How Obama’s Department of Labor Plans to “Enforce” Labor Law

By Nathan Mehrens -

Since the start of the Obama Administration we’ve seen a number of problems with the U.S. Department of Labor.  First the Department began rolling back important union financial transparency reforms and then Obama nominated a number of personnel with questionable backgrounds, including the Solicitor Patricia Smith, for high level positions.

Now comes word that the Solicitor of Labor’s office is drafting a shocking “operating plan” that has a number of extreme aspects.

The Solicitor’s office has over 400 attorneys that handle legal issues in enforcing over 180 federal labor laws.  This office is one of the largest legal offices of any government agency.

One would hope that the Solicitor’s office would apply the law in an even handed manner and that there wouldn’t be an agenda beyond enforcement.

However, it appears that isn’t the case.  Americans for Limited Government has obtained a draft copy of the Solicitor’s operating plan.  Here are a few things that the Solicitor’s plan does:

  • “Identify a public affairs liaison in each Regional Office” to “send stronger, clearer messages to the regulated community about DOL’s emphasis on litigation.”
  • “Focus on cases against employers in priority industries.”
  • “Litigate cases that cut across regions.”
  • “Engage in enterprise-wide enforcement,” e.g., send every DOL enforcement agency against a particular employer.
  • “Identify and pursue test cases.”  This will be done to “challenge legal principles that impede worker protections; successful challenges will advance workers’ rights, as will successful enunciation of new interpretations.”
  • “Engage in greater use of injunctive relief.”  The Department believes that fines are not enough.
  • “Focus SOL’s amicus program:  We will focus our amicus program on those cases where DOL’s participation will provide the court with a unique voice on worker protection that the parties are not likely to articulate.”

The document then discusses how to implement these ideas as they affect the various enforcement agencies within the Department.  Some of the ways that the Solicitor’s office intends to implement the above ideas is through the actions such as the following:

  • “identify theories and practices that can be pursued for lowering the rate of cases in which LJFs and the Commission reduce MSHA [Mine Safety Health Administration] penalties.”
  • “Pursue at least one § 108(a)(2) injunctive action in federal district court.”  (Refers to injunctions against coal mines where the Secretary “believes” that the operator has a pattern of violation of safety standards.)
  • “Imposing shorter deadlines for implementing remedial measures in conciliation agreements and consent decrees.”
  • “Deter [employers] through shaming.”

Apparently the Department and the Solicitor in particular do not believe that merely following the law is the right thing to do.  They are now running down the path of berating employers, using tools other than the law to achieve their agenda.  This is an unfortunate abuse of power that should be thoroughly exposed.  Since when is it proper for the top legal officer of a federal agency to help that agency’s efforts to “shame” an employer?  The Department and the Solicitor should turn away from these tactics and get back to enforcing the law in an even handed manner.

One other bit of sneaky reorganization is also exposed by the document.  The operating plan when discussing the needs of the Office of the Assistant Secretary for Administration and Management (OSAM) reveals that the Department intends to transfer responsibility for whistleblower investigations from the Occupational Safety and Health Administration (OSHA) to the Office of Labor-Management Standards (OLMS).

The document states that OSAM will, “Plan and begin to execute a comprehensive transfer during FY-2012 of delegated Secretarial authority for certain whistleblower investigations from OSHA to OLMS.”  The estimated date of completion is June 30, 2011.

As it is the Obama Administration has severely cut funding and staff for OLMS, in an effort to keep the heat off of union financial mismanagement.  Now, with even greater responsibilities the ability of OLMS to conduct its core mission of investigating embezzlements will be further hindered.  As of April 1, 2010 OSHA had 80 investigators that handle whistleblower investigations.  There are less than 100 OLMS investigators.  Transferring even part of the responsibility over whistleblower investigations without a corresponding transfer of the funding will result in a much lower number of investigators devoted to uncovering union misdeeds.

Clearly the Obama Administration is favoring investigation and harassment of employers while doing everything it can to move resources from the one office that keeps tabs on union corruption.

Nathan Mehrens is General Counsel at Americans for Limited Government.

Further Information:

OSHA FY 2011 Budget Request Justifications

General Accounting Office report on whistleblowers

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