Insight from the Top: Former Deputy Solicitor of Labor for National Operations

October 23, 2018

Susan Harthill, who most recently served as one of two career deputies to the solicitor of labor, has joined the firm’s labor and employment practice as a partner in the Washington, DC, office. At the US Department of Labor (DOL), Susan oversaw the provision of legal services under all DOL programs, which collectively administer and enforce more than 160 labor and employment laws.

Having seen the government process behind everything from appellate and amicus litigation to regulatory process to national policy, Susan shares her insights on what employers should be watching and what her experience brings to the firm and its clients.

What function did your previous role serve in the government?

As deputy solicitor for national operations, I oversaw the legal activities performed in

the National Office by lawyers in all 10 program divisions, which included Supreme Court cases, regulations and subregulatory guidance, and national policymaking. By nature of the position, it gave me an incredible depth of knowledge on a wide berth of labor-related topics, including high-profile regulatory actions like the overtime rule and the fiduciary rule, legal enforcement and defensive strategies, and what factors influence the government’s position on all significant labor and employment laws and cases, including Supreme Court cases.

Because my position was the only career position at the DOL with an overview of the work of the entire department, I was often called upon to spot issues and problem solve, taking into account implications for other programs, priorities, and strategies. It quickly became much more than legal issue-spotting, as we worked together to find solutions that worked across all programs and were complementary to the work of the Department of Justice and the Office of the Solicitor General.

What were some of your big takeaways from that role?

In the government, the line between legal advice and policymaking is not always clear. Since the DOL administers and enforces the overwhelming majority of laws and regulations that govern the workplace, being able to walk that line is incredibly important. That sometimes means taking your time to consult with a large contingent of people to see all viewpoints and other times following your gut on fast-moving issues. Since clients want to know what their legal obligations are and a frank assessment of the risks of a particular course of action, they value and expect legal counsel that understands and can adapt to their business needs.

How does that guide your approach to advising clients?

A client may call with a one-off legal question but in reviewing the issue and the particular business, I will be able to see other legal issues or potential vulnerabilities, and offer more well-rounded advice—instead of just answering the discrete or immediate question presented. When I meet with clients who have a particular legal issue (especially those who are new to working with the DOL or the government), I ask for context and learn as much as I can about the problem they are trying to solve, the desired near-term outcome, and their long-term goals. As I had to see around the corners in the DOL, I would take this same approach with potential and current clients at Morgan Lewis—essentially providing a full-service advice and counseling role and being part of a trusted “go-to” team for any resultant litigation.

What are some of the biggest issues employers face right now?

Employers want certainty and uniformity in workplace laws and regulations, to the extent possible, so they can structure their workplaces in ways that make sense for their business needs while complying with the law, adjusting to new ways of working, and doing the right thing for their employees. The challenge is how to do this in the context of a changing regulatory landscape, how to read the tea leaves not just in the next quarter but years in advance—employers need to be nimble to be able to adjust to shifts in workplace law and expectations. Similarly, employers face the challenge of shifting societal and workplace norms and need to find ways to be ahead of the curve, not behind it.

Why did you join Morgan Lewis?

Morgan Lewis is a name well known within the halls of the DOL, with many of the firm’s lawyers having served the government in different capacities. Being able to work with a team that can see all the angles was a natural fit for the way I practice. The firm’s labor and employment practice focuses on the whole of their clients’ business needs. While I believe my value lies in keeping clients out of the courtroom by providing guidance and analysis on a wide variety of issues, I also can advise on litigation, especially appellate litigation strategy. Working at Morgan Lewis allows me to do both seamlessly.