Should US employers still be rejecting candidates or firing employees for using marijuana? Maybe not, US Secretary of Labor Alexander Acosta suggested in comments to Congress this week, according to Politico’s Morning Shift:
Acosta said Tuesday that employers should rethink the practice of drug testing every job applicant, which he suggested could keep qualified people out of the workforce. Acosta’s remarks came in response to a question from Rep. Earl Blumenauer (D-Ore.) during a House Ways and Means Committee hearing. Blumenauer, who’s from a state that legalized recreational marijuana, said he’s concerned that legal pot shows up “in ways that are disqualifying” on drug tests, and asked Acosta what could be done to “unleash” those workers’ potential.
“There are sometimes valid health and safety reasons why an individual that cannot pass a drug test shouldn’t hold a certain job,” Acosta said. However, he also said some employers “make the assumption that because there’s a negative result on a test they would not be a good employee.”
Acosta was testifying in a hearing on Jobs and Opportunity: Federal Perspectives on the Jobs Gap, part of a series of hearings the committee is holding as it prepares to reauthorize the Temporary Assistance for Needy Families (TANF) program. While the secretary did not say in so many words that employers should stop drug testing their employees, he expressed the opinion that “it’s important to take a step back … and ask, are we aligning our drug policies and our drug testing policies with what’s right for the workforce?”
Blumenauer’s question to Acosta and the secretary’s less-than-categorical answer both reflect the significant degree to which employers are being forced to rethink their drug policies in light of changing attitudes toward cannabis and the growing number of jurisdictions where it has been decriminalized or legalized for either medicinal or recreational uses. Businesses have begun lobbying the Trump administration to issue guidelines on how to navigate the conflict between federal drug laws—under which marijuana is still classified as a Schedule I substance along with heroin, ecstasy, and LSD—and increasingly liberal state laws.
At an event organized by the Jack Kemp Foundation last week, US Secretary of Labor Alexander Acosta expressed support for a speedy overhaul of US employment laws to account for the advent of the gig economy and the changing relationship between workers and employers today, Chris Opfer reported at Bloomberg BNA. The secretary said the government needed to “keep pace with the pace of change in the private sector” and “re-examine the rules that regulate the employer-employee relationships that have an impact on the ability of individuals to work in a modern system.”
Acosta’s concern reflects a growing understanding that the employment laws and regulations written in the 20th century don’t account for the way many people work today and in particular, that some new form of employment classification may be needed to reflect the situation of people like Uber and Lyft drivers, who work as independent contractors but resemble regular employees in many aspects. The rights and obligations of these individuals and the platforms through which they find work are currently a legal gray area, being defined in the courts through litigation rather than by Congress.
That US employment laws need updating to account for today’s very different labor economy is not especially controversial, but what those updates should look like is hotly debated: Labor activists want gig economy workers to enjoy the same protections as traditional employees and progressive gig economy companies want a new social safety net for these workers based on portable benefits, whereas other businesses and lobbying groups want to limit regulation of this emerging economy as much as possible.
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In an op-ed published at the Wall Street Journal on Monday, US Secretary of Labor Alexander Acosta announced that the “fiduciary rule,” a Labor Department regulation introduced by the Obama administration that requires financial advisors to act in their clients’ best interests when advising them about retirement, will go into effect on June 9 without further delay. The department will continue to seek public comment on the rule and how it might be revised, Acosta writes, and is broadly committed to President Donald Trump’s agenda of rolling back Obama-era regulations, but has “found no principled legal basis” under the Administrative Procedure Act to delay the rule any further (It was originally scheduled to go into effect in April, but was delayed 60 days to give the department time to complete a review ordered by Trump in February).
The Labor Department followed up on Monday evening with a series of FAQ explaining how financial institutions and advisors must comply and when: While the rule goes into effect next month, a transition period is provided for, and certain provisions will not become applicable until January 1, 2018. According to the FAQs, that date may change:
The Department is also aware that after the Fiduciary Rule was issued firms have begun to develop new business models and innovative market products. Many of the most promising responses to the Fiduciary Rule, such as brokers’ possible use of “clean shares” in the mutual fund market to mitigate conflicts of interest, are likely to take significantly more time to implement than what the Department envisioned when it set January 1, 2018, as the applicability date for full compliance with all of the exemptions’ conditions. By granting additional time, and perhaps creating a new streamlined exemption based upon the use of clean shares and other innovations for example, it may be possible for firms to create a compliance mechanism that is less costly and more effective than the sorts of interim measures that they might otherwise use.
