The nomination of Acting Secretary of Labor Julie Su to serve as permanent DOL Secretary has been returned to the White House after failing to garner sufficient support to clear a path to confirmation by the full Senate, according to media reports.
President Biden nominated Su last spring to replace former DOL Secretary Marty Walsh, who left the agency in February 2023. Republican members of the Senate Committee on Health, Education, Labor, and Pensions (HELP) have opposed the nomination from the start, in part due to her tenure as head of California’s Labor & Workforce Development Agency (LWDA) and, prior to that, as California Labor Commissioner. In that role, Su implemented use of the controversial “ABC” test for determining whether a worker is an employee or independent contractor.
Republicans on the HELP Committee had sought assurances that Su would not attempt to implement the ABC test at the federal level, and also that the DOL would not undertake rulemaking on a joint employer test. In its last semiannual agenda, the DOL offered no indication that a joint employer rule was in the works. An independent contractor proposed rule, issued in 2022, would return to the multi-factor analysis used by the DOL for decades and which, in some variation or another, has been used by the federal courts throughout that time. The rule has yet to be finalized. An independent contractor final rule was slated for an October 2023 release date, but it is currently pending review at the White House. Under Su, the DOL also issued a proposed rule that would sharply increase the minimum salary floor to satisfy the white-collar exemptions from the Fair Labor Standards Act’s overtime and minimum-wage requirements. The DOL has targeted an April 2024 release of the final rule.
President Joe Biden reportedly plans to renominate the embattled Su for the post.