Congressional Democrats have found a useful ally in frustrating President Trump’s labor policy: the Labor Department’s inspector general. The Democrats have been able to get the official internal watchdog for the Labor Department to launch a blanket investigation of how the agency writes its rules and regulations.
Labor Department Inspector General Scott Dahl told key congressional Democrats about the blanket probe in a Jan. 25 letter. In essence, Dahl said he’d just add the Democrats’ latest request for an investigation in with the other ones they had previously asked for and create one big overarching probe for the whole department.
“Prior to receiving your letter … the OIG had identified the need for a broader review of the rulemaking process at DOL,” he said, adding that they were “incorporating” the Democrat’s latest request into that. He said they were also “reviewing the integrity of the rulemaking process in the Occupational Health and Safety Administration.”
A former top Obama Labor Department official who reviewed the letter for the Washington Examiner said the inspector general’s language was unusually broad. “If I was still at the department, I’m sure I’d be having a conversation with Scott saying, ‘Really? You really want to look at all of this?’ Of course, in the end, it is well within his authority,” said the official, who requested anonymity to speak candidly.
The process involves helping staffers for the office of the inspector general review all of the documents involved in formulating the different proposal, including the public comments that were solicited, a lengthy and tedious process that would cut into department officials’ regular duties. A negative report would invite congressional scrutiny.
The inspector general’s office decided to do the review in response to both congressional inquiries and some news reports regarding the administration’s process. The congressional inquiries in effect turned what would otherwise be more routine reviews into a broader, higher priority one.
The Democrats have gotten the probes the old-fashioned way: by asking nicely. Requests from lawmakers, especially committee chairmen, are typically a “priority” for the inspector general, the Obama official said, though the inspector general has the final word on whether to launch an investigation. Both parties’ members request probes, and the party that doesn’t hold the White House is typically making lots of them.
Cabinet-level inspectors general are presidential appointees, but they serve indefinitely once in office. They can be removed by the president, but only for cause. Former President Barack Obama appointed Dahl in 2013.
The Jan. 25 letter was in response to a request from House Education and Labor Committee Chairman Bobby Scott, D-Va., Sen. Elizabeth Warren, D-Wash., and other lawmakers. They had called for an investigation into a proposed DOL rule that would have allowed 16- and 17-year-olds to operate medical patient lifts. The healthcare industry had argued that rules meant to restrict use of traditional forklifts shouldn’t be applied to them, but the Democrats argued that providing them an exemption would endanger minors.
The inspector general had already launched a probe last year in response to Democrats’ requests regarding a proposed rule that would have allowed restaurant owners to claim and redistribute servers’ tips. The restaurant industry had pushed for the rule, arguing that because most tips went to servers, other jobs such as cooks and dishwashers couldn’t be filled. Allowing owners to redistribute tips among all employees would solve the problem. The Trump administration agreed. Democrats alleged it was a ruse to allow owners to keep the tips for themselves. They pointed to a Bloomberg report that alleged the DOL deliberately omitted key statistical data from the proposal as proof that an inquiry was needed.
Scott told the Washington Examiner he was pleased that the squeaky wheel had gotten the grease. “The Department of Labor’s approach to the tip rule and the child labor regulations raised serious questions about the Department of Labor’s rule-making process. The Office of Inspector General’s decision to do a broader review of the department’s entire rule-making process is an important step,” he said.
Ironically, the Trump administration abandoned the tip proposal almost a year ago when it agreed to a budget bill with Democrat-written language that explicitly prohibited it. Nevertheless, the inspector general’s letter revealed that he is still investigating the circumstances that led to the administration suggesting the idea in the first place.
The Labor Department did not respond to a request for comment.
Another Democratic victory came last year after Warren, Sen. Patty Murray, D-Wash., and other lawmakers got the National Labor Relations Board’s Inspector General David P. Berry to investigate Trump appointees’ votes in various key cases. Berry determined that NLRB member William Emanuel, a White House appointee, had a conflict of interest and should have recused himself from a major 2017 case called Hy-Brand. The NLRB’s ruling in Hy-Brand rolled back an Obama-era ruling that expanded the “joint employer” doctrine that vastly increased corporate legal liability by making franchisor companies responsible for workplace violations at their franchisees.
Emanuel has disputed that any conflict existed, noting that none of his old law firm Littler Mendelson’s clients were involved in Hy-Brand. Berry nevertheless decided that because Hy-Brand overturned a 2015 case called Browning-Ferris that Emanuel’s old firm had been involved in, that that tied the two cases together. The remaining board members decided to vacate the Hy-Brand ruling based on the inspector general’s finding. This effectively undermined the Republican members’ efforts to undo “joint employer.” The board has since announced it will try to rewrite the rule altogether.
