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Know Your Rights
Source: The Nation
Subject: Workplace Justice
Type: Media Coverage

Hilda Solis: Labor’s New Sheriff


1984, on the Wasatch Plateau in southern Utah,
the Wilberg coal mine, a property of Emery Mining, exploded into flames.
Witnesses described plumes of dark gray smoke billowing up into the heavens.
Twenty-seven coal miners were trapped inside. By the following night it was
clear none of them would make it out alive. "If hell existed," the
Salt Lake Tribune reported, "it was down in the Wilberg mine."

Lauriski was Emery’s chief safety officer when Wilberg caught fire, an accident
later attributed to numerous violations at the mine. The owners, it turned out,
had been trying for a one-day production record. Seventeen years after the
disaster, Lauriski became George W. Bush’s first mine safety chief, a perch
from which he halted a dozen new safety regulations initiated under Clinton, advocating
instead a more "collaborative" approach with industry. His successor
was also from private industry; during a stint as a state regulator, his lax
enforcement played a role in another mining disaster, this one at the Quecreek
Mine in Pennsylvania.

for the first time in its history, the Mine Safety and Health Administration
(MSHA), a division of the Department of Labor (DoL), is headed by a union man,
Joe Main. Main began his working life as a teenager in 1967, doing the
precarious work of sinking a coal mine shaft in West Virginia. By 19 he was a mine safety
committeeman, later joining the United Mine Workers’ health and safety
department, where he worked for decades. He was working for the union at the
time of the Wilberg fire and rushed to the scene. He recalls spending four or
five days there during the grueling rescue and recovery operation. "It
took us a year to recover the last miner," he recalls, "and I dealt
with the families a lot during that time. It’s something that’s stayed with me
my whole life." Main was confirmed by the
Senate in late October; six weeks later he launched a major national initiative
to end black lung disease.

the Bush years, the Department of Labor became a cautionary tale about what
happens when foxes are asked to guard the henhouse. But since California
Congresswoman Hilda Solis became labor secretary last winter, she has brought
on board a team of lifelong advocates for working people–some of whom come
from the ranks of organized labor–and has hired hundreds of new investigators
and enforcers.

Obama calls Solis part of his economic team, but the truth is she’s not part of
the daily huddle at the White House with Summers and Geithner and Orszag. She’s
tapped instead as a lead voice in the "jobs, jobs, jobs" choir,
advocating for Obama’s latest stimulus package. She has tiptoed into the realm
of financial regulation, organizing a joint hearing with the Securities and
Exchange Commission on the abysmal performance of target date retirement funds
during the market crash, and she doles out hundreds of millions of dollars in
job training funds, a decent chunk of which she has used to shape policy by
channeling it to green industries. But Solis understands that her real
influence lies in her power to enforce the nation’s labor laws–the primary
mission of the DoL. It’s a role she embraced with relish at her swearing-in,
where she announced with a grin, "To those who have for too long abused
workers, put them in harm’s way, denied them fair pay, let me be clear: there
is a new sheriff in town."

Solis threw her weight around on Capitol Hill when one key deputy, Labor
Solicitor Patricia Smith, faced stiff opposition from business lobbies and the
GOP. One of Smith’s predecessors as labor solicitor–the nation’s top enforcer
of labor laws–was Eugene Scalia, son of the Supreme Court justice. Scalia’s
previous claim to fame was his successful campaign to block an ergonomics
safety standard, using an industry-supported Astroturf group to question
whether repetitive-motion injuries exist at all. As labor solicitor, he invoked
the Taft-Hartley Act against West Coast longshoremen locked out by their employer
(a former client) and made a habit of undermining his own agency, writing a
brief supporting limits on whistleblower protections. After a one-year tour, he
landed on the lush payroll of Gibson Dunn, a leading "union
avoidance" firm, where he now serves as an expert on
"downsizing" when not penning attacks on the Employee Free Choice Act
for the Wall Street Journal.

on the other hand, has spent more than twenty years going to battle on behalf
of vulnerable, low-wage workers, first at the New York State attorney general’s
office and then as the state’s labor commissioner. "She turned it from a
backwater agency to a national model in just three years," says Andrew
Stettner, deputy director of the National Employment Law Project. "In my
career I’ve never seen an agency turned around so quickly." What Smith did
in New York, according to labor officials, community advocates and business
leaders, was to take a targeted approach not just to rogue players but to rogue
industries, such as retail, residential construction and restaurants, where
minimum-wage and safety violations were rampant.

