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PoliticsTrump’s Labor Pick Has Defended Corporations, and One Killer Whale

23:00  20 july  2019
23:00  20 july  2019 Source:   nytimes.com

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In 2010, a killer whale attacked and killed a SeaWorld trainer named Dawn Brancheau. The federal Occupational Safety and Health Administration, a division of the Labor Department, investigated and concluded that SeaWorld either knew or should have known that the whale posed a threat to humans

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Trump’s Labor Pick Has Defended Corporations, and One Killer Whale© Stephen Crowley/The New York Times Eugene Scalia at a Senate hearing in 2001, when he was a nominee for solicitor of the Labor Department.

Eugene Scalia, whom President Trump intends to nominate as labor secretary, is often hired by companies when they are sued by workers, or when they want to push back against new employment laws and regulations.

The U.S. Chamber of Commerce praised him as an “excellent choice,” saying he would be a valuable asset to the department as it finalizes several regulations.

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Trump ’ s Labor Pick Has Defended Corporations , and One Killer Whale . By Noam Scheiber.

within the Department of Labor have since described Scalia as having been "very supportive of enforcement litigation to vindicate the rights of workers, both at the trial and appellate levels."[10] In 2019, The New York " Trump ' s Labor Pick Has Defended Corporations , and One Killer Whale ".

Senators, especially Democrats, are sure to closely study his long career working on behalf of corporate clients, which was interrupted by a brief tenure as the Labor Department’s top lawyer.

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Mr. Scalia, who is the son of the deceased Supreme Court justice Antonin Scalia, is perhaps best known for his opposition to a regulation that would have mandated greater protections for workers at risk of repetitive stress injuries. But he played a role in several other prominent cases, representing the financial industry and companies like UPS and SeaWorld. Here are three important issues he worked on.

Challenging the Fiduciary Rule

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Since Donald Trump entered politics, he has surrounded himself with grifters and figures of gross incompetence. Scalia is part of a smaller cohort: distinguished conservatives who have joined the Administration to advance their own ideological goals.

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The administration estimated that conflicts of interest arising under the old standard cost Americans about $17 billion a year.

Mr. Scalia was part of a team at his law firm Gibson, Dunn & Crutcher that sued to block the rule on behalf of several industry groups, including the Chamber of Commerce and the Financial Services Roundtable. The groups argued that the regulation would harm less-affluent investors because firms would simply stop offering them advice to avoid exposing themselves to liability.

Mr. Scalia called the rule a prime example of “regulatory overreach” in an interview with the author of a newsletter. He said investment advice should be overseen by the Securities and Exchange Commission and state insurance regulators, not the Labor Department.

Mr. Scalia and his team lost in a trial court in early 2017, after which Alex Acosta, the labor secretary Mr. Scalia will replace, said there was no principled legal basis for delaying initial application of the rule and began to partially adopt it. But Mr. Scalia’s team continued the fight before a federal appeals court, which ultimately ruled in their favor the following year. The rule died when the Trump administration declined further legal challenges.

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Helping UPS Defeat a Disability Lawsuit

Mr. Scalia was part of legal teams that defended UPS against claims brought under the Americans with Disabilities Act in two cases during the late 1990s and 2000s. In the first case, UPS employees who could only see with one eye sued the company for refusing to allow them to become drivers, arguing that the company’s policy had discriminated against people who were capable of operating vehicles safely. The federal Equal Employment Opportunity Commission brought the case, but UPS largely prevailed in two separate appeals.

Trump’s Labor Pick Has Defended Corporations, and One Killer Whale© Mathieu Belanger /Reuters Tilikum, a killer whale, during a 2009 show at SeaWorld. Mr. Scalia represented the company in a case stemming from the death of one of its trainers.

In the second case, some UPS employees claimed that the company had refused to let them return to work after they had suffered on-the-job injuries because they were unable to perform all the responsibilities of their previous jobs. The workers argued that the company violated the Americans with Disabilities Act by not providing accommodations that would let them resume work.

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A lower court certified the case as a class action, but Mr. Scalia and his team successfully argued that the court should not have allowed the plaintiffs to bring their claims jointly before first investigating whether each one should be allowed to return to work under the disability law based on their individual circumstances. An appeals court ruled in the company’s favor in 2009.

Peter Blanck, a professor at Syracuse University who has written extensively about the disabilities law, said that class action suits are often critical to allowing individuals to realize their rights under the law. Absent the class certification, the plaintiffs agreed to a settlement with the company.

In these and other lawsuits involving his clients, Mr. Scalia has “consistently sought to narrow A.D.A. protections on a variety of issues, including the definition of disability and class certification” Douglas Kruse and Lisa Schur, two experts on the employment of people with disabilities at Rutgers University, said in an email.

Arguing for SeaWorld Before a Future Supreme Court Justice

In 2010, a killer whale attacked and killed a SeaWorld trainer named Dawn Brancheau. The federal Occupational Safety and Health Administration, a division of the Labor Department, investigated and concluded that SeaWorld either knew or should have known that the whale posed a threat to humans and should have taken steps to protect trainers.

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The government’s argument prevailed before an administrative law judge, and then again in federal court, where Mr. Scalia’s firm represented SeaWorld. When the company appealed to a federal court in Washington, Mr. Scalia argued on its behalf.

Mr. Scalia and his team maintained that Congress had never intended for the safety administration to regulate an occupation like training and performing with killer whales. They further argued that SeaWorld already had adequate safety measures in place, and that the trainers had accepted the risks inherent in their jobs and that it was their responsibility to manage these risks.

David Michaels, the head of the safety administration at the time, said that it was true that the agency did not have much experience on the subject of killer whales, but it had a responsibility to cover the entire American work force. “We researched the question of what’s known about killer whales, we researched this particular killer whale,” Dr. Michaels said, “and we thought we made the right decision” to bring the case.

Except for the question of whether the company had willfully exposed its trainers to danger, the courts largely agreed with the government. The appeals court rejected Mr. Scalia’s arguments in a 2-to-1 decision, and the company did not appeal the case further.

But should a similar case arise if he is confirmed as labor secretary, the argument Mr. Scalia made might have more currency. The lone dissent in his favor was written by Brett Kavanaugh, who was then a judge on the appeals court and is now on the Supreme Court.

Many sports and entertainment activities, from professional football to the circus, pose hazards to those who participate in them, Mr. Kavanaugh wrote in his dissent.

But, he continued, “it is simply not plausible to assert that Congress, when passing the Occupational Safety and Health Act, silently intended to authorize the Department of Labor to eliminate familiar sports and entertainment practices, such as punt returns in the N.F.L., speeding in Nascar, or the whale show at SeaWorld.”

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