Demolition at the Labor Department, too | TheHill – The Hill

Even as our democracy reels from its departing commander in chiefs last-gasp onslaught, his labor secretary continues to do damage to the worker protection mission hes duty-bound to honor right up to his last day in office.

The catalog of Eugene ScaliaEugene ScaliaDemolition at the Labor Department, too AFL-CIO calls on Trump to resign or be removed from office 'at once' Biden taps Boston Mayor Marty Walsh for Labor secretary: report MORE and the Trump administrations U.S. Department of Labor (DOL) assaults on workers is long and wont be repeated here, except for one thats inflicted especial pain: the Scalia Labor Departments failure to combat the often lethal workplace hazards COVID-19 presents. On this account alone, history will not judge Scalia charitably.

The latest victim of Scalias wrecking ball is the now-former leader of the departments West Coast legal offices, regional solicitor Janet Herold, with whom co-author Michael Felsen worked withwhile he was the regional solicitor for New England.Among her many duties, she headed a team that litigated a hotly contested pay discrimination case against Silicon Valley heavyweight Oracle Corp. The lawsuit, filed at the end of the Obama administration, followed a massive investigation by the department that found Oracle had underpaid women, Asian and African American workers to the tune of about $400 million.

Scalia showed interest in the case as soon as he took the reins at the DOL in September 2019. In December, shortly before the scheduled trial, Heroldlearned he had communicated with a former colleague who called him at home ensuring that the communication didnt appear in government logs to discuss Oracles interest in a settlement, and that Scalia had tried to settle the case for under $40 million. As the responsible attorney litigating the case on the ground, Herold strenuously objected.

Oracle chose not to settle, and the case went to trial. Before the judge issued his decision, Herold was told Scalia was transferring her from the Solicitors Office in Los Angeles, where she lives with her family, to head up the Occupational Safety and Health Administrations (OSHA) regional office in Chicago. Such an involuntary transfer is highly irregular. And while Herold has extensive experience in litigation and substantive areas, like federal wage and hour and discrimination law, she has no background running an OSHA office. She was surely not the person indispensably needed, or most qualified, to take the Chicago job.

All of which suggested something seriously amiss. This past August Herold filed a whistleblower complaint claiming that Scalia ordered the reassignment in retaliation for her objections to his involvement in the Oracle case and for her vigilance in enforcing worker protection laws.

Shes had the support of Sen. Patty MurrayPatricia (Patty) Lynn MurrayHawley pens op-ed to defend decision to object to electoral votes amid pushback Demolition at the Labor Department, too Hawley, Cruz face rising anger, possible censure MORE (D-Wash.) and Rep. Rosa DeLauroRosa DeLauroDemolition at the Labor Department, too Lawmakers briefed on 'horrifying,' 'chilling' security threats ahead of inauguration Pelosi orders flags at half-staff for Capitol officer who died MORE (D-Conn.), who asked the Labor Departments Acting Inspector General (IG) to investigate whether Scalia politically interfered in the Oracle litigation (Oracles executives are close with the Trump White House) and whether hes unlawfully retaliating against Herold. And the agency tasked with reviewing Herolds whistleblower complaint asked twice that the reassignment be put on hold while it investigates it, signaling its found reasonable grounds to believe Scalia has committed a prohibited personnel practice.

As for the Oracle case itself, despite evidence of significant pay disparities disfavoring women and people of color, the judge ruled in the companys favor. Seasoned career lawyers in the departments national office reviewed the decision. They vigorously recommended appeal since the decision wrongly introduced a heightened standard for proving pay bias and would set a problematic precedent for future enforcement efforts. They prepared and were ready to file a 117-page appeal brief, but on Dec. 3, DOL political appointees who answered to Scalia announced their decision to abandon the appeal. In that moment, a case that is potentially worth hundreds of millions of dollars to Oracle workers who suffered pay discrimination evaporated.

Last month, Herold declined to accept the involuntary transfer. Consequently, her employment was terminated on Jan. 11. This, despite the fact that the independent agency reviewing her whistleblower complaint requested a stay of her reassignment until after Jan. 20, because their inquiry into Scalias alleged prohibited actions is ongoing. The secretary is departing in a few days. Nonetheless, he insisted that Herold lose her job before he goes.

While spokespeople for the Trump DOL protested Scalias innocence, its hard to see his zeal in removing Herold from her post as even remotely justified. She served the department with distinction since 2012. Among his earlier, now-overshadowed abuses of power, Trump pardoned criminals who undermined our security and our democracy. His labor secretary has now fired a devoted public servant for doing her job.

The whistleblower investigation will continue, and maybe the IG will investigate too. If those inquiries reveal that Scalia abused his office in connection with either Oracle, or Herold, or both, he should pay the appropriate price. Regrettably, workers in the United States have already paid too high a price for his allegiance to a president, and to causes other than theirs.

Michael Felsen was the Labor Departments New England regional solicitor from 2010-2018, and is currently a fellow at Justice at Work. Catherine Ruckelshaus is the National Employment Law Projects general counsel.

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Demolition at the Labor Department, too | TheHill - The Hill