The Department of Labor (DOL) is one of the prime venues for President Obama’s attempt to unite governance and community activism. But he’s having an unexpectedly tough time conveying his enthusiasm to the Senate. Nearly four months ago, the Senate Health, Education, Labor and Pensions Committee held a hearing on the confirmation of M. Patricia “Trisha” Smith to become the DOL’s next solicitor, which is the third highest post in the department behind secretary and deputy secretary. Yet the appointment remains up in the air. That’s because Republicans on the committee are concerned Smith may replicate a program she recently initiated as current labor commissioner for the State of New York. Internal memos obtained by GOP committee aides suggest a less than full commitment on her part to enforce the nation’s labor laws in an objective manner.
Early in June, Union Corruption Update reported that President Obama had nominated Trisha Smith and one of her colleagues, Lorelei Boylan, to key DOL posts. Smith since March, in fact, has held the title of solicitor general-designate. As head of the New York State Department of Labor since 2007, Smith, a lawyer with a background in Legal Services Corporation-funded programs, this January initiated a program, “Wage Watch,” run out of Boylan’s Labor Standards Division. The program deputizes unions and allied nonprofit groups for the purpose of monitoring private-sector employer compliance with the law. The agency hires, trains and assigns volunteers to identify wage and hour violations. Supporters say it’s a cost-efficient way to augment official enforcement. “We are enforcing the law as creatively and aggressively as we can, but the government cannot do it alone,” said Smith at her May 7 confirmation hearing.
Critics counter that the Wage Watch program amounts to a license for activists to target employers they don’t like and then pressure them into making major concessions. In the case of nonunion employers, that very easily could mean intimidating companies into recognizing a union as a collective bargaining agent. The alternative could be a lawsuit. The six organizations initially certified as monitors ought to raise a red flag: the Retail, Wholesale and Department Store Union; United Food and Commercial Workers Local 1500; the Chinese Staff and Workers’ Association; the Workplace Project in Long Island; En Centro del Inmigrante in Staten Island; and Make the Road New York. The latter four groups represent immigrants’ rights, three of them on behalf of Hispanics. Wage Watch looks like a wet dream for partisans of expanded union bargaining power and mass immigration. And Smith has made clear she’s both. In May 2007, she announced the creation of a Bureau of Immigrant Workers’ Rights within her agency. The bureau would advance immigrant group welfare rights and coordinate bilingual investigations.
Critics now have what appears to be a smoking gun. Republican staffers on the Senate Labor Committee recently obtained internal agency memos reportedly indicating plans by Smith and Boylan to go beyond program authorization. The most revealing document, dated November 28, 2008, is a letter written by Boylan to colleagues and copied to Smith. The key portion reads: “The one-day session will not turn the enforcers into labor law experts but will assist them in identifying labor law violations and make the referrals of greater value.” The word “enforcers” is troubling. By law, participating groups must operate on a voluntary basis and may not collect financial records from employers. Moreover, while they may make referrals, they have no power to decide whether to conduct an investigation. And state regulators have indicated to these organizations that they must steer clear of apparent conflicts of interest.
Michael Enzi, R-Wyo., ranking Republican on the Senate Labor Committee, believes the November 28 memo reveals coercive intent. In a letter to President Obama, he wrote: “If it was her (Smith’s) intention to mislead the Senate, then I must oppose her nomination. If she unintentionally gave inaccurate statements to the Senate, then I question her ability to manage a large operation, since she does not have a clear understanding of what is taking place in her own department in New York.” That’s about as close to a firm “no” as anyone can get.
Five New York-based trade associations have qualms as well. In a joint letter to Ms. Smith, they maintained that Wage Watch “steps well over the boundaries of even the most constructive collaborations with community groups and advocates.” Group spokesman Scott Wexler, executive director of the Empire State Restaurant and Tavern Association, said he and other business leaders privately met with Smith to air their concerns, but can’t shake off lingering doubts. “We came away with the impression that the department was probably less nefarious than we thought but a bit more than they were letting on,” he said. “I don’t think any of us left that meeting thinking that this still wasn’t a conflict of interest.”
Smith and Boylan’s would-be boss, Labor Secretary Hilda Solis, is pulling out the stops to get the pair approved. In a publicly available letter, Solis called Smith “tough, fair and innovative,” adding, “Throughout her career, she has fostered collaboration among workers, the community and employers who are put at a disadvantage when their competitors refuse to comply with basic employee protections.” If the full Senate approves Smith’s nomination, it surely will do likewise for Boylan. This is a two-for-one package deal.
The ultimate issue – one few in the Senate or House would dare to raise – is mass immigration from the Third World. It is immigrants, especially those here illegally (“undocumented”), who are the most vulnerable to employer exploitation. New York City, where the foreign-born constitute about half the work force, is especially prone to a prevalence of sweatshop conditions. If Patricia Smith and Lorelei Boylan were truly interested in combating worker exploitation, they would be supporting immigration restriction. But if such advocacy succeeded, the pair might well be out of their current jobs. Their rise in profile is a testament to the power of the employer-union-ethnic politician triumvirate that has made real immigration reform next to impossible no matter who occupies the White House.