“The tips were really these workers’ livelihoods,” said Leon Greenberg, a Nevada attorney who represented the table dealers earning the minimum wage. “They gave them the ability to live middle-class lives, and Scalia as counsel defended the company policy that took a portion of them away.”
Scalia, President Trump’s pick for the next labor secretary, has for years worked on behalf of America’s biggest businesses, including Wall Street banks, Walmart and SeaWorld, amassing a legal record that critics say leaves him a poor choice to enforce the nation’s labor laws.
But Scalia, 55, a veteran attorney at the corporate law firm of Gibson, Dunn and Crutcher, is experienced in legal matters and could join the administration as it is looking for additional ways to roll back regulations that Trump officials argue hold back economic growth.
If confirmed, Scalia would replace Alexander Acosta, who last week announced he would resign amid criticism of the plea deal he approved as a Florida prosecutor for billionaire financier Jeffrey Epstein. That plea deal is now under federal investigation. Friday was Acosta’s last day as labor secretary.
“Gene has led a life of great success in the legal and labor field and is highly respected not only as a lawyer but as a lawyer with great experience working with labor and everyone else,” Trump said on Twitter Thursday evening.
If confirmed, Scalia would bring to the Labor Department a prestigious legal and professional pedigree, as well as experience in the department where he served as top lawyer in the George W. Bush administration.
“Gene Scalia is an outstanding lawyer who has vigorously defended the Constitution over a long career in government and private practice,” Sen. Tom Cotton (R-Ark.) said in a statement. “I’m confident he’ll be a champion for working Americans against red tape and burdensome regulation.”
But Scalia’s critics said they feared he would intensify the Trump administration’s efforts to reduce worker protections. Under Trump, the administration has rolled back overtime rules for low-wage workers and opposed raising the minimum wage.
“His appointment is part of a larger pattern where Trump clearly goes after workers,” said David Madland, a labor expert at the Center for American Progress, a center-left think tank.
Others say it is unfair to judge attorneys for advocating the positions of their clients. Michael Lotito, co-chairman of the Workplace Policy Institute at Littler, a prominent employment law firm, said that the positions Scalia argues in court do not necessarily reflect how he will serve in public office.
“That’s the way the system works,” Lotito said. “Just because you’re advocating ‘x’ on behalf of the client doesn’t necessarily mean you agree with ‘x’. ”
Scalia’s nomination as the Labor Department’s top lawyer during the Bush administration in 2001 was criticized by labor groups and Senate Democrats. The AFL-CIO said at the time that Scalia had “extreme views on key worker protections” and was “simply the wrong person for the job.” The Senate did not confirm him, but Bush used a recess appointment to install him in the job.
The Bush administration “frequently responded inadequately” to complaints from low-income workers, leaving them vulnerable to wage theft and other labor violations, according to a 2009 report by the Government Accountability Office. Democrats also accused the Bush Department of Labor of undermining workers’ rights to unionize.
“The Bush [Labor Department] was a travesty,” said Madland. “And [Scalia] was a key player in that department.”
Judith E. Kramer, who served with Scalia in the Office of the Solicitor, disputed that characterization, arguing Scalia aggressively pursued enforcement actions.
“There was absolutely no attempt to backpedal the enforcement of the federal government’s labor laws,” Kramer said.
Since leaving the government, Scalia has helped Wall Street firms push back against financial oversight. In 2010, Scalia won a big case against the Securities and Exchange Commission on behalf of the Business Roundtable, an industry group that represents big businesses.
He also helped win a case against federal regulators on behalf of MetLife, the global insurance firm, arguing it should be exempt from stricter oversight imposed by the Dodd-Frank Act, President Barack Obama’s legislation to rein in Wall Street after the 2008 financial crash.
“Scalia has been one of the captains of the industry efforts to unravel Dodd-Frank and other financial regulations,” said Marcus Stanley, policy director for Americans for Financial Reform, a nonpartisan advocacy group that supports tighter rules. “He’s very good at saying the government overlooked something that my industry thinks is important.”
Scalia has criticized banking regulations put in place under Obama.
“Dodd-Frank is an important statute, but often when the government believes it’s handling a particularly important issue, there can be a tendency to overreach,” Scalia told the Wall Street Journal in 2016.
Scalia represented Walmart against a Maryland law that would have made companies with more than 10,000 workers spend at least 8 percent of their payroll costs on health care, or pay into a state Medicaid fund. Scalia successfully argued that the federal government should tackle rising health-care costs.
Scalia defended SeaWorld after it was sued by federal regulators over the death of one of its trainers, who was killed by an orca whale. Two of the judges who heard the case in 2014 were Brett M. Kavanaugh, who later became a Supreme Court justice; and Merrick Garland, who was nominated by Obama for the Supreme Court but never received a confirmation hearing.
Scalia declined to comment for this story.
Scalia’s foes also pointed to his criticism of a Clinton-era regulation known as the ergonomics rule, which would have protected workers from repetitive-stress injuries. Scalia doubted the science behind ergonomics, saying that “ergonomics is quackery” and based on “unreliable science.”
Patricia Smith, senior counsel for the National Employment Law Project and a former solicitor of labor in the Obama administration, recalled working for New York state during informal public hearings held by the Occupational Safety and Health Administration into the ergonomics rule.
Her boss, then-New York Attorney General Eliot Spitzer, testified at the hearings that the rule would not be a burden on the state’s workers’ compensation program — and would not amount to an admission of liability under New York law. Instead, Spitzer argued that early diagnosis would help workers return to their jobs.
But Scalia, who Smith said was representing the U.S. Chamber of Commerce at the hearings, “was very, very aggressive in wanting to talk to [Spitzer] about the science,” Smith said.
“Attorney General Spitzer refused to answer the question,” Smith said. “He said, ‘You’re talking to the wrong Spitzer. When you’re talking about the science, you need to talk to my brother, the neurosurgeon.’ ”
The regulations were overturned by Congress in 2001.