If Obama Is ‘Pro-Business,’ He Should Withdraw Wage and Hour Division Nominee Leon Rodriguez

If Department of Labor Secretary Hilda Solis and Solicitor M. Patricia Smith are pushing the limits of radical advocacy, Leon Rodriguez might just be the person to push them further. Rodriguez, for nearly a year the chief of staff at the Justice Department’s Civil Rights Division, is President Obama’s presumptive nominee for administrator of DOL’s Wage and Hour Division. The president announced on December 2 his intent to name him to the long-vacant post. But like the previous (unsuccessful) nominee, Lorelei Boylan, Rodriguez, an experienced prosecutor, has an expressed belief that what counts is equality of result, not equality under the law – even if employers have to pay the toll. If Obama is genuine about his recently stated desire to promote business development, he should find another candidate.

National Legal and Policy Center frequently has pointed out that the Labor Department under Barack Obama might well be called the Department of Organized Labor. Union officials and their hard-Left allies could not have asked for more forceful partisans in their corner. Secretary Hilda Solis, a former four-term Democratic Congresswoman from California (2001-09), received extensive union backing in each of her election campaigns. In 1996, before she entered politics, she stated publicly, “We are all Americans whether you are legalized or not” – music to the ears of organized labor, which has become enthusiastic supporters of amnesty for illegal immigrants. Executive Secretariat Deborah Greenfield is a former AFL-CIO attorney, part of the team that unsuccessfully sued the Bush-era Labor Department to prevent promulgation of tougher Form LM-2 financial reporting rules for labor organizations. Assistant Secretary for Administration and Management T. Michael Kerr previously ran financial operations for the Service Employees International Union under Andrew Stern. Solicitor Trisha Smith, since taking office this past February, has pushed ahead with a plan to escalate pressure on employers potentially in violation of the law. At her previous post as New York State Labor Commissioner she created Wage Watch, a presumably cost-effective program to deputize union members and ACORN-style volunteers to report employer violations. The head of Wage Watch, Lorelei Boylan, was nominated last year for DOL Wage & Hour Administrator, but unlike Ms. Smith, did not survive Senate GOP scrutiny and withdrew her nomination in October 2009.

Leon Rodriguez, now in his late 40s, would fit right in. And should he inherit the job that Boylan almost got, he would be heading up enforcement of the Fair Labor Standards Act, the Family and Medical Leave Act, the Migrant and Seasonal Adjustment Agricultural Worker Protection Act and other federal laws governing private-sector workplace compensation. Like other Obama-era labor radicals, he’s got impressive credentials. Possessing a B.A. in history from Brown University and a law degree from Boston College, he has served in a series of prosecutor positions that include (in chronological order): trial attorney in the Justice Department’s Civil Rights Division; lead prosecutor in the U.S. Attorney’s Office in Pittsburgh; County Attorney for Montgomery County, Maryland; and, since January of this year, chief of staff and deputy assistant attorney general for the U.S. Department of Justice’s Civil Rights Division. He also served on Obama’s post-election transition team. But credentials can’t camouflage some highly questionable radical views.

To understand why calling Rodriguez “radical” is justified, it would be useful to digress for a while and have a close look at his current boss, Thomas Perez, for whom he briefly worked at DOJ’s Civil Rights Division under President Clinton. The division long has provided a career launch for young lawyers possessed of a desire to insert affirmative action (“diversity”) requirements into every nook and cranny of American life. President Obama and Attorney General Eric Holder couldn’t have found a more willing warrior in this endeavor than Perez.

Thomas Perez views law not so much as a function of enforcing existing statutes as of pursuing a broad ideal of social justice. In practical terms, he wants to make extensive use of lawsuits, or threats of them, to equalize conditions between the races. Armed with the budgetary authority to hire more than 100 additional staffers, Perez, now 49, formerly head of the Maryland Department of Labor under Democratic Governor Martin O’Malley, is keen on applying the doctrine of “disparate impact” to civil rights cases. Under this doctrine, mortgage lenders, insurers, local governments, universities and other organizations, even if possessed of no discriminatory intent, ought to be sued if their business or hiring decisions inadvertently work against the collective interests of society’s ‘have-nots.’ Enshrined nearly 40 years ago by the U.S. Supreme Court in Griggs v. Duke Power Company (though mitigated last year in Ricci v. DeStefano), the idea serves as the legal engine for the most egregious affirmative action mandates. It is invariably whites who must bear the principle burden. Perez knows few limits in going after those dreaded “disparities.” He even is considering cracking down on Web sites that allegedly promote discrimination, on grounds that the Internet is a public accommodation as defined by the Americans with Disabilities Act.

