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Scalia tightens the reins at the Department of Labor

By WK Editorial Staff

The Secretary of Labor has announced a series of management decisions that will tighten his control over the agency.

On February 21, Secretary of Labor Eugene Scalia announced actions he had taken to establish the Secretary’s authority to review, at his discretion, decisions of the Administrative Review Board (ARB); establish a similar system of discretionary secretarial review over cases pending before, and decisions issued by, the Board of Alien Labor Certification Appeals (BALCA); and reestablished the Department’s Management Review Board, among other administrative actions.

“Two constitutional principles that have guided me since my confirmation are ‘fair notice’ and the duty to ‘take care that the laws be faithfully executed,’” Secretary Scalia said. “Establishing policy for the Department, making sure the Department is well-run, and taking responsibility for its actions are important duties of the Secretary of Labor. Today’s actions enhance the ability that I and future secretaries will have to fulfill those duties.”

According to the agency, Secretary’s Orders are the primary means for formally communicating policies, decisions regarding the distribution and performance of the department’s business, as well as delegations of authority and assignment of responsibilities from the Secretary of Labor. These orders are often issued to ensure the department’s orderly compliance with Executive Orders and statutory functions and responsibilities.

Secretarial Review of Administrative Review Board decisions. The first Secretary’s Order, 01-2020, establishes the Secretary’s authority to review, at his discretion, decisions of the Administrative Review Board.

Right to review ARB decisions. Prior to 1996, the Secretary of Labor directly decided many cases with the assistance of an executive office. In 1996, the Secretary of Labor delegated responsibility to oversee and decide these departmental adjudications to the newly created ARB, which meant that ARB decisions would be the final action of the department. Although ARB decisions are made on behalf of the Secretary, the 1996 delegation did not provide any way for the Secretary to review them in his discretion.

By establishing discretionary secretarial review of ARB decisions, Secretary’s Order 01-2020 provides an additional mechanism by which the Secretary may fulfill his responsibility to oversee and direct the actions of the department. The order contemplates that review will be limited to cases of “exceptional importance.” Similar review procedures are in place at the Departments of Justice, Education, and the Interior.

Board of Alien Labor Certification Appeals. At the same time he signed Secretary’s Order 01-2020, Secretary Scalia also signed a direct final rule and identical notice of proposed rulemaking that amends various departmental regulations to establish a similar system of discretionary secretarial review over cases pending before, and decisions issued by, the Board of Alien Labor Certification Appeals. An identical direct final rule and notice of proposed rulemaking will be published shortly in the Federal Register.

The department created BALCA in 1987 by regulation to streamline and promote uniformity in Administrative Law Judge decisions pertaining to the department’s foreign labor certification programs. When BALCA was established, no mechanism was put in place to allow the Secretary to exercise appropriate oversight of its decisions. The changes to the department’s regulations address this gap.

When will the Secretary issue his own decision? The Secretary’s Order and rule preserve existing processes by which the ARB and BALCA consider and decide cases, while also giving the Secretary discretion to issue his or her own decision in a case where warranted. Both the Secretary’s Order and the rules include new safeguards to ensure fair process for the parties in cases where discretionary review is exercised by the Secretary.

Procedures for appointment to Department appellate boards. Secretary’s Order 02-2020 will rescind Secretary’s Order 05-2018 to streamline the process by which members of the ARB, the Benefits Review Board (BRB) and the Employment Compensation Appeals Board (ECAB) are appointed, reverting to the longstanding process that previously existed for these appointments.

Reestablishing the Management Review Board. Secretary’s Order 03-2020 will reestablish the department’s Management Review Board (MRB), an internal body of agency heads focused on improving the management and administration of the department. The MRB was first established in 2001 as a means of communicating the department’s leadership priorities; implementing administration initiatives; and ensuring that all department agency heads were working together to implement the President’s Management Agenda (PMA) and the Secretary’s strategic goals.

The MRB will be co-chaired by Bryan Slater, the Assistant Secretary for Administration and Management (ASAM), and James Williams, the Chief Financial Officer (CFO). The ASAM and CFO oversee the department’s administrative and financial portfolio, including information technology, human resources, acquisition, and financial and risk management.

The first MRB meeting is scheduled to take place in March 2020.

“Today’s Orders and decisions show the respect for the crucial policy role of the Office of the Secretary and the commitment to maximize every resource that is allocated to the Department,” said Deputy Secretary Patrick Pizzella. “Secretary Scalia has thoughtfully engaged with Department leaders and staff and these decisions offer a clear path forward.”