Washington D.C. Employment Law Update : Washington D.C. Employment Lawyer & Attorney : Littler Mendelson Law Firm : Virginia, Tyson's Corner

After serving eight years on the National Labor Relations Board (NLRB or “Board”), Member Peter C. Schaumber (R) has left the agency now that his second term has expired. Notably, for 27 months Schaumber served as one of only two members of the Board, issuing rulings in approximately 600 unfair labor practice cases during that period. The U.S. Supreme Court in New Process Steal v. NLRB  recently invalidated those decisions, holding that the Board must operate with at least three acting members. Of this decision, Schaumber stated: “While the Supreme Court ultimately determined that a three-member quorum is necessary to issue decisions, Chairman Liebman and I set a tone for collegiality and dedication to case processing that I hope will carry forward to future Boards.”

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On Tuesday, the Senate officially confirmed (pdf) the nominations of Mark Hayes and Brian Pearce to be members of the National Labor Relations Board (NLRB). The two were included in a package of more than 60 nominees confirmed by voice vote. President Obama previously gave recess appointments to Pearce and Craig Becker, whose nomination failed to advance in the Senate. Controversial nominee Craig Becker, whose recess appointment expires at the end of 2011, was not among those nominees confirmed today. With the addition of Hayes, the Republican nominee, the current composition of the Board and the duration of the members’ terms are as follows:

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Ronald Meisburg, General Counsel (GC) to the National Labor Relations Board (NLRB), plans to leave the Board eight weeks shy of the end of his term in order to enter private practice. A former management-side lawyer, Meisburg was seated via recess appointment as a Board member in 2004, and as General Counsel in 2006. Meisburg, after the Senate confirmed his nomination in August 2006, was to serve as GC until August 14, 2010. His vacancy will allow President Obama to appoint his own choice to fill this position, which has been held by a Republican since 2001. In March, Obama used the recess appointment process to seat Democrats Craig Becker and Mark Pearce as NLRB members.  Republican nominee Brian Hayes was not similarly seated, and has yet to receive a Senate confirmation. The sole remaining Republican member, Peter Carey Schaumber, will complete his term on August 27, 2010.

Although a significant amount of controversy surrounded Obama’s choice of former union general counsel Becker as an NLRB member, the general counsel pick could be equally contentious, given the enforcement power that accompanies the position. The NLRB traditionally makes changes to labor law through its rulings and the general counsel determines which cases are put before the NLRB. Therefore, which cases the general counsel chooses to pursue are a critical component with regard to what issues the NLRB will have an opportunity to decide. The selection of the person who determines which cases will be considered is likely to be as controversial as the selection of individuals who ultimately will decide those cases. At this point, however, there is no clear front-runner as Meisburg’s replacement. In a letter to NLRB employees, Meisburg announced that Deputy General Counsel John Higgins will take over any new cases presented to the Board.

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On Tuesday, Victoria Lipnic was sworn in as a member of the Equal Employment Opportunity Commission (EEOC), making the five-member Commission complete for the first time in nearly two years. EEOC Chair Jacqueline Berrien and Commissioner Chai Feldblum were sworn in earlier this month, joining current members Stuart Ishimaru and Constance Barker. Lipnic, the Republican nominee to the EEOC, was one of 15 recess appointments President Obama made over the spring legislative recess.

Before her appointment to the EEOC, Lipnic practiced management-side labor and employment law. Prior to entering private practice, Lipnic served as the U.S. Assistant Secretary of Labor for Employment Standards from 2002 until 2009, where she oversaw the Employment Standards Administration (ESA). Lipnic has also worked as Workforce Policy Counsel to the Republican members of the House Committee on Education and Labor, and as labor and employment in-house counsel for the U.S. Postal Service. During the Reagan administration, Lipnic served as a special assistant for business liaison to U.S. Secretary of Commerce Malcolm Baldrige.

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The National Labor Relations Board (NLRB) and the Equal Employment Opportunity Commission (EEOC) moved a step closer to full capacity this week when Craig Becker and Mark Pearce were sworn in as NLRB members, and Jacqueline A. Berrien and Chai Feldblum assumed their positions as Chair and Commissioner, respectively, at the EEOC. These individuals were among the 15 recess appointments made over the recent legislative break.

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Despite increasing opposition, President Obama on Saturday announced his appointment of 15 individuals to various federal agencies, including the National Labor Relations Board (NLRB) and the Equal Employment Opportunity Commission (EEOC). Among those appointed was Craig Becker, the controversial NLRB Democratic nominee. Also given a recess appointment to the NLRB was the other Democratic nominee, Mark Pearce. However, the President did not give a recess appointment to the Republican nominee, Brian Hayes. On Thursday, Republican Senators sent a letter to Obama urging him not to do so. Randel K. Johnson, the U.S. Chamber of Commerce Senior Vice President of Labor, Immigration, and Employee Benefits, said of Becker’s appointment: “The business community should be on red alert for radical changes that could significantly impair the ability of America’s job creators to compete.” Becker has been widely criticized for advocating admittedly “provocative” positions in this academic writings. During a hearing, Becker tried to distance himself from these statements, such as his belief that a new body of representation election rules should be created to limit employer involvement, including the holding of so-called “captive audience” meetings. Many lawmakers and business interests continue to question, however, whether Becker can be impartial as a member of the Board. Becker’s term will now last until the end of 2011, unless the Senate appoints him to a full term.

