Government by Executive Order
By John Fund | December 3, 2010
Because President Obama will now have a tough time getting his liberal agenda through a more Republican Congress, many Democrats are urging him to ram it through using the executive branch’s unilateral power.
John Podesta, head of the Center for American Progress, even issued a list of executive orders and rule-makings last month that Mr. Obama can use to “push the country to a better place.” If the Department of Labor is representative, his advice is in sync with moves already under way.
On Sept. 22, Labor’s Office of the Solicitor—which employs 400 attorneys to enforce the nation’s labor laws—issued a draft “operating plan” to dramatically increase pressure on employers. A source inside the department says the plan has been adopted.
Patricia Smith, who heads the solicitor’s office, told me in an interview yesterday that the plan is a “living document” that will “never be finalized.” Whatever its status, it includes the following:
• “Identify a public affairs liaison in each Regional Office” to “send stronger, clearer messages to the regulated community about DOL’s emphasis on litigation.”
One tactic to be employed by the department’s Occupational Safety and Health Administration (OSHA) division will be to “deter [employers] through shaming.” Ms. Smith told me she didn’t know what that means. But whatever it might involve, it doesn’t sound appropriate for an agency charged with carrying out the law in an even-handed fashion.
• “Engage in enterprise-wide enforcement.” Ms. Smith said that means targeting multiple work sites of the same company. A department source says it also is likely to involve enforcement agents from the Wage and Hour Division and from OSHA showing up at the same time. The plan also calls for “Imposing shorter deadlines for implementing remedial measures in conciliation agreements and consent decrees.”
• “Engage in greater use of injunctive relief,” which means using court injunctions rather than fines to enforce compliance. The department plan also wants to “identify and pursue test cases” that could stretch the meaning of the law.
All of this is in stark contrast to the approach of the previous administration. “Laws and regulations at the local, state and federal level are a dizzying array of sometimes conflicting requirements,” Elaine Chao, the secretary of labor from 2001 to 2009, told me. “The best way to protect workers is to help employers understand their legal obligations and promote collaborative working relationships between employers and workers on safety and other issues.”
Ms. Chao points to the fruits of what she claims was a more balanced approach: Workplace injuries and illnesses declined by 21% beginning in 2002, both reaching all-time lows by the end of the Bush administration.
But while the Department of Labor prepares for a hyper-aggressive enforcement strategy against business, it has rolled back Bush-era reforms mandating greater union transparency. Just this week the department rescinded its Form T-1, which required unions to report on strike funds and other accounts under union control.
The Labor Department is also planning to transfer responsibility for whistleblower investigations from OSHA (which currently has 80 investigators on this beat) to the Office of Labor-Management Standards (OLMS), which oversees union financial integrity. But the Obama administration has severely cut funding and staff for OLMS. There are 187 OLMS investigators, down from 223 last year. With additional responsibilities, the office’s ability to investigate embezzlements and union corruption will be further hindered.
This work is important. Since 2001, OLMS investigations have resulted in 972 indictments for various financial misdeeds, with 905 of them resulting in convictions. As a result, $88 million in restitution was made to rank-and-file union members.
Bill Wilson, president of Americans for Limited Government, a government watchdog group that monitors union issues, says Labor’s new approach should trigger oversight hearings by the new GOP House. “But that won’t be enough,” he predicts. “The solicitor’s budget at Labor will have to be kept in check.”