One of the hallmarks of Barack Obama’s political career has been his view that the worlds of governance and community activism should blend. By encouraging public office holders to work closely with grass-roots organizers and by hiring some of the more experienced organizers (especially those already with a government background) for federal positions, he believes, our nation can realize long-overdue institutional change. If the president’s recent nominations for two key positions with the Department of Labor are any indication, he’s making good on his rhetoric. The nominees, M. Patricia “Trisha” Smith and Lorelei Boylan, are outspoken advocates for organized labor. And they’re not above using Left-leaning community activists to enforce regulations.
Smith and Boylan, each as of this writing awaiting Senate confirmation, are top officials with the New York State Department of Labor. This March, President Obama nominated Smith to be the next Solicitor of Labor, the third-highest ranking official in the department and the person with the final say on all legal matters. The following month he named Boylan as the next administrator of DOL’s Wage and Hour Division. As state officials, they’ve worked in tandem to blur the line demarcating enforcement and advocacy. In that, they would seem ideally suited for their pending federal jobs.
Trisha Smith is commissioner of the New York State Department of Labor, overseeing an agency with a nearly $5 billion annual budget and roughly 4,000 employees. A lawyer by training, she worked in Legal Services Corporation-funded programs in Connecticut and Indiana before coming to New York to work for two decades in the Labor Bureau of the New York Attorney General’s Office. At her May 7 confirmation hearing before the U.S. Senate Committee on Health, Education, Labor and Pensions, she described her philosophy as one of “proactive enforcement balanced with compliance assistance.” On a practical level, that means she’s persuaded employers to attend state training sessions so as to avoid future investigations and possible penalties.
Lorelei Boylan is director of strategic enforcement in the state Labor Department’s Labor Standards Division. A lawyer as well, she’s had extensive experience in the area of workplace enforcement; the White House Press Secretary’s Office describes her background as ranging from “private monitoring for retailers with social accountability initiatives to affirmative litigation and field investigative experience.” Ominously, before assuming her current position, she headed the Bureau of Immigrant Workers’ Rights, a newly-formed division within the State Department of Labor designed to address grievances of employees with limited English proficiency. There is a certain irony here, for it is non-English-speaking immigrants who more than others are subject to employer exploitation.
What’s attracting extra attention is the state DOL’s New York Wage Watch program, which Smith devised for Boylan’s division. The initiative, launched this January, deputizes nonprofit community activists, mostly either members of unions or union-connected groups on the far Left to monitor private-sector employer practices. The state trains volunteers, assigns them geographic territories to patrol, and lines them up with contact persons to whom they can report apparent wage and hour violations. The program gives the state DOL a vastly expanded net of enforcement at modest cost — or so the official story goes.
Obama’s would-be appointees defend the program as a way of addressing an agency labor shortage. The press release announcing the launch put it this way: “We are enforcing the law as creatively and aggressively as we can, but the government cannot do it alone.” Wage Watch, states Smith’s bio, has uncovered about 2,000 misclassified workers and more than $19 million in unreported wages, $1.2 million in unpaid unemployment taxes and penalties, and more than $3 million in back wages to nearly 650 workers.
If approved, Smith and Boylan can be counted on to replicate the New York experience on a national level – that’s a major reason why President Obama tapped them in the first place. But in their zeal to enforce the law, they possess a disturbing confidence in the capacity of unions and their nonprofit adjuncts to conduct official government business in an impartial manner. An ad hoc group of New York business associations fears this kind of program is a stalking-horse for unions aching to go after nonunion employers based on any pretext, especially to launch “corporate campaigns” against nonunion employers. In a press release, the group stated:
To give quasi-enforcement capabilities to certain, seemingly hand-selected constituencies sets a troubling precedent that could spread among the spectrum of state agencies. We wonder how such an effort can create an atmosphere of anything other than vigilantism where every honest employer will have a legitimate concern for the preservation of his or her rights as a taxpaying business owner in the state of New York.
The New York Post likewise opined:
One needn’t have lived in New York very long to understand where that presently will lead: kangaroo-court proceedings against companies that refuse to buckle under activist pressure…No reasonable person objects to state efforts to fairly, fully enforce the law. But empowering interest groups between the state and the citizen can quickly distort the law’s purpose. After all, the organizations the Labor Department has teamed up with are hardly disinterested parties.
The executive branch-community activist partnership also could hamper efforts at identifying and prosecuting union corruption. Union activists and their allies would seem to have every reason to ignore or even cover up instances of fraud, embezzlement or worse. As former U.S. Labor Department official Nathan Paul Mehrens recently observed, “Placing union officials into a position where they are engaged in quasi-law enforcement activities virtually begs irresponsibility at best, and malfeasance at worst.” There are unscrupulous employers, to be sure. But giving labor activists a badge might well prove a cure worse than the disease. A better direction for federal policy would be for Congress to reduce immigration to manageable levels, thus reducing the pool of exploitable workers. But then, the unions might be deprived of future members. (ohsonline.com, 3/20/09; Americans for Limited Government, 5/7/09; other sources).