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In its first Administrator Interpretation Letter, the Wage and Hour Division of the U.S. Department of Labor (DOL) announced on Wednesday that mortgage loan officers do not qualify as bona fide administrative employees under section 13(a)(1) of the Fair Labor Standards Act (FLSA). In reversing its prior stance on the issue, the DOL withdrew two opinion letters issued on September 8, 2006 and February 16, 2001, in which it previously had found that loan officers were exempt administrative employees.  Continue reading at Littler's Wage & Hour Counsel blog.

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It is becoming increasingly likely that controversial National Labor Relations Board (NLRB) nominee Craig Becker will be appointed as a Board member over the upcoming Congressional recess. According to an article in the Atlantic Online, “labor allies of the White House have been given strong indications that such an appointment is highly likely.” Specifically, reports abound that Sen. Tom Harkin (D-IA) has confirmed that President Obama will make the appointment soon. Earlier this month, Labor Secretary Hilda Solis hinted at this possibility during the American Federation of Labor & Congress of Industrial Organization's (AFL-CIO) annual meeting.

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According to a report by the Associated Press, Labor Secretary Hilda Solis hinted during the AFL-CIO annual meeting that President Obama would institute controversial nominee Craig Becker as a member of the National Labor Relations Board (NLRB) by means of a recess appointment, possibly during the Easter recess. On February 9, the Senate failed to pass a cloture motion on his nomination, fueling speculation that Obama would appoint Becker – who currently serves as Associate General Counsel to both the Service Employees International Union (SEIU) and the AFL-CIO – during the President’s Day recess. According to the AP story, Solis told AFL-CIO members that they would be “very pleased” with how the stalled nomination issue would be resolved. The Senate is set to adjourn for the Easter recess from March 29 through April 9.

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Last week, the Senate confirmed the nomination of Cynthia L. Attwood to be a member of the Occupational Safety and Health Review Commission (OSHRC). The OSHRC is the independent federal agency responsible for adjudicating contests of citations or penalties resulting from an Occupational Safety and Health Administration (OSHA) workplace inspection. The agency, which functions as an administrative court, is also charged with establishing procedures for conducting hearings, receiving evidence, and rendering decisions.

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On Tuesday, the Senate rejected advancing the nomination of Craig Becker to serve as a member of the National Labor Relations Board (NLRB). Becker’s proponents failed to garner the 60 votes needed to limit debate over his nomination and allow a confirmation vote to occur. The 52-33 vote took place less than a week after the Senate Health, Education, Labor and Pensions (HELP) Committee approved Becker’s nomination by a party-line 13-10 margin.

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Due to the massive snowstorm that hit the Washington, D.C. area over the weekend, the cloture vote on Craig Becker’s nomination to be a member of the National Labor Relations Board (NLRB) has been rescheduled to Tuesday at 5:00 pm. At least 60 votes are needed to lift the blanket hold Sen. Richard Shelby (R-Ala.) put on his nomination, among others, and effectively limit debate. Unless Becker can garner the requisite 60 votes – made more difficult now that Scott Brown has been sworn in as the Senate’s 41st Republican – it is expected that those opposed to Becker will filibuster to prevent a confirmation vote.

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By a party-line vote of 60-37, the Senate has confirmed the nomination of Patricia Smith to be the U.S. Solicitor of Labor. The Senate Health, Education, Labor and Pensions (HELP) Committee had approved her nomination on October 7, but controversy arose when Sen. Mike Enzi (R-Wyo.) accused Smith of making inconsistent statements during her confirmation hearing in May 2009. At issue was Smith’s testimony regarding the New York Wage Watch program, an initiative based on the Neighborhood Watch program that purportedly exposes businesses that violate wage and hour law. Smith is currently the Commissioner of the New York State Department of Labor (DOL), and unveiled the Wage Watch program last year. During her confirmation hearing, Smith denied that outside groups were involved in creating the program, an assertion that has come under fire. Sen. Enzi, Smith’s most vocal critic, has accused her of being a “trusted ally of organized labor and even allows them to participate heavily in the formulation of her agency's initiatives.” Smith later claimed that she “misspoke” about the timeline of various advocacy group and union involvement in the Wage Watch program. The alleged conflicting testimony threatened to derail Smith’s nomination, but the Senate voted 60-32 to end debate on her nomination on Monday, clearing the way for her confirmation.

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On Thursday, the Senate Committee on Health, Education, Labor and Pensions (HELP) voted 13-10 along party lines in favor of Craig Becker’s nomination to be a member of the National Labor Relations Board (NLRB). This vote follows a contentious hearing over Becker’s nomination that was held on Tuesday. It was widely believed that once the HELP Committee cleared Becker’s nomination, it would be sent quickly to the Senate floor for a final vote before Republican Scott Brown was sworn in as senator, an event originally scheduled for next Thursday. This plan might be derailed, however, as it was announced yesterday that Brown could be sworn in as early as 5:00 pm today, raising the chances that Senate Republicans will be able to stop Becker’s confirmation.

