President Biden’s announcement Tuesday that he would nominate Department of Labor Deputy Labor Secretary Julie Su to replace departing Labor Secretary Mary Walsh is a further sign that the current administration is not looking to Congress to advance its labor agenda anymore but rather will rely on creative interpretations of existing rules as well as new rule makings.
Su was the obvious candidate to replace Walsh given she was already the number two official in the department. The further incentive for the administration lies in the fact that her expertise is more in litigation and aggressive enforcement. She was an aggressive regulatory enforcer for California and she has signaled that she wants to take a similar direction as head of the DOL.
“So to all workers who are toiling in the shadows, to workers who are organizing for power and respect in the workplace – know that we see you, we stand with you and we will fight for you,” Su said after her nomination.
The Protecting the Right to Organize Act, a legislative wish list for unions, had been the centerpiece of the administration of the administration’s labor agenda. It was so radical in its reach that it was always going to be a longshot in Congress but as long as the Democrats held both houses there was at least a glimmer of hope for it. Walsh was a former Boston Mayor and state legislator who was at least familiar with sitting down with the opposition and fencing-sitting allies and trying to hammer out a deal.
With the House now controlled by the Republicans, the Biden administration can no longer plausibly tell its union allies that is standing up for them by promoting legislation that has little hope of getting passed. Walsh may have [IM1] decided he didn’t want to preside over sharply diminished expectations for his union friends.
Su came to prominence as a California civil rights lawyer leading a charge against garment manufacturers that had effectively imprisoned immigrant workers. Her efforts led to the passage of state law mandating that companies be liable for ensuring that contractors pay their workers at least the minimum wage[IM2] .
She was picked by California Governor Gavin Newsom in 2011 to lead in California’s Division of Labor Standards Enforcement and its Labor and Workforce Development Agency. Su won the Golden state’s largest-ever judgment against an employer in state history, assessing almost $12 million in citations against a construction company. “[E]mployers who steal from workers will end up paying for it,” she said at the time.
Su became a hero to the hero the progressive left. In These Times in 2013 was thrilled by her aggressive prosecutions for wage theft, noting she had increased assessments for unpaid minimum wage five-fold and assessments for unpaid overtime seven-fold. It said, “Employment law investigators handcuffing and hauling exploitative bosses into jail is hardly a common occurrence. Yet California may be changing this, thanks largely to the efforts of Julie A. Su.”
She was eventually made the Golden State’s labor secretary in 2019. Her tenure was rocky. An internal study found that the state had awarded nearly $11 billion in fraudulent unemployment claims during the Covid pandemic. “There is no sugarcoating the reality,” Su publicly conceded. “California did not have enough security measures in place.” At the same time more than a million Californians who legitimately qualified for relief had their checks delayed or claims frozen.
She was also a supporter of the state’s disastrous AB5 law, which was intended to force rideshare companies and other so-called gig economy businesses to treat their workers as regular employees rather than short-term workers. Su tweeted in 2019 that the law was “about preserving labor standards that are key to quality jobs in California.” There was little evidence the law wanted by or beneficial to rideshare drivers.
Meanwhile numerous other traditional freelancing jobs were disrupted by the law, forcing state legislators to amend the bill to carve out many professions. Eventually state voters would pass Proposition 22 which exempted rideshare drivers from the law, stripping out the main thing its advocates wanted. The law contributed to California lagging behind the rest of the nation in jobs during the pandemic.
Ironically, Su, should she be confirmed, will have another shot at it. The department already has a rulemaking in the works to go after employers for “worker misclassification” i.e., classifying them as freelancers rather than regular employees for whom the company must pay overtime and unemployment –a national version of AB5, with all the problems of that law.