Despite Acosta’s insistence that the rule still remains subject to revision, Politico hears from lobbyists for the financial services industry that they are disappointed in the department’s decision not to delay it further. Advocates of the rule, meanwhile, are celebrating, Employee Benefit News reports:
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The US Senate on Thursday confirmed Alexander Acosta, the dean of the Florida International University law school who previously served on the National Labor Relations Board and as the head of the Justice Department’s Civil Rights Division, as Secretary of Labor, CBS News reports, finally completing President Donald Trump’s cabinet nearly 100 days into his presidency. Acosta was Trump’s second choice for the position after his first nominee, former fast food CEO Andrew Puzder, withdrew under controversy about labor practices at his company and events in his private life.
During his confirmation hearing before the Senate’s Health, Education, Labor and Pensions Committee last month, Acosta refrained from taking firm positions on the major controversies in labor policy today, but did say he was concerned about the stress the Obama administration’s stalled overtime rule change would put on the economy, opposed to redefining “joint employers” for liability purposes, and generally in favor of letting states set workplace policies rather than the federal government. His past public statements have also given some clues as to his positions on certain issues: For instance, he has spoken in favor of comprehensive immigration reform. Meanwhile, his record at the Justice Department shows that he has no qualms about rigorously enforcing anti-discrimination laws.
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Alexander Acosta, US President Donald Trump’s nominee for Secretary of Labor, sat before the Senate Health, Education, Labor and Pensions Committee on Wednesday for his confirmation hearing, in which he declined to say whether or not he would uphold regulations implemented by the Obama administration, such as the increase in the overtime salary threshold that is currently tied up in court. While Acosta is widely seen as a much more mainstream candidate than Trump’s first choice, fast food executive Andrew Puzder, Democrats on the committee expressed frustration at his refusal to take stronger positions, as well as concerns over his ability to resist political pressure, the Washington Post’s Jonnelle Marte reports:
Sen. Elizabeth Warren (D-Mass.) grew frustrated by Acosta’s general responses to how he would treat some regulations. In one tense exchange, she asked him if he would uphold a rule finalized last year that would require brokers working with retirement savers to put their clients’ interests ahead of their own.
But Acosta would not say whether he supports the regulation, noting that he would comply with Trump’s executive order, which asked the Labor Department to reevaluate the rule and determine if it will limit investors’ options or increase litigation.
Acosta did tip his hand to a degree on some hot-button labor issues: For instance, he said it was unfortunate that the overtime eligibility threshold had not been raised in many years but that doubling it all at once, as the Obama administration’s new rule would do, would “create a stress on the system.”
Also, BuzzFeed reporter Cora Lewis observes, he “emphasized the authority of states in setting workplace policy, including controversial rules that allow some workers to be paid at below the minimum wage,” and also took a stance on the definition of “joint employers,” which former President Barack Obama’s Labor Department expanded last year to include franchisors:
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On Thursday, US President Donald Trump nominated R. Alexander Acosta, the dean of the Florida International University law school who previously served on the National Labor Relations Board and as the head of the Justice Department’s Civil Rights Division, to serve as Secretary of Labor. Trump’s first choice for the job, CKE Restaurants chief executive Andrew Puzder, withdrew his nomination this week. According to the Associated Press, Acosta, who would be the first Hispanic member of Trump’s cabinet, is a much more conventional choice than Puzder and is likely to face much less opposition from labor groups. Politico notes that Acosta’s nomination was welcomed by both union leaders and the business community:
Hal Coxson, of the management-side law firm Ogletree Deakins, told Morning Shift that Acosta would “likely be very supportive of free enterprise, job creation and reducing government regulations that burden job creation.” Dan Yager, president of HR Policy Association, called Acosta “an excellent choice” and said that he will “make sure that the resources of the agency are targeted toward genuine offenses and the kinds of abuses that the laws were enacted to protect against.” …
Labor’s initial reaction seemed downright friendly after the Puzder knife fight. The AFL-CIO’s Richard Trumka said that “unlike Puzder” Acosta “deserves serious consideration.”
Unlike Puzder, who had weighed in publicly on hot-button labor issues like the minimum wage, overtime regulations, and the Affordable Care Act, Acosta’s positions on these issues are less clear, though he is known to hold conservative political views in general and is likely to uphold Republican policy priorities if appointed. As the Wall Street Journal comments in an editorial, Acosta is “less experienced in the most contentious labor issues of the day such as joint-employer and contracting relationships and guest-worker visas.”