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On Wednesday, President Obama re-submitted to the Senate his nomination of controversial candidate Craig Becker to be a member of the National Labor Relations Board (NLRB). Obama announced his intent to nominate Becker, who serves as Associate General Counsel to both the Service Employees International Union (SEIU) and the American Federation of Labor & Congress of Industrial Organizations, in April, and officially nominated him in July.  The Senate Health, Education, Labor and Pensions Committee approved Becker’s nomination – as well as those of Mark Pearce and Brian Hayes – in October.  The belief was that all three nominations would be presented to the Senate as a package, a move that many Republican lawmakers and members of the business community opposed, as doing so would limit the Senate’s ability to evaluate Becker on an individual basis. Becker’s divisive views regarding an employer’s role during a representation election campaign as well as the fear that he would be willing to use Board decisions to effectively institute elements of the proposed Employee Free Choice Act were likely factors causing Sen. John McCain (R-Ariz.) to put a hold on Becker’s nomination. Before the holiday recess, the Senate returned his nomination to the White House for reconsideration.

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Although there has been no official White House announcement, The New York Times has reported that President Obama plans to re-nominate Craig Becker to be a member of the National Labor Relations Board (NLRB). On December 24, the Senate returned Becker’s controversial nomination to the President for reconsideration.  The choice of Becker, who serves as Associate General Counsel to both the Service Employees International Union (SEIU) and the American Federation of Labor & Congress of Industrial Organizations, has been heavily criticized by members of Congress as well as by business advocates. Becker supports passage of the Employee Free Choice Act (EFCA), and has opined that “employers should be stripped of any legally cognizable interest in their employees’ election of representatives.”

If Obama sends his nomination back to the Senate, the confirmation process would begin again, and, presumably, face the same opposition as it did last year.

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Before the Senate adjourned for the holiday break, it returned to the President for reconsideration (pdf) the nomination of Craig Becker to be a member of the National Labor Relations Board (NLRB). President Obama announced his intent to nominate Becker, who serves as Associate General Counsel to both the Service Employees International Union (SEIU) and the American Federation of Labor & Congress of Industrial Organizations, in April.  Becker was officially nominated in July.

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By a vote of 57-35, the Senate approved the nearly $447 billion omnibus appropriations bill on Sunday. The House of Representatives passed this combination of six separate federal funding bills last Thursday.  The Consolidated Appropriations Act (H.R. 3288) will provide agencies including the Department of Labor (DOL), National Labor Relations Board (NLRB), and the Equal Employment Opportunity Commission (EEOC) with a substantial increase in funds for fiscal year 2010. Specifically, the bill provides $13.3 billion in discretionary funding to the DOL, $1.6 billion of which is allocated to worker safety and health initiatives. The NLRB is slated to receive $283.4 million, and the EEOC $367 million. The practical implication of this spending measure is that the affected agencies will now have the financial resources to carry out their stated plans to hire more personnel and boost their enforcement efforts. The DOL alone intends to use the funding to hire more than 600 new full-time enforcement and compliance employees at the Employment Benefits Security Administration (EBSA), Employment Standards Administration (ESA), the Occupational Safety and Health Administration (OSHA), and the Mine Safety and Health Administration (MSHA).

President Obama is expected to sign this bill into law.
 

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Yesterday, the Senate Committee on Health, Education, Labor and Pensions (HELP) approved the nominations of Jacqueline Berrien to head the Equal Employment Opportunity Commission (EEOC), and Victoria Lipnic and Chai Feldblum to be EEOC Members. The HELP Committee also approved the nomination of P. David Lopez to be the EEOC’s General Counsel.

In a statement (pdf), HELP Committee Chairman Sen. Tom Harkin (D-Iowa) said: “At this time of challenge, Americans need committed, capable public servants working full time on their behalf,” adding, “These nominees will serve Americans by protecting workers from discrimination, facilitating public service and preserving our rich national traditions in the humanities. I am pleased to move their nominations forward.”

If the Senate confirms all three EEOC members, the remaining two seats of the five-member Commission will be filled by current Acting Chairman Stuart Ishimaru and Constance Barker, the sole Republican EEOC member. Acting Vice Chair Christine Griffin has already been confirmed to serve as the deputy director of the Office of Personnel Management (OPM). Once her successor is confirmed, she will leave the EEOC for her new position at the OPM.

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On Thursday, the Senate confirmed the nomination of David Michaels to serve as the Assistant Secretary of the Department of Labor’s Occupational Safety and Health Administration (OSHA). President Obama named Michaels as his pick in July. The Senate Health, Education, Labor and Pensions (HELP) Committee approved his nomination on November 18.

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Secretary of Labor Hilda Solis has issued four orders detailing the authority of the four sub-agencies within the Department of Labor’s (DOL) Employment Standards Administration (ESA) that are now standalone agencies as a result of the ESA’s November 8 dissolution.  The four orders (Secretary’s Order 7-2009, 8-2009, 9-2009, and 10-2009) describe the delegation of authority and assignment of responsibilities to the directors of the Office of Federal Contract Compliance Programs (OFCCP), Office of Labor-Management Standards (OLMS), Wage and Hour Division (WHD), and the Office of Workers’ Compensation Programs (OWCP), respectively. Prior to November 8, these four entities had been under the ESA’s organizational umbrella. The directors of these agencies now report directly to the Secretary of Labor.

