When Department of Labor Solicitor M. Patricia “Trisha” Smith testified at a Senate confirmation hearing more than a year and a half ago, her track record as New York State Commissioner of Labor, and her comments about it, prompted leading Republicans to postpone action for several months. Their fears in hindsight appear well-founded. An article appearing in last Friday’s Wall Street Journal reported that DOL staff, under Smith’s supervision, a couple months earlier had issued a draft “operating plan” to dramatically step up enforcement against private-sector employers likely to have committed unfair labor practices. The details of the now-adopted plan indicate Smith, like her boss, Labor Secretary Hilda Solis, views the department’s relationship with business as necessarily highly adversarial.
“Solicitor” is the third-ranking position in the Labor Department hierarchy behind secretary and deputy secretary. The Office of the Solicitor’s roughly 400 attorneys interpret and enforce the nation’s labor statutes and regulations. At her May 7, 2009 confirmation hearing before the Senate Committee on Health, Education, Labor and Pensions, Patricia Smith (in photo), eventually confirmed by the full Senate the following February, spoke of her philosophy as one of “proactive enforcement balanced with compliance assistance.” She wasn’t kidding about the first part. The December 3 edition of the Wall Street Journal reported that on September 22 the DOL Solicitor’s Office issued a draft operating plan calling for aggressive pressure on recalcitrant employers. The author of the piece, John Fund, reported that a source within the department confirmed the plan’s subsequent adoption.
The enforcement plan, Ms. Smith told Fund in an interview, is a “living document” that will “never be finalized.” This is one way of saying that however coercive the plan may be at a given point in time, it can be made even more coercive in the future. Here are key elements:
“Identify a public affairs liaison in each Regional Office” to “send stronger, clearer messages to the regulated community about DOL’s emphasis on litigation.” These liaisons can’t be expected to be even-handed, as their very job depends on threatening employers with lawsuits. They will give working with (as opposed to against) employers only secondary priority. In addition to lawsuits, the plan gives the Labor Department’s Occupational Safety and Health Administration (OSHA) wider range to “deter [employers] through shaming.” Smith stated she wasn’t sure what that meant. But that’s hardly comforting. Public shaming of individuals and companies ought to strike any reasonable person as an inappropriate exercise of governance.
“Engage in enterprise-wide enforcement.” Smith stated in her interview with the Wall Street Journal that this referred to targeting multiple work sites of the same employer. In other words, where there’s smoke, there’s fire. An employer likely of violating the law at one of its plants is presumptively likely to be violating it at another plant. A department source added that this component would involve agents from the Wage and Hour Division and OSHA showing up at a given workplace as a team.
“Impose shorter deadlines for implementing remedial measures in conciliation agreements and consent decrees.” This is pretty much self-explanatory. The department wants to give employers as little time as possible to fix identified problem areas. Small businesses, almost by definition, will have less ability to comply.
“Engage in greater use of injunctive relief.” The department plans to use court injunctions rather than fines to foster employer compliance with labor law. In this manner, offending employers will be subject to severe court-imposed penalties that go well beyond even stiff fines.
“Identify and pursue test cases.” With 400 lawyers throughout the country, the Solicitor’s Office is positioned to take employers to court in order to stretch the intent of existing federal statutes and to rewrite regulations accordingly.
It wasn’t as if this couldn’t be foreseen. More than once since mid-2009 National Legal and Policy Center has provided evidence of Smith’s zealotry. A lawyer by training, early in her career she worked in Legal Services Corporation-funded programs in Connecticut and Indiana and then served for two decades in the Labor Bureau of the New York Attorney General’s Office. Smith became New York State labor commissioner at the start of 2007. During her first two years in office, she spent much of the time developing a program called Wage Watch, launched almost two years ago. This initiative deputized nonprofit ACORN-style community activists, many of them union members, to monitor private-sector labor practices in order to report wage and hour violations. The head of the program, Lorelei Boylan, herself was President Obama’s nominee to run the U.S. Labor Department’s Wage and Hour Division until she withdrew last October for lack of support.
Patricia Smith’s enforcement operating plan reflects the view of Labor Secretary Hilda Solis that employer-employee conflict resolution is difficult, if not impossible, without government aggressively intervening on behalf of the employee. Thus, the Department of Labor should blur the line separating enforcement and advocacy. A good recent example is a new Labor Department-American Bar Association (ABA) collaboration establishing an attorney-referral data base for aggrieved employees. This initiative, unprecedented for any federal agency, grew out of Vice President Joe Biden’s Middle Class Task Force. Under the program, workers who have filed complaints with the Wage and Hour Division (WHD) will receive a list of names of plaintiffs’ attorneys experienced in handling cases under the Family and Medical Leave Act and the Fair Labor Standards Act.
The American Bar Association justifies the program this way: “In a typical year, the DOL’s WHD receives more than 35,000 employment-related legal complaints. In order to ensure that as many workers as possible have access to legal assistance, [the selected FMLA and FLSA attorneys] will handle requests from workers nationwide.” Labor Secretary Solis endorsed the program at its November 19 White House kickoff ceremony, stating, “Our nation’s workers deserve full and fair compensation, and this administration is committed to ensuring that they receive it.”
Critics of the program say this approach jeopardizes the department’s impartiality. One of them is Paul DeCamp, a partner in the Reston, Va. office of the law firm of Jackson Lewis and a former administrator of the Wage and Hour Division. He stated:
It’s unseemly to have the DOL getting in bed with the plaintiff’s bar. What we really need to decide here is whether the DOL should be acting like a plaintiff’s law firm, with bounty hunters chasing businesses down, or like a government agency, with public officials working to enforce the law. It appears the DOL, under this administration is no longer simply about being pro-worker; it has now become anti-employer as well.
Lawrence Lorber, a litigator in the Washington, D.C. office of the New York-based Proskauer Rose, notes that the burden won’t be distributed evenly among employers. “The larger ones have lawyers,” he said. “For the smaller ones, this definitely puts them at risk.”
The blurring of distinctions between the executive branch of government and political advocacy is one of the defining traits of the Obama administration. The Labor Department’s guilty-until-proven-innocent attitude toward employers should be understood in this context. Secretary Solis’ immediate (Bush-era) predecessor, Elaine Chao, by contrast, prefers working with employers to working them over. “The best way to protect workers is to help employers understand their legal obligations and promote collaborative working relationships between employers and workers on safety and other issues,” she remarked, noting that from 2002 through the end of her tenure, workplace injuries and illnesses dropped by 21 percent.
Private-sector employment and government regulation, by their nature, have an adversarial relationship. But under President Obama and Labor Secretary Solis, the latter has been infused with a strong dose of testosterone. The emphasis is on fomenting rather than resolving conflict. Labor Solicitor Trisha Smith’s enforcement plan to monitor and punish ostensibly offending businesses reflects this operating philosophy all too well.