did high-profile investigations and carefully orchestrated surprise
inspections, conducted special outreach to immigrant workers, and used the full
arsenal of penalties, including criminal charges, to send a message to
Deborah Axt, legal director of Make
the Road
a New York City
community organization, recalls Smith doing a sweep of retail outlets in
Bushwick, where investigators uncovered $200,000 in back wages owed at nineteen
businesses on a single commercial strip. According to Axt, Smith was a master at leveraging her limited resources for
maximum impact; her department quickly became a national model for community
partnerships. And she did all this while maintaining warm relations with New York‘s business
community. Kathryn Wylde, president and CEO of the Partnership for New York City, a leading
business association, was so impressed by Smith’s quick response to the tens of
thousands of Wall Street layoffs in late 2008 that she wrote a letter to the
Senate in support of Smith’s nomination.

Senate Republican Mike Enzi put a hold on her nomination for months, Smith was
finally confirmed on February 4.

take OSHA, the Occupational Safety and Health Administration. Bush’s final OSHA
director was Edwin Foulke, a former partner at Jackson Lewis, another large
unionbusting law firm, who was such a fan of voluntary compliance over
enforcement that the New York Times called him an "antiregulatory ideologue."
Shortly after joining OSHA in 2005, he began delivering a PowerPoint lecture,
"Adults Do the Darndest Things," featuring images of workers near
live power lines or on improper scaffolding, which he played for laughs.

under the leadership of David Michaels and his deputy, Jordan Barab, OSHA’s
second-floor conference room features photographs of workers killed on the job.
Staffers meet under the wide grin of Tyler Kahle, in his orange safety vest,
who was crushed by a lift at 19, and the shy gaze of Erin Sperrey, who was
beaten to death at 20 while working the night shift at a Tim Horton’s.
Michaels, an epidemiologist at George Washington University, is a lifelong
expert on occupational health–he helped to found the New York Committee on
Occupational Safety and Health (NYCOSH) in the 1970s–and on industry’s use of
fake science to undermine government regulations, the subject of his 2008 book,
Doubt Is Their Product. In it, he is harshly critical of Bush’s OSHA, writing
that industry "alliances" and other forms of voluntary compliance
"replaced any effort to strengthen weak standards and improve
inspections." He writes witheringly of OSHA’s handling of popcorn lung,
once an extremely rare disease, which exploded in 2000 among workers exposed to
diacetyl, used in buttery flavorings. The lungs of afflicted workers corroded
so quickly, it was as if they had inhaled acid. Only now is OSHA finally
developing a health standard on the safe use of diacetyl.

early March, Michaels presided over a daylong forum called "OSHA
Listens." At that event, industry was well represented, and Michaels gave
prominent spots to speakers from the Chamber of Commerce and the National
Association of Manufacturers, who complained that the department was "trying
to scare employers by touting its enforcement agenda." But it was no
accident that he scheduled them immediately after a panel of grieving women who
broke down as they spoke about their husbands or sons or uncles dying in
factory explosions, burns and falls.

tested activists are scattered throughout the department: Mary Beth Maxwell, a
leader in the fight for labor law reform as head of American Rights at Work,
was brought on as a senior adviser to Solis. Deborah Berkowitz, OSHA’s new
chief of staff, was health and safety director for the United Food and
Commercial Workers. And Main’s deputy for policy at MSHA, Greg Wagner, is a
doctor who spent more than a decade treating miners with respiratory illnesses
at a West Virginia
clinic. "It’s fair to say," says AFL-CIO legislative director Bill
Samuel, "that some of the president’s best appointments have been at the
Department of Labor."

capital may reign at Government Sachs, where the shrunken paychecks of working
people are tithed to subsidize the very Wall Street institutions that forced
the country into recession. But in one forgotten corner of the administration,
over on C Street
and Constitution, at a department whose entire $1.5 billion enforcement budget
couldn’t pay for a single B-2 bomber, Solis has formed a rump group that’s
fighting on the right side of the class war.