All four orders, published in today’s Federal Register and effective as of November 8, cancel the Secretary’s Order 1-2008 regarding the ESA. All existing DOL orders, directives, policies and guidance that reference this earlier Order are now amended to refer to one of the four new standalone entities, as appropriate.

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President Obama has announced his intent to nominate Cynthia Attwood to be a member of the Occupational Safety and Health Review Commission (OSHRC). The OSHRC is the independent federal agency responsible for adjudicating contests of citations or penalties resulting from an Occupational Safety and Health Administration (OSHA) workplace inspection. The agency, which functions as an administrative court, is also charged with establishing procedures for conducting hearings, receiving evidence, and rendering decisions.

According to a White House press release on her nomination, Attwood served for eight years as an Attorney Advisor for the Department of Labor's (DOL) Administrative Review Board, and then for three years as an Administrative Appeals Judge on this Board. In addition, Attwood spent more than 10 years in the Senior Executive Service at the DOL, both as the Associate Solicitor for Occupational Safety and Health and as the Associate Solicitor for Mine Safety and Health. After receiving her law degree from the University of Minnesota, Attwood began her career as a civil rights litigator at the Department of Justice.

Photo credit: dra_schwartz

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On Tuesday, President Obama submitted to the Senate the nomination of Republican Victoria Lipnic to be a Commissioner of the Equal Employment Opportunity Commission (EEOC). Lipnic currently practices management-side labor and employment law. Before entering private practice, Lipnic served as the U.S. Assistant Secretary of Labor for Employment Standards from 2002 until 2009, where she oversaw the Employment Standards Administration (ESA). Lipnic has also worked as Workforce Policy Counsel to the Republican members of the House Committee on Education and Labor, and as labor and employment in-house counsel for the U.S. Postal Service. During the Reagan administration, Lipnic served as a special assistant for business liaison to U.S. Secretary of Commerce Malcolm Baldrige.

Earlier this year, Obama nominated Democrats Jacqueline Berrien to serve as the agency’s Chair, and Chai Feldblum to be an EEOC member. It is likely that all three nominees will be considered as a package. Current members Acting Chairman Stuart Ishimaru and Acting Vice Chair Christine Griffin are both Democrats, while Commissioner Constance Barker is the lone Republican serving on the five-seat Commission. Republican Naomi Earp, who served as EEOC Chair during the Bush Administration, resigned in the spring. Acting Vice Chair Griffin – who has been confirmed to serve as the deputy director of the Office of Personnel Management – is allowed to remain on the Commission until a successor is approved. If Lipnic’s nomination is confirmed, she will serve as EEOC Commissioner until July 1, 2015.
 

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Last week the Senate confirmed the nominations of Joseph A. Main to be the assistant labor secretary for the Department of Labor’s Mine Safety and Health Administration (MSHA), and William E. Spriggs to serve as the DOL’s assistant labor secretary for policy.

Main began his career as a coal miner in 1967, and soon after began working in various local union positions for the United Mine Workers of America (UMWA). According to a White House press release, Main started working for the UMWA’s safety division in 1976. Main was appointed Administrator of the UMWA’s Occupational Health and Safety department in 1982, and held that position for 22 years. In this capacity, Main testified in 2000 before the House of Representatives’ Sub-Committee on Workforce Protections, calling for increased MSHA inspections and scrutiny of worksites and mine operators, and improved health and safety standards to protect miners.

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Last Thursday President Obama announced has his intent to nominate P. David Lopez to serve as general counsel of the Equal Employment Opportunity Commission (EEOC). According to a White House press release, Lopez has worked at the EEOC for 13 years both in the field and at the agency’s headquarters. Lopez presently serves as a supervisory trial attorney with the EEOC’s Phoenix District Office. Prior to working for the EEOC, Lopez worked at the Civil Rights Division, Employment Litigation Section, at the U.S. Department of Justice from 1991 to 1994, and was an associate in a private law practice from 1988-1991. Lopez earned his law degree from Harvard Law School in 1988, and his undergraduate degree in Political Science from Arizona State University in 1985, magna cum laude.

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Despite a great deal of protest from several Republicans and the business community, the Senate Committee on Health, Education, Labor and Pensions (HELP) voted 15 to 8 to approve the nominations of Craig Becker, Mark Pearce, and Brian Hayes to be members of the National Labor Relations Board (NLRB). President Obama named Pearce and Becker, both Democrats and widely considered pro-labor, as nominees on April 24 of this year. Hayes, a Republican and Senate committee staff member, was selected on July 9. Now that these nominations have cleared the HELP committee, they will be sent to the Senate floor as a package for final approval.

