“There is no question, given Walsh’s labor background and leadership of the building trades, that he will be a staunch supporter of workers’ and unions’ rights,” Reisman said. “He will not want to alienate his base of union support, or that of President Biden, especially in light of Biden’s promises to empower workers and unions.”

Employers can expect a return to a Labor Department that resembles and likely surpasses the enforcement efforts of the Obama administration, Reisman said. The DOL will be back on the trail of finding violations and holding employers accountable. 

“The focus will be less on assisting with compliance and educating employers and more on the gotcha game of penalizing employers who — knowingly or unknowingly — are not in compliance with the laws the DOL enforces,” he said.

Enforcing wage-and-hour and overtime violations

Employers should expect a return of the enforcement tools of the past, liquidated damages being almost automatic as penalties in wage-and-hour investigations, Reisman added. “We expect more willfulness assertions by the DOL, which allow a back wage look-back period of three years, rather than two. And, yes, the use of civil money penalties will be used more broadly as a tool than in the last four years.”

Supporting fair workweek and predictive scheduling

Reisman also questioned whether the Labor Department will have the time or resources to make its way far enough down its priority list to fair workweek/predictive scheduling regulations, or what its authority would be in seeking an impact in that realm. 

Still, he added, “Anything that would entail a nationwide policy or regulation such as paid leave could be well-received by many employers if it serves to preempt state and local laws and regulations that have created an almost unmanageable web of compliance pitfalls for multi-state employers.”

To read the full article, please click here.

“What Employers and HR Should Expect from New Labor Secretary Marty Walsh,” by Rick Bell was published in on March 30, 2021.