and her able deputies have inherited a Department of Labor in tatters. By the
time they arrived in Washington,
health and safety compliance had become all but voluntary, as had minimum wage
and overtime pay. Within two months of taking office, Bush and his labor
secretary, Elaine Chao, had rammed through Congress the repeal of a new
ergonomics regulation that had been a decade in the making. "It was almost
like PATCO [the Professional Air Traffic Controllers Organization] in terms of
its symbolic importance," says NYCOSH director Joel Shufro, referring to
Ronald Reagan’s crushing of the union in 1981. "That sent employers a huge
message." After that, the DoL didn’t issue a single new regulation unless
it was forced to by Congress or the courts. Chao not only imposed new
restrictions on overtime pay; she produced guidance for employers on how to
avoid paying it. She imposed onerous reporting requirements that applied only
to labor unions. And she left behind a layer of like-minded middle managers
who, AFGE Local 12 vice president Eleanor Lauderdale says, have yet to be
replaced. (The new OSHA leadership recently fired a Bush-era dissident manager,
Bob Whitmore, who’d been on administrative leave since 2007 for blowing the
whistle on shoddy industry reporting.)

was eight years of neglect," says Samuel. "These were not people who
believed in many of the statutes they were hired to enforce."

badly depleted enforcement ranks, Solis hired 710 additional enforcement staff,
including 130 at OSHA and 250 for the crucial wage-and-hour division, upping
inspectors by more than a third. Another hundred will come on next year to
staff a crackdown on the misclassification of millions of employees as
"independent contractors"–a dodge to avoid paying taxes and
benefits–a move that has set off enormous buzz on business blogs. Her team
took a plunger to the stagnant regulatory pipeline, moving forward new rules on
coal mine dust, silica, and cranes and derricks. She restored prevailing wages
for agricultural guest workers and is poised to restore reporting rules on
ergonomic injuries. She revoked Chao’s union reporting requirements and
countered with a proposed rule that employers who hire union avoidance firms
must publicly report it, the sort of sunshine that could easily act as a
deterrent. This latter measure hints at the sort of creative tactics being
explored at the DoL, even as prounion legislation is stymied in Congress.

real question, of course, is whether Solis and her dream team can do more than
simply get DoL’s engine humming again. To have a real impact on workers’
rights, the department, despite its still token number of inspectors (it would
take nearly 140 years for OSHA to visit every workplace in America) and
the government’s laborious rulemaking process, will have to tackle daunting
tasks: tens of thousands of unregulated, potentially toxic chemicals; rampant
wage theft; and an epidemic of ergonomic injuries.

wage theft. A recent large-scale study of low-wage workers in Los Angeles, New
York and Chicago, the country’s three largest cities, found that one in four
(some 400,000 workers) is paid less than minimum wage; among those who work
late, 76 percent are stiffed for the extra hours. This is corporate lawbreaking
on a mind-boggling scale. How do a few hundred inspectors tackle that? Or look
at the challenge of genuinely regulating toxic exposures: there are some 80,000
chemicals in use by American industry, which trigger hundreds of thousands of
illnesses each year, yet OSHA has set exposure limits for fewer than 500, most
of which are based on out-of-date science from the 1940s and ’50s. Where to
start? Or ergonomics. Lifting, twisting and repetitive motion stresses are the
leading cause of workplace injuries, forcing a million Americans to lose time
from work each year. Thousands of poultry workers are permanently crippled by
carpal tunnel syndrome, while half of all nurses suffer chronic back pain,
forcing many, at a time of acute nursing shortages, to leave the profession.
And yet when Congress killed OSHA’s ergonomic regulation in 2001, it also
barred OSHA from writing a new one that was similar. How to escape that bind?

so striking about the new team at DoL is, just weeks or months on the job,
they’re already asking these big strategic questions.

MSHA, Main has not only come out swinging on black lung; he’s launched a
big-picture safety campaign he calls Rules to Live By, which involves combing
through the data to identify the top causes of miner deaths. First, Main says, he’ll educate mining companies about the need
to eliminate these risk factors; next will come "increased
enforcement," with special attention to "serious" violations,
which trigger the largest fines. For Main,
there’s a direct correlation between hefty fines and fewer deaths. "We’ll
provide assistance to the mine operators who do need it," he says,
"but never as a replacement to the enforcement tools. There was some
confusion about that in recent years. I’m not confused about that."