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The Department of Labor (DOL) has confirmed that Lorelei Boylan has withdrawn her nomination for Administrator of the agency’s Wage and Hour Division (WHD) for family reasons. The WHD is a sub-agency within the DOL’s Employment Standards Administration (ESA) responsible for enforcing federal labor laws concerning, among other topics, minimum wage, overtime pay, recordkeeping, youth employment and special employment, family and medical leave, migrant workers, lie detector tests, worker protections in certain temporary worker programs, and the prevailing wages for government service and construction contracts. President Obama named Boylan as his choice to lead the WHD on April 14, 2009. The WHD is expected to ramp up its enforcement efforts in the coming months, so whoever President Obama nominates in her stead will be charged with hiring and training new compliance officers, among other responsibilities.

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Patricia Shiu took the helm of the Office of Federal Contract Compliance Programs (OFCCP) this week. The OFCCP is the DOL sub-agency charged with administering and enforcing three laws that prohibit discrimination and require federal contractors and subcontractors to implement affirmative action plans. Shiu was named as the new OFCCP director in August.  Her current position within the DOL does not require a Senate confirmation. However, when the DOL’s Employment Standards Administration (ESA) – the umbrella agency within the DOL that encompasses the OFCCP along with three other sub agencies – is abolished, Shiu will report directly to the Secretary of Labor. Had Shiu taken her job after the dissolution of the ESA, she would likely have had to face a formal Senate confirmation process. At this point, it is unclear what title Shiu will hold after the ESA’s dissolution.

Prior to taking the job at the OFCCP, Shiu served as the Vice President for Programs at the Legal Aid Society-Employment Law Center (LAS-ELC) in San Francisco. Shiu has also worked as the director of the Society’s Work and Family Project, and lobbied for the passage of California’s Family Rights Act and its regulations. In 1993, former U.S. Secretary of Education Richard Riley appointed Shiu to the Department of Education’s Civil Rights Reviewing Authority. In addition, Shiu is a former member of NELA’s Executive Board, and served as one of its vice presidents.

Shiu’s advocacy of family leave and employment anti-discrimination issues makes it likely that she will champion the pending Paycheck Fairness Act (H.R. 12, S. 182), which, among other things, would reinstate the OFCCP’s discarded Equal Opportunity survey. The EO survey allowed the agency to gather certain employment information from federal contractors and subcontractors related to their Affirmative Action Programs, personnel activity and compensation. The legislation also provides the OFCCP with additional investigative methodologies to use in performing compensation analysis. As head of the OFCCP, Shiu will also be responsible for hiring and training a projected 200 new compliance officers.
 

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On Monday President Obama announced his intent to nominate Chai Feldblum to serve as one of the five members of the Equal Employment Opportunity Commission (EEOC).  Yesterday, her nomination was sent to the Senate for confirmation. Feldblum is currently a professor at the Georgetown University Law Center, where she has taught since 1991. According to her faculty bio, Feldblum was instrumental in drafting and negotiating the Americans with Disabilities Act of 1990 and the ADA Amendments Act of 2008. She also helped draft and negotiate the Employment Nondiscrimination Act (ENDA) and various medical privacy bills and regulations. In addition, Feldblum is the Director of Georgetown Law Center’s Federal Legislation and Administrative Clinic, and is co-director of Workplace Flexibility 2010, an initiative aimed to advance a national policy on workplace flexibility. Feldblum has written a number of articles and books advocating disability and gay rights, and has on several occasions testified before Congress to promote the ADA Restoration Act of 2007, the ADA Amendments Act of 2008, and employment flexibility to benefit older workers, among other workplace issues.

Feldblum earned her undergraduate degree from Barnard College, and her law degree from Harvard Law School. Feldblum has clerked for Judge Frank M. Coffin on the First Circuit Court of Appeals and for Justice Harry A. Blackmun on the U.S. Supreme Court.

If confirmed by the Senate, Feldblum would be the third Democrat to sit on the EEOC panel. Acting Chairman Stuart Ishimaru and Acting Vice Chair Christine Griffin are both Democrats, while Commissioner Constance Barker is currently the lone Republican serving on the Commission. Republican Naomi Earp, who served as EEOC Chair during the Bush Administration, resigned in the Spring. In July, President Obama nominated Democrat Jacqueline Berrien to serve as the new EEOC Chair.  Acting Vice Chair Griffin – who has been confirmed to serve as the deputy director of the Office of Personnel Management – is allowed to remain on the Commission until a successor is approved.

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On Friday the Senate confirmed the nomination of Alejandro Mayorkas to serve as the director of the U.S. Citizenship and Immigration Services (USCIS), the agency within the Department of Homeland Security responsible for overseeing lawful immigration to this country. In addition to establishing immigration-related policies and services, the USCIS adjudicates the petitions and applications of potential immigrants and guest workers.

President Obama announced his nomination of Cuban-born Mayorkas in April. In July, the Senate Judiciary Committee approved the nomination. In his testimony before the Judiciary Committee, Mayorkas listed as one of his first priorities if confirmed as USCIS Director: “ . . to strive to improve the Agency's fraud prevention and detection operations, increase collaboration with U.S. Immigration & Customs Enforcement (ICE) and other law enforcement agencies to respond to fraud, and improve the efficiency and accuracy of the E-Verify system.”

Mayorkas is currently a litigation partner in a private law firm. Prior to entering private practice, Mayorkas served as the U.S. Attorney for the Central District of California.  At the age of 39, Mayorkas became the youngest U.S. Attorney in the country.  Mayorkas earned his undergraduate degree at the University of California, Berkeley in 1981, and his law degree from Loyola University in 1985.
 

