Kate O'Scannlain, nominee for Labor Department solicitor, testifies at her confirmation hearing Wednesday. Credit: Diego M. Radzinschi / ALM

Kirkland & Ellis partner Kate O'Scannlain, facing questions about workplace sexual harassment at her confirmation hearing Wednesday for a U.S. Labor Department post, vowed to study how the broad use of arbitration clauses in employee contracts can unfairly silence victims.

O'Scannlain, the Trump administration's pick for Labor Department solicitor, the top lawyer at the agency, told members of a U.S. Senate committee: “There is no place for sexual harassment. It is a prevalent issue.”

O'Scannlain was asked about the heightened attention to sexual harassment and whether restrictions on arbitration agreements—which can shield abusers from public scrutiny and prohibit victims from exposing alleged misconduct—could help reduce instances of workplace misconduct.

“I'm not going to commit to policy out of deference to secretary, but I believe it's problematic and the issue needs to be studied,” O'Scannlain said, responding to Sen. Al Franken, D-Minnesota, on the Senate Health, Education, Labor & Pensions committee.

Franken pointed to the case of Gretchen Carlson, the former Fox News anchor who said an arbitration clause she signed with her former employer silenced women who also faced alleged harassment.

O'Scannlain, a Kirkland & Ellis litigation partner since 2011, faced myriad questions at her confirmation hearing. As solicitor, she would oversee more than 500 lawyers and set litigation priorities. The solicitor serves as “the legal enforcement and support arm” of the agency.

One big-ticket, unresolved issue: the future of any rule to boost overtime eligibility.

Republicans and Democrats on the committee stressed the importance of the overtime regulation set by the Obama administration, albeit from different perspectives. The rule, set in 2016 and later challenged by business groups, doubled the threshold for workers in the U.S. eligible for time and a half pay. The Trump administration put the regulations on hold and told judges that the agency would review the rule.

Sen. Patty Murray, D- Washington, called for keeping the Obama-era regulation in place. “You will be responsible for created policies that protect workers' rights and keep families secure,” Murray told O'Scannlain. “I'm concerned that you will not stand up for workers, given the time you spent as a corporate lawyer representing multibillion dollar corporations.”

O'Scannlain identified several areas she wants to tackle, including the gig economy, artificial intelligence, an increase in women in the workplace, harassment and a decline in labor.

At the Labor Department, O'Scannlain would be a central player in the Trump administration's entanglement over immigration, promotion of the American workforce and effort to reduce what White House officials call the “regulatory burden” imposed on small businesses and manufacturers.

The Labor Department, moving to stall the implementation of Obama-era rules to minimize conflicts of interest in the retirement-savings industry, must still grapple with several pending court cases that challenged the regulations. The agency in June rescinded Obama's standard for the determination of when companies are considered “joint employers” under the Fair Labor Standards Act.

 

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