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What Labor Lawyers Want to Know About Andrew Puzder

National Law Journal—Rebekah Mintzer

Puzder, chief executive officer of CKE Restaurants, is set to appear Feb. 2 in the U.S. Senate Committee on Health, Education, Labor and Pensions. Committee chairman Sen. Lamar Alexander, R-Tennessee, on Monday called Puzder “a respected Tennessee business leader who understands how excessive regulation can destroy jobs.”

President-elect Donald Trump’s transition team confirmed Tuesday that Puzder has submitted financial disclosure forms to the U.S. Office of Government Ethics, the independent agency that helps nominees craft agreements to minimize the potential for conflicts of interest. The ethics office hasn’t yet published Puzder’s disclosure forms, or his ethics pledge.

Senate Democrats are raising doubts about Puzder’s fitness for the job. They convened a panel on Jan. 10 that featured former workers from CKE, parent company of Carl’s Jr. and Hardee’s restaurants, complaining about working conditions and pay. Advocacy groups such as the National Employment Law Project also have criticized Puzder’s stances on labor such as his opposition to minimum wage increases.

Puzder’s nomination seemed to hit a snag over the weekend amid a report, from CNN, that the nominee was considering dropping out of the running. CNN quoted an anonymous source who said Puzder “is not into the pounding he is taking, and the paperwork.”

The Trump transition team, pushing back, pointed to a tweet on Monday from Puzder’s account in which he said he is “looking forward” to his confirmation hearing. Trump’s team cited Senate scheduling issues to explain why the hearing was delayed.

As the vetting process continues, employment lawyers on the labor and management sides are sharing their own observations about what Puzder should disclose to show he is fit, and without conflict, to serve as secretary of the Labor Department.

Puzder is required to submit a 278e form at the government ethics office—revealing assets and sources of income—as part of the process. He and other executive branch nominees must also craft an ethics agreement to mitigate any financial conflicts of interest.

Public disclosure of these documents is required, but the forms have not yet been shared by the ethics office. The office, led by Walter Shaub, did not respond to a request for comment.

Avi Kumin, a partner at Katz, Marshall, & Banks in Washington who represents employees, said Puzder’s record on labor will come from his tenure at CKE Restaurants. Puzder doesn’t have a background in public-sector positions.

‘’I would like to see disclosure of things like worker pay data and worker benefits data,” Kumin said. “Is there a history of overtime or other legal violations at CKE that suggests that his approach to management has been worse on those types of issues as compared to other private-sector executives?”
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“The fact that [Puzder] is the CEO of a major corporation is certainly a start, but has he been a good or bad CEO?” Kumin said. “That’s a relevant question.”

David Lopez, a partner at Outten & Golden in Washington who served as the general counsel to the U.S. Equal Employment Opportunity Commission from 2010 until last month, said fast-food industry safety violations are often subject to investigations from federal labor agencies.

The Labor Department signed an agreement with fast-food chain Subway in July to improve its restaurants’ training and compliance practices after the department found a history of wage-and-hour violations at the company. In October, two owners of Washington-area Johnny Rocket’s restaurants agreed to pay the Labor Department $571,460 in back pay and damages to settle allegations that servers were denied overtime pay and the minimum wage.

“It’s just really important that the American people, through their representatives, be provided the assurance that he is going to fight for them, the working families, and not his industry,” Lopez said. He said he would also like to see Puzder disclose any contributions he or his company have made to organizations that take stances on labor issues, such as raising the minimum wage. Representatives in Congress and voters, Lopez said, “have the right to know.”
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“Fortunately, this isn’t like some of the other nominees or designees for various positions where we know that they’re a billionaire—but beyond that, what do we know?” Suflas said.

Puzder has commented in the news media over the years on many employment-related topics. He wrote in a Forbes op-ed that the Labor Department’s expansion of overtime eligibility to millions of additional workers— a Texas trial judge enjoined the rule—would lead to increased expenses for employers.

Puzder criticized the Obama administration’s joint-employer rules, which he argued in a Wall Street Journal op-ed would “destroy” the fast-food industry business model.

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