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The Obama Administration has selected Patricia A. Shiu, a public interest employment lawyer, to head the Department of Labor’s (DOL) Office of Federal Contract Compliance Programs (OFCCP). The OFCCP is the DOL sub-agency charged with administering and enforcing three laws that prohibit discrimination and require federal contractors and subcontractors to implement affirmative action plans.

Shiu is currently the Vice President for Programs at the Legal Aid Society-Employment Law Center (LAS-ELC) in San Francisco. According to biographical information posted by the National Employment Law Association (NELA), Shiu joined the Employment Law Center in 1983, and has focused on employment discrimination and family and medical leave cases. She has also served as the director of the Society’s Work and Family Project, and lobbied for the passage of California’s Family Rights Act and its regulations. In 1993, former U.S. Secretary of Education Richard Riley appointed Shiu to the Department of Education’s Civil Rights Reviewing Authority. In addition, Shiu is a former member of NELA’s Executive Board, and served as one of its vice presidents.

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On Tuesday President Obama announced his intent to nominate David Michaels as the assistant secretary of the Occupational Safety and Health Administration (OSHA). Michaels, an epidemiologist, is currently a research professor at the Department of Environmental and Occupational Health at the George Washington University School of Public Health and Health Services, where he also directs the Department’s doctoral program.

Prior to working at George Washington University, Michaels was nominated by former President Clinton to serve as Assistant Secretary of Energy for Environment, Safety and Health. His responsibilities included protecting the health and safety of workers, neighboring communities and the environment surrounding the nation’s nuclear weapons facilities. In that position, according to his biography posted on George Washington University’s website, Michaels “was the chief architect of the historic initiative to compensate workers in the nuclear weapons complex who developed cancer or lung disease as a result of exposure to radiation, beryllium and other hazards. Since its enactment in 2000, The Energy Employees Occupational Illness Compensation Program has provided more than $4.5 billion in benefits to sick workers and their families.” In addition, Michaels oversaw the promulgation of the Chronic Beryllium Disease Prevention and Nuclear Safety Management rules.

Michaels has written a book and a number of articles on workplace safety standards and contaminants, including Doubt is Their Product: How Industry's Assault on Science Threatens Your Health, Selected Science: An Industry Campaign To Undermine An OSHA Hexavalent Chromium Standard, Scientific Evidence and the Regulatory System: Manufacturing Uncertainty and the Demise of the Formal Regulatory System (pdf), Beryllium's Public Relations Problem: Protecting Workers When There Is No Safe Exposure Level (pdf), and Manufacturing Uncertainty: Contested Science And The Protection Of The Public's Health And Environment (pdf).

Michaels earned his undergraduate degree in History at the City College of New York, and his Master of Public Health degree in Epidemiology and doctoral degree in Sociomedical Sciences at Columbia University.

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The Senate on Friday confirmed by voice vote the nomination of Harry Hoglander to be a Member of the National Mediation Board (NMB). The three-member NMB is the independent federal agency charged with overseeing collective bargaining and representation under the Railway Labor Act (RLA), which provides employees in the aviation and railroad industries the right to organize and bargain collectively.

Hoglander has been a member of the NMB since August 6, 2002, and has twice served as its chairman. A former commercial airline and U.S. Air Force pilot, Hoglander also served as the executive vice-president of the Airline Pilots Association. In addition, Hoglander is an attorney and member of the Florida Bar Association who worked as a legislative specialist for Rep. John Tierney (D-Mass.) on matters concerning transportation, labor, defense and veterans affairs. Hoglander’s term is set to expire on July 1, 2011.
 

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President Obama has announced his intent to nominate Jacqueline Berrien as Chair of the Equal Employment Opportunity Commission (EEOC). Berrien currently serves as Associate Director-Counsel of the NAACP Legal Defense and Educational Fund (LDF). According to the White House press release on her nomination, Berrien worked as a Program Officer in the Ford Foundation’s Peace and Social Justice Program from 2001 to 2004. Before that, Berrien was an assistant counsel with LDF and directed the Fund’s voting rights and political participation work. According to biographical information provided by the NAACP, as assistant counsel Berrien represented African-American voters in proceedings before the U.S. Supreme Court, the U.S. Courts of Appeals and the U.S. District Courts. Prior to working for the LDF, Berriern was a staff attorney with the Lawyers' Committee for Civil Rights and the American Civil Liberties Union. Additionally, Berrien has taught in trial advocacy programs at Fordham and Harvard law schools and served on the adjunct faculty of New York Law School. After graduating law school, Berrien clerked for the Honorable U.W. Clemon, the first African-American appointed to the U.S. District Court in Birmingham, Alabama.

Berrien earned her law degree from Harvard Law School, where she served as a General Editor of the Harvard Civil Rights-Civil Liberties Law Review, and received her undergraduate degree from Oberlin College.