It’s crucial to know that Perez was instrumental in bringing forth the Justice Department’s suit against Arizona’s “SB1070” which authorizes law enforcement agents in that state to ask criminal suspects about their nationality. There is nothing unconstitutional about the law – it is explicitly designed to supplement existing federal immigration statutes and enforcement practices – yet U.S. District Judge Susan Bolton issued a preliminary injunction in late July blocking key portions from going into effect. It was not the first such instance of Thomas Perez’s open-borders enthusiasm. A former staffer to the late Sen. Ted Kennedy, D-Mass., Perez, during his tenure as a Montgomery County, Md. councilman, aggressively promoted driver’s licenses and in-state college tuition for illegal immigrants. He’s also vowed to step up enforcement of federal “hate crime” laws, which for some two decades have been fraught with ambiguity and selective indignation, typically against whites. Perez’s public pronouncements constitute a compendium of egalitarian clichés, handkerchief optional. He speaks of illegal immigrants “living in the shadows,” “our Muslim-American brothers and sisters subject to post-9/11 backlash,” “communities of color disproportionately affected by the subprime meltdown,” and “LGBT brothers and sisters…forced to confront discrimination.” Everywhere the man looks, he sees whole classes of helpless, persecuted victims.

Leon Rodriguez believes in Perez’s mission. That’s why he’s gone to work for him twice. Should he move to the Labor Department’s Wage and Hour Division, now with around 1,000 employees, he’s likely to go after private-sector employers, guilty or not, with the same kind of enthusiasm that has marked the tenure of Solicitor Smith. He speaks glowingly of his present employer. Assistant Attorney General Perez, said Rodriguez just before moving to DOJ, “has a very ambitious agenda to restore” the division. “He (Perez) is at his core, about helping those who are not at the table in our society,” added Rodriguez. “He’s about helping the new immigrant, the physically and mentally challenged, helping minorities, helping them capture their part of the American dream.” Working on the assumption that such groups have been unjustly denied their place at the table, one can be sure he will sue employers on virtually any pretext if he thinks they are guilty of exclusion.

Rodriguez is positively obsessive about punishing “hate crimes,” especially in the wake of President Obama signing the Hate Crimes Prevention Act in October 2009. He doesn’t seem to grasp that “hate” is a highly subjective term, vulnerable to political capture. Nor does he understand that prosecuting it necessarily criminalizes thoughts as well as deeds. Undaunted, in a speech before a college audience this April, Rodriguez cited a report by the Southern Poverty Law Center concluding that the number of hate groups in the U.S. rose from 602 to 926 during 2000-08. Unfortunately, the Montgomery, Ala.-based SPLC is a less than stellar source. Over the years it has acquired a well-earned reputation for recklessly tagging organizations as hate groups on the basis of such “crimes” as opposing mass immigration and affirmative action.

Putting aside “hate” and other punishable emotions, Rodriguez has a rather thin background in employment law. In fact, it’s hard to find any background. He has taken on no employment-related cases while serving in any of his capacities as a prosecutor. And while during 2001-07 he worked at the Washington, D.C. firm of Ober, Kaler, Grimes and Shriver, his specialties there, by all accounts, were white-collar crime and health care. A Web search by National Legal and Policy Center could find no record of employment or labor cases involving Rodriguez. The San Francisco-based employment litigation shop of Littler Mendelson, in a December 2 posting on its “Wage & Hour Counsel” blog, concluded the same thing: “Thus far, our research has not uncovered any information regarding Mr. Rodriguez’s experience with the Fair Labor Standards Act, the Family and Medical Leave Act, the Davis-Bacon Act, the Service Contract Act or any other laws enforced by the Wage & Hour Division.”

So why did Obama nominate this guy to run the Labor Department’s Wage & Hour Division? The most plausible explanation is that expertise in labor law and policy, in the president’s mind, counts for far less than a desire to coax costly consent decrees from employers on the basis of accusations of discrimination, however much they stretch the facts. Let’s be blunt: The White House wants a racial-ethnic-gender shakedown artist, someone who can deliver big rewards on behalf of favored Democratic Party constituencies, especially Hispanics. Leon Rodriguez, no doubt at the strong recommendation of Thomas Perez, is the right man for the job.

President Obama, meanwhile, is leaning against the ropes. His party took heavy losses in the November elections, and he’s looking at a Republican majority in the House of Representatives come January. Whether out of principle or opportunism, he suddenly has taken to supporting free enterprise in language that would do Ronald Reagan proud. In a nearly five-hour Wednesday meeting with 20 CEOs from companies such as American Express, General Electric and Google, he stated, “I want to dispel any notion we want to inhibit your success.” For good measure, he remarked: “I believe that the primary engine of America’s economic success is not government. It’s the ingenuity of America’s entrepreneurs; it’s the dynamism of our markets.”

Let us assume, for the sake of argument, that Obama is willing to ‘walk the walk’ and not simply ‘talk the talk.’ Surely he would understand that no business owner likes the idea of being bogged down in a time-consuming and costly lawsuit alleging that he hired or promoted blacks, Hispanics, women or the disabled in insufficient proportions. He would understand that accusations of workplace violations should be based on evidence of an employer willfully breaching a worker’s contractual rights. Leon Rodriguez has little experience with, and likely little interest in, the intricate details of labor law and policy. Worse, his worldview, heavily shaped by ethnic grievance politics, undermines free-enterprise culture. In other words, even by President Obama’s newfound standards, he’s not the right man for the job.


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