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Know Your Rights
Source: Occupational Health & Safety
Subject: Workplace Justice
Type: Media Coverage

Enzi Takes Aim at Solicitor Nominee

U.S. Sen. Mike Enzi, R-Wyo. and ranking member on the U.S. Senate, asked President
Obama this week to withdraw M. Patricia Smith’s nomination as solicitor of
Labor, saying her comments about the New York State Department of Labor’s Wage
and Hour Watch Program are not consistent with documents about it from the state
of New York. Enzi’s letter cited "at least four significant inconsistencies
between Ms. Smith’s statements for the record and documents related to the Wage
and Hour Watch Program that have been provided by the State of New York." In his
letter to Obama, Enzi wrote that he has no reason to believe Smith intentionally
misled the Senate; he said he will oppose her if she did and he questions her
ability to lead a large operation if she unintentionally gave inaccurate

Obama chose Smith, who is New York State’s commissioner of labor, on
March 19 and formally nominated her as U.S. Department of Labor solicitor on
April 20. She has not yet been confirmed by the Senate as required. The
solicitor’s office is DOL’s law firm, defending appealed citation cases both in
federal courts and before OSHRC and FMSHRC, the two agencies that decide
contested occupational and mine safety enforcement cases.

Asked what inconsistencies Enzi referred to, Michael Mahaffey, deputy
communications director for Enzi at HELP, provided this answer by email:

"First, Ms. Smith stated that the Wage and Hour Watch program was developed
internally and only then did the New York Department of Labor approach outside
groups. However, two of the pilot groups, the Retail Warehouse and Department
Store Union (RWDSU) along with Make the Road New York, a public interest entity
financed in part by unions, were heavily involved in developing all aspects of
the program. They, along with another public interest group, participated in: a)
deciding participant eligibility, b) drafting program documents, c) creating
training materials and conducting training, d) developing press strategies, etc.
The approximately 3000 pages of documents provided by New York in fact show
little internal government development of the program.

"Second, Ms. Smith characterized Wage and Hour Watch as an educational
program. It does not appear, however, that Ms. Smith’s subordinates, including
the Wage and Hour Administrator nominee, Ms. Lorelie Boylan, or the union
organizers and public interest groups who helped design the program concurred.
For example, documents describe the program as an "enforcers" program, and email
as well as a training document describe participants as community enforcers.
There appears no question that those who created the program considered it

"Third, Ms. Smith stated that the two unions who were selected for the pilot
program were told not to use the program for organizing. Unfortunately, that
direction appeared nowhere in the approximately 3000 pages of material reviewed.
Instead, the documents showed that the unions planned to use the program for
organizing and the State appears to have done nothing about it. For example:

  • The Coordinator of Retail Organizing Projects for RWDSU is prominently
    involved in pushing for and developing the program, and RWDSU organizers
    conducted part of the program training.
  • The United Food and Commercial Workers Local 1500 in their written
    application stated that they plan to use Wage and Hour Watch in "all of our
    Organizing Campaigns."
  • A March 2009 union newsletter states the union will specifically investigate
    "non-union" groceries as part of the program.
  • Signatories for the pilot program agreements for the two unions are union
    organizers as appear to be all those attending the program training and
    receiving state identification cards.
  • The Co-Chairman of the Wage and Hour Watch program is the president of the
  • A number of later applicants to join the program are entities whose sole
    purpose is union organizing -– e.g., the New York State Laborers Organizing Fund
    and the organizer for a Plumber’s Local.
  • The Wage and Hour nominee in an email suggested altering program
    participation requirements specifically to ensure up-state trade unions were
    eligible to join Wage and Hour Watch.

"Fourth, Smith stated in response to multiple inquiries that there were no
plans to expand until after a thorough evaluation of the pilot program. However,
numerous documents (e.g., press releases, speeches, talking points, emails)
actually suggest imminent plans to expand the program to up-state and/or
statewide in virtually every instance — many with June 2009 deadlines. The
State even sent out applications to a number of groups to join Wage and Hour
Watch during May and June — after Ms. Smith testified before the Committee that
there were no plans to expand immediately."

Leo Rosales, a spokesman for the New York State Department of Labor, on Wednesday said the Wage
and Hour Watch program is solely intended to inform the community about labor
laws. Begun as a six-month pilot program in April 2009 with six community groups
participating without compensation, the program has representatives of the
groups going door to door to educate the community about minimum wage and
overtime laws, Rosales said in a phone interview.

"We’ve been trying to get the word out that there are injustices," such as
workers in some cases working 80-hour weeks for $300 in pay, said Rosales. "They
[the community groups] are our eyes and ears in the community, to let us know
what’s happening and alert us to wage and hour violations. We’re trying to do
more with less; the problem is, we have a limited amount of investigators. This
is not deputizing people to be Department of Labor staffers. They can’t go in
and demand [hours worked] records."

Rosales said the program simply formalized relationships with the community
groups that had existed for several years, and no businesses have complained
about it to the department thus far.