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President Obama has announced his nomination of Brian E. Hayes, Republican Labor Policy Director for the U.S. Senate Committee on Health, Education, Labor and Pensions (HELP), to be a Member of the National Labor Relations Board (NLRB or Board). If confirmed, Hayes would join current member Peter Schaumber as the second Republican to serve on the five-member Board. Board Members are appointed to five-year terms, with the term of one member expiring each year. The Board traditionally consists of three members selected by the party controlling the White House, and two from the opposing party. In April, Obama named Democrats Craig Becker and Mark Pearce as his other picks to fill the three vacant seats. Current NLRB Chairman Wilma Liebman is also a Democrat. On July 9, the White House sent the nominations of Becker, Pearce and Hayes to the Senate for confirmation.

According to information provided by the White House announcement, before serving as a Senate staffer, Hayes worked for 25 years in private practice as a management-side labor and employment attorney. Prior to entering the private sector, Hayes clerked for the Chief Judge of the National Labor Relations Board and then as Counsel to the Chairman of the NLRB. While working in private practice, Hayes taught classes in Labor Law, Collective Bargaining, Arbitration and Employment Litigation at Western New England Law School. Has earned his undergraduate degree at Boston College and his law degree from Georgetown University Law Center.

It is not yet clear when confirmation proceedings will occur, or whether the three pending nominees will be considered as a package or individually.

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The Employment Standards Administration (or “ESA” in DOL-speak) is not well-known outside the Beltway and the community of wage and hour practitioners. ESA is an umbrella organization responsible for management and oversight of four subordinate agencies:

• The Wage and Hour Division (“WHD”)
• The Office of Federal Contract Compliance Programs (“OFCCP”)
• The Office of Labor-Management Standards (“OLMS”), and
• The Office of Workers' Compensation Programs (“OWCP”)

The Assistant Secretary of ESA and the Administrator of the Wage and Hour Division are both positions whose incumbents must be nominated by the President and confirmed by the Senate. The Directors of the OFCCP, OLMS and OWCP are appointed by the Secretary of Labor.

On July 8, 2009, Acting Assistant Secretary of ESA, Shelby Hallmark, announced that the ESA will be abolished in November, with the leaders of the four agencies – WHD, OFCCP, OLMS and OWCP reporting directly to the Secretary of Labor.  Continue reading at Littler's Wage & Hour Counsel blog.

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On Monday, President Obama announced his intent to nominate George H. Cohen to serve as the director of the Federal Mediation and Conciliation Service (FMCS), the independent federal agency charged with, among other things, handling the arbitration and mediation of labor disputes and contract negotiations. If the Employee Free Choice Act passes with its current first contract interest arbitration provisions intact, Cohen presumably would be charged with implementing those provisions as well.

According to biographical information published by the Peggy Browning Fund, a nonprofit corporation dedicated to educating law students and providing work experience in the area of workers' rights, Cohen practiced for 40 years as a well-respected union-side labor lawyer. During this period, he argued five cases before the U.S. Supreme Court involving matters ranging from collective bargaining to workplace safety.

Before being named as Obama’s pick for FMCS Director, Cohen worked as a mediator, and currently is a member of the Mediation Panel of the U.S. Circuit Court of Appeals for the D.C. Circuit. Prior to working in the private sector, Cohen served as an attorney advisor and appellate attorney for the National Labor Relations Board, and – according to the aforementioned bio – is credited with “help[ing] shape the progressive, union and worker friendly agenda of the ‘Kennedy Board.’” Cohen has also served as the Union Co-Chair of the first American Bar Association (ABA) Committee on Sports and Entertainment Law and the first ABA Committee on the Occupational Safety and Health Law. Additionally, Cohen has taught the Art of Collective Bargaining among other labor-related courses as an adjunct professor at Georgetown Law School.

Cohen received his undergraduate and law degrees from Cornell University and its Law School, and an LLM degree from Georgetown Law.

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As anticipated, the Senate on Friday confirmed the nomination of Jane Oates as assistant secretary for the Department of Labor’s (DOL) Employment and Training Administration (ETA). The ETA is the DOL’s sub-agency tasked with administering federal government job training and worker dislocation programs, federal grants to states for public employment service programs, and unemployment insurance benefits. The Senate approved the nomination by voice vote, as is typical for most nominees once he or she has been approved by the applicable Senate committee. Earlier this month, the Senate Committee on Health, Education, Labor and Pensions sanctioned Oates’s nomination to head the ETA. Oates currently is the executive director of the New Jersey Commission on Higher Education and senior policy advisor to Governor Jon S. Corzine.

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The Senate Committee on Health, Education, Labor, and Pensions (HELP) has approved the nomination of Jane Oates to serve as the assistant secretary of the Department of Labor’s Employment and Training Administration (ETA). The ETA is the DOL’s sub-agency tasked with administering federal government job training and worker dislocation programs, federal grants to states for public employment service programs, and unemployment insurance benefits. Currently, Oates is the executive director of the New Jersey Commission on Higher Education and senior policy advisor to Governor Jon S. Corzine. Prior to this position, Oates served as the senior policy advisor on higher education, national service, adult literacy, education research and workforce issues to Sen. Edward Kennedy (D-Mass.) on the U.S. Senate Committee on Health, Education, Labor and Pensions.

