The Long Fight for Labor

On Feb. 4, a full year into Barack Obama's presidency, conservative influence over the Department of Labor finally loosened. After a grueling nine-and-a-half-month confirmation process, Patricia Smith overcame the Senate hold on her nomination as Labor Department solicitor, the third ranking position within the department. Her victory had been anything but certain: Fierce Republican opposition had already compelled another Obama Labor Department nominee, Lorelei Boylan, to withdraw her nomination as head of the vital Wage and Hour Division.

The slow, grinding process of reforming the department, particularly the Wage and Hour Division, has proved exceptionally difficult, and it isn't over yet. George W. Bush staffed his Department of Labor with rigidly pro-business ideologues who allowed the department's investigative functions to wither. Obama promised to end conservative influence over the department, freeing the career staff to fulfill the agency's core missions.

The president followed through, nominating thoroughly progressive appointees to all the department's central positions -- most notably, Rep. Hilda Solis of California, a notable champion of workers' rights, as secretary. In turn, Solis rejuvenated the department's atrophied enforcement arm, hiring hundreds of new investigators and placing renewed emphasis on the Wage and Hour Division. Responsible for oversight of minimum wage, overtime, and other workplace fairness laws, Wage and Hour had practically ceased operations during the Bush years. But despite these advances, conservatives managed to maintain a stranglehold on the department.

Senate Republicans have placed holds on several pivotal nominees, leaving their roles unfilled, including the head of Wage and Hour and solicitor -- the department's in-house law office, which represents the department in it's often contentious investigative efforts. "These are probably two of the most important positions in terms of enforcing our nation's wage and hour laws," says Catherine Ruckelshaus, legal co-director of the National Employment Law Project, a worker-advocacy group. "We keep trying to expedite the process, but we keep hearing the same thing: just a few more months. There is sort of a stasis right now because the key decision makers aren't in place."

The Republican-instigated delays are particularly unfortunate given the sheer scope of Wage and Hour's responsibilities and the inadequacy of the division's recent efforts. Last March, as Obama selected the department's new administrators, the Government Accountability Office released a damning report enumerating Wage and Hour's inability to properly enforce labor laws. (One GAO investigator reported a case of underage children working with dangerous machinery in a meat-packing plant during school hours; the division failed to investigate.) The enforcement failure resulted in staggering levels of abuse. A September study showed 68 percent of low-wage workers interviewed had experienced a wage-related violation in the previous week.

The complete breakdown of Wage and Hour's capabilities should not be blamed on career staffers. The problem is the division's inability to adequately enforce laws covering tens of millions of low-wage workers with the tools on hand: 732 investigators muzzled by conservative Bush appointees, and no strategic plan. Solis took steps to address these issues, hiring 250 new investigators last year, a one-third increase in the work force that brings the division a mere 77 hands shy of its 1980 peak of 1,059.

But experts insist that hiring increases won't be enough on their own. "It's not just the ratio of investigators to workplaces; it's got to be about changing how the Wage and Hour division undertakes its activities," says David Weil, professor of economics at Boston University School of Management. "A directed approach, instead of just reacting to complaints. Where they choose places to focus their activity because changing [that employer's behavior] is going to have larger impact."

Under both Bush and Clinton, the Department of Labor largely relied on a complaint-based strategy, reacting to complaints as they came in -- a tactic that can disadvantage low-income workers, especially immigrants, who may be hesitant to bring their troubles to a government agency. According to Weil and other experts, Obama's Wage and Hour Division is considering a turn to strategies designed to impact the labor market beyond the specific target of an investigation. (There are precedents: In 1996, Wage and Hour inaugurated the "No Sweat" campaign, tailored specifically to the garment industry, which targeted whole production networks instead of a few contractors at the bottom of the supply chain.)

Unfortunately, reactionary senators seemed intent on stopping such plans. The two Labor Department appointees blocked in the Senate were both known advocates of ambitiously scaled, strategically planned investigations. Both Smith and Boylan are alumni of New York's Department of Labor. The Empire State's agency directed focused investigations of abusive employers; it is considered a model for what the national agency should be doing.

In January of last year, New York's Wage and Hour Watch (WHW) program was organized as a partnership with several worker-advocacy organizations, including a United Food and Commercial Worker local. The partnered organizations were brought in as the department's eyes and ears, giving investigators clear lines of communication with workers on the ground and allowing for broader monitoring than would be possible given the department's limited resources. (Many experts and worker advocates argue that such a system is necessary on the national level.)

These tactics have proved quite effective, but Republican senators and activists characterize them as union-led vigilantism. The right-wing advocacy group Americans for Limited Government specifically attacked the nominees' participation in WHW. "This initiative could very likely be a model used by Smith and Boyland [sic] on a national level," the group's mailer reads. "It could turn tens of thousands of 'community organizers' into raving vigilantes nationwide." The mailer then makes vaguely ominous allusions to ACORN, which Sen. Mike Enzi picked up in his attack against Smith, claiming WHW gave "community-activist groups like ACORN ? vigilante power and credentials ? authorizing their targeting of small nonunion businesses." (ACORN has no involvement with the program.)

As a result of months of vicious Republican attacks, and a seemingly unending blockade against her, Boylan withdrew her nomination in October. No replacement nominee has been announced.

"As far as the more novel enforcement strategies that are being used in, for example, New York, I definitely think they are being strongly considered at the department," says David Madland, director of the Center for American Progress' American Worker Project. "But the [Department of Labor] has very little leadership in enforcement. They are missing key enforcement people, so they can't really adopt new ideas easily."

Now with Smith finally in place as head departmental lawyer, Wage and Hour (and the other divisions) will finally have more punch behind their investigative efforts. But Wage and Hour still lacks a leader, and without a guiding hand, both out-of-practice old-timers and green beginners probably won't be able to coordinate an effective overhaul of enforcement strategy. Senate Democrats could finally break the lingering conservative hold on Labor Department leadership by having Obama appoint a potential nominee while the Senate is recessed. But they need to have a nominee first.

Sooner would be better. "They need to grab the initiative right away and not waste time," says Ruth Milkman, director of the University of California, Los Angeles, Institute of Industrial Relations. "Who knows how long we'll have a Democratic administration and a secretary of labor who is really interested in [helping workers]?"

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