Su, who previously served as the DOL's deputy secretary, first took on the role of acting Labor Secretary after her predecessor Marty Walsh resigned in March. Walsh left the department to serve as executive director of the NHL Players' Association, which represents professional hockey players in the U.S. and Canada.
In their letter, Foxx and Kiley wrote that Su's tenure as secretary of the California Labor & Workforce Development Agency, from 2019 to 2021, "was mired in mismanagement." The lawmakers specifically criticized Su's enforcement of a California law that classified more workers as employees rather than independent contractors.
Su has "continued to pursue a radical agenda against that of the American worker" in her role as acting secretary, the lawmakers wrote, citing the DOL's most recent regulatory agenda, which lists 75 regulations the department plans to propose or finalize this year.
Perhaps the most controversial item on the agenda for the department's Employee Benefits Security Administration is its Retirement Security Rule proposal, commonly known as the fiduciary rule. That rule, proposed by EBSA in October, would amend the five-part test used for determining when a financial professional is considered an investment advice fiduciary under ERISA. Under the changes, one-time advice, such as rollovers or annuity purchases, would be pulled into the definition of a fiduciary if other parts of the test are met.
In late December, many lawmakers and industry groups sent letters to the department asking to extend the proposal's comment period, which ended Jan. 2, or in some cases withdraw the proposal altogether. A letter from Chair Foxx and 10 other Republicans on the House Education and Workforce Committee, sent Dec. 21, requested that the "disastrous proposal" be withdrawn.
Foxx and Kiley also wrote in their letter that the Biden administration is relying on a "questionable interpretation of the law" in allowing Su to continue serving as head of the DOL without Senate confirmation.
In September, the Government Accountability Office maintained that Su can continue serving as acting secretary without Senate confirmation, responding to a July letter from Foxx, questioning Su's time limits for serving in an acting capacity.
The GAO concluded that specific time limitations, usually applicable under the Federal Vacancies Reform Act, do not apply to Su, as the law is superseded by Section 552 of title 29 in the U.S. Code. Section 552 states that Su can continue serving as acting secretary until her successor is appointed.
In their letter, Foxx and Kiley do not acknowledge the GAO's decision, instead pointing to legislation, which passed out of the House committee in September, that would limit Su from serving as acting secretary past 210 days. The full House has yet to vote on the bill.