Secretary of labor nominee faces questions during Senate confirmation hearing

Washington — Julie Su emphasized her commitment to “finding and expanding the vast areas of common ground between employers and employees” during her April 20 confirmation hearing before the Senate Health, Education, Labor and Pensions Committee.

Nominated to lead the Department of Labor, Su – the daughter of immigrants and small-business owners – faced questions about her tenure as California’s labor secretary, namely a state law defining independent contractors. Also addressed were concerns about her lack of experience in settling labor disputes, in light of an estimated 150 labor contracts expiring this year around the country.

Republicans on the committee attempted to paint Su as a pro-union activist. Nevertheless, the body is expected to advance the acting labor secretary’s nomination to the full Senate on April 26. After that, Su faces a murky path to confirmation.

Moderate senators such as Sens. Joe Manchin (D-WV), Kyrsten Sinema (I-AZ) and Jon Tester (D-MT) have yet to indicate how they’ll vote. Add in the fact that Sen. Dianne Feinstein (D-CA) is out for an undetermined amount of time because of an illness, and it appears at this juncture that Su would need the support of all three senators.

Su was confirmed as deputy labor secretary in a 50-47 party-line vote in July 2021, with three senators not voting.

“As much as I think of Ms. Su and as pleasantly as I regard you, I will disagree with [HELP Committee Chair Bernie Sanders (I-VT)] and say with a straight face that I do not think you should be secretary of labor,” ranking member Sen. Bill Cassidy (R-LA) said. “We need a labor secretary who is fair and unbiased when enforcing the nation’s labor laws.”

Cassidy asked Su about A.B. 5, a California law enacted after a state Supreme Court decision changed the classification of independent contractors. Legislators in the state later passed A.B. 2257 to provide exemptions to A.B. 5, and 59% of the state’s voters approved an exemption for ride-share drivers.

Su said that, for a federal law, Congress would have to change the test for independent contractors, also known as the ABC test. 

However, she was a little more cagey when asked if the Department of Labor might try to use a regulation to change the classification of independent contractors. In response to a question from Sen. Ted Budd (R-NC), she said:

“I think that bona fide independent contractors have a place in our economy and need to be able to operate. I also believe that misclassification, meaning you have someone who should be an employee but is called an independent contractor, maybe they do the exact same job, but they don’t have the [same protections]. That is a problem in our economy that needs to be addressed.”

As part of her recent experience with labor disputes, Su pointed to her teamwork with former Labor Secretary Marty Walsh on the recent negotiations between rail unions and employers. Sen. Tina Smith (D-MN) also shared the news that the International Longshore and Warehouse Union had reached a tentative agreement with the Pacific Maritime Association on key issues, negotiations that Su was part of.

During her opening statement, Su touted DOL’s expansion of compliance assistance for employers and employees. Among those efforts, she said, are supporting employers in the adoption of workplace safety and health programs, helping employers find and fix hazards, and the Mine Safety and Health Administration’s Miner Safety and Health app.

“I believe the Department of Labor should make it as easy as possible for employers to keep workers safe on the job,” Su said. “If confirmed, you can count on me to listen to employers’ views about how best to do that. President Biden asked me to finish the job that Secretary Walsh and I started. If confirmed as secretary of labor, I would work to preserve and expand the American dream for all Americans.”

The president officially nominated Su on March 14, after Walsh stepped down to become the executive director of the National Hockey League Players’ Association.

Before the Senate confirmed her as deputy secretary, Su was California’s labor secretary. She also served as the state’s labor commissioner from 2011 to 2018, and before that worked as a civil rights attorney for 17 years.

“She’s been an excellent deputy secretary of labor for the last two years, and I believe she will make an excellent secretary of labor in the future,” Sanders said. “I hope very much that she’ll be confirmed by the Senate. We need her in her job as soon as possible.

“Let us be honest as we gather this morning. The debate over Ms. Su really has nothing to do with her qualifications. No one can tell us with a straight face that Ms. Su is unqualified for this position. In fact, she’s extremely well-qualified.”