before Michaels was confirmed at OSHA, his deputy, Jordan Barab, a widely
respected expert who once ran health and safety for the public sector union
AFSCME, cracked down on Nevada‘s state
program, which had looked the other way as fatal construction accidents surged
on the Las Vegas
strip. Barab also issued the largest fine in the history of the agency by a
factor of four–$87 million against BP Products, for failing to remedy hazards
that led to a massive explosion at a Texas oil refinery, which left fifteen
dead and 170 injured. At "OSHA Listens," Michaels discussed coping
with his tiny enforcement staff by requiring every workplace in America to have
a plan in place to identify its own unique hazards and prevent them. As for
chemical exposure, he told The Nation that "we can’t proceed on the
chemical-by-chemical path" and that he is coordinating with federal
scientific agencies to develop a more ambitious approach. He also said he’d
immediately start issuing ergonomics citations, rule or no rule, using OSHA’s
broad, but extremely underutilized, "general duty clause."

before being confirmed, Smith was credited with sparking the national
enforcement drive against businesses that misclassify employees as contractors
because of her success cracking down on such scofflaws in New York–a brilliant enforcement priority
at a time of budget deficits, with the potential to bring in billions of
dollars in unpaid taxes, unemployment insurance and Social Security payments.
But she’s known especially for her insight that, as Retail union organizer Jeff
Eichler, who worked closely with Smith in New York, says, "to impact an entire
sector had to involve working with groups outside the bureau." She used
labor unions, churches and immigrant groups as her eyes and ears on the ground;
they organized plaintiffs, served as liaisons with state investigators and
translated big enforcement fines into long-term gains for workers by means of
union contracts or sector-wide employer manuals.

fact, it was these efforts to use community groups as a force multiplier that
triggered a furious campaign by business front groups to block her nomination.
Senator Enzi obtained reams of e-mails to produce an alarmist forty-page report
about one small pilot program Smith had launched, Wage Watch, which trained
community members to report wage violations. Conservative groups such as the
Heritage Foundation and Americans for Limited Government piled on, the latter
issuing an alert that if her concept went national, "it could turn tens of
thousands of ‘community organizers’ into raving vigilantes."

at the new DoL, community partnerships are fast becoming standard operating
procedure. Phil Tom, a leader with Chicago‘s
Interfaith Worker Justice, was appointed head of the department’s Office for
Faith Based and Community Initiatives, which until recently was little more
than a feeding trough for politically connected evangelicals. He’s expected to
use the office to engage the religious community on workers’ rights. Likewise,
OSHA is tapping labor and immigration groups to expand its enforcement reach.
The agency is sponsoring a major Spanish-language conference on Latino workers’
rights in April in Texas and joined local
workers’ rights organizations to plan a summit in Nebraska in March on safety violations in

of the DoL’s new investigators are now on board, and they’ll soon be in the
field handing out citations. Severe GAO reports in the past two years on the
failure to enforce at the wage and hour division and the undercounting of
injuries at OSHA will provide political cover as these teams step up
enforcement. But they are still working with antiquated tools. OSHA threw the
book at Wal-Mart last May, several months after a Long
worker was trampled to death on Black Friday–and yet the
maximum fine was $7,000, pocket change to the massive retailer. The Protecting
America’s Workers Act would update those penalties to make them matter,
including criminal culpability for top corporate officials. But the measure
will face fierce resistance from the business community, as evidenced by
Chamber of Commerce testimony at a hearing about the bill in mid-March claiming
that its corporate accountability measures would provoke a "witch
hunt." The Chamber also held a private strategy meeting in January to
marshal forces against OSHA’s proposed ergonomics reporting rule.

department’s new fervor for enforcement will be hobbled at every turn if the
nation’s most disenfranchised workers continue to feel unsafe reporting
nonpayment of wages or workplace hazards. And that means immigration and labor
law reform, the ultimate force multipliers. "In the end, it comes down to
the power of a worker to say to a boss, This job is dangerous. I won’t do
it," says Joel Shufro. While Secretary Solis has sought to shift the
conversation on undocumented workers from border security to exploitation, she
has not yet used her bully pulpit to create a sense of urgency on moving
immigration reform on Capitol Hill. She has also, so far, mostly held her
tongue on the Employee Free Choice Act, which is unlikely to reappear on the
embattled Democrats’ legislative agenda without strong intervention by the

is an open question whether Obama will eventually unleash his feisty labor
secretary to push Congress to upgrade the nation’s moribund worker protections.
But few observers have any doubt that the new team at the Department of Labor
will do all it can with the broken laws and clunky regulatory powers at its
disposal. "They know all the tricks of the trade," says Celeste
Monforton, a veteran of OSHA and MSHA who is now at George
Washington University‘s
School of Public Health. "They know the
Chamber of Commerce is going to come and say, This is going to kill jobs. None
of that will surprise them, and none of that should make them blink."