In other agency news, President Obama recently announced his intent to nominate Harry Hoglander to serve on the National Medication Board (NMB) for a third term. The three-member NMB is the agency charged with overseeing collective bargaining and representation under the Railway Labor Act (RLA), which provides employees in the aviation and railroad industries the right to organize and bargain collectively. Hoglander has been a member of the NMB since August 6, 2002, and has twice served as its chairman. A former commercial airline and U.S. Air Force pilot, Hoglander also served as the executive vice-president of the Airline Pilots Association. In addition, Hoglander is an attorney who worked as a legislative specialist for Rep. John Tierney (D-Mass.) for matters concerning transportation, labor, defense and veterans affairs. 

This entry has been revised to reflect the following correction:

Correction:  June 18, 2009

The Washington D.C. Employment Law Update blog entry posted June 12 provided incorrect information regarding the nomination of Jane Oates to serve as the assistant secretary of the Department of Labor's Employment and Training Administration (ETA).  Oates's nomination has been approved by the Senate HELP Committee; the Senate has not yet confirmed her nomination.

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Last week, the Senate confirmed President Obama’s nominations for three important administration positions. Seth Harris has been approved to serve as deputy secretary of the Department of Labor (DOL), the second-highest position within the DOL. Harris is a former law professor and DOL policy aide for the Clinton administration, and has written a number of articles in favor of flexible work arrangements.

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Labor advocate and founding executive director of the American Rights at Work (ARW) Mary Beth Maxwell is joining the Department of Labor (DOL) as a senior advisor to Secretary of Labor Hilda Solis. According to an ARW press release, Maxwell will work with the White House Task Force on Middle Class Working Families, the Obama Administration’s new initiative aimed at “restoring labor standards, improving workplace safety, enhancing work and family balance, protecting retirement security, and helping protect middle- and working-class incomes.”

Maxwell has been a vocal advocate of the beleaguered Employee Free Choice Act (EFCA), and was widely rumored to be Obama’s pick to serve as Secretary of Labor. Maxwell is most known for her work at the ARW, a nonprofit advocacy organization begun in 2003 whose mission is to “promote the freedom of workers to join a union and bargain collectively.” Solis herself has ties to the ARW, having once served as the organization’s treasurer and board member. Prior to working at the ARW, Maxwell served as National Field Director for Jobs with Justice, an organization affiliated with the Service Employees International Union with which Secretary Solis is closely aligned. Her other positions have included acting as Deputy Field Director for NARAL, directing the pro-choice organization’s electoral, legislative, media, and fundraising training programs for local affiliates. Maxwell has also worked as Field Director for the United States Student Association.
 

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President Obama has announced his intent to nominate Alejandro Mayorkas to serve as the director of the U.S. Citizenship and Immigration Services (USCIS). The USCIS is the agency within the Department of Homeland Security responsible for overseeing lawful immigration to this country. To that end, the USCIS adjudicates, among other things, the petitions and applications of potential immigrants and guest workers.

Born in Cuba, Mayorkas is currently a litigation partner in a private law firm. Prior to entering private practice, Mayorkas served as the U.S. Attorney for the Central District of California, where – at the age of 39 – he began as the youngest U.S. Attorney in the country. In this position, Mayorkas prosecuted a wide variety of cases, including those involving public corruption, investment fraud, civil rights violations, high-tech and computer-related crime, organized crime, environmental crime, and international money laundering. In addition, the National Law Journal has named Mayorkas as one of the "50 Most Influential Minority Lawyers in America."

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President Obama has announced his plans to nominate Craig Becker and Mark Pearce as board members of the National Labor Relations Board (NLRB or Board). The five-member Board serves as a quasi-judicial body in deciding cases under the National Labor Relations Act (NLRA). Board Members are appointed to five-year terms, with the term of one member expiring each year. The Board traditionally consists of three members selected by the party controlling the White House, and two from the other party. Becker and Pearce, along with Chairwoman Liebman, would constitute the three Democratic-selected seats. Assuming President Obama follows precedent, only one Republican Board seat will remain vacant. When and how that seat will be filled is not clear.

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President Obama has picked Thomasina Rogers as his nominee for Chair of the Occupational Safety and Health Review Commission (“OSHRC” or “Review Commission”). The OSHRC is a quasi-judicial independent federal agency created to decide contests of citations or penalties resulting from Occupational Safety and Health Administration (OSHA) workplace inspections. As Chair, Rogers would be in charge of the administrative operations of the Review Commission, as well as participate with other commissioners in case adjudication.

Rogers was appointed to the Review Commission in 1998 by former President Bill Clinton, and served as Chair from 1999-2002. She was reappointed in April 2003. In 1994, Rogers served as a chair of the Administrative Conference of the U.S. until its dissolution at the end of 1995. In addition, Rogers served for seven years in the Federal Government's Senior Executive Service (SES). While at the SES, Rogers worked as legal counsel to the Equal Employment Opportunity Commission (EEOC), where she had primary responsibility for managing the development of the Americans With Disabilities Act (ADA) employment regulations.

Rogers is a graduate of Northwestern University and Columbia University School of Law.

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President Obama has chosen Lorelei Boylan as his nominee for Administrator of the Department of Labor’s Wage and Hour Division. The Wage and Hour Division (WHD) is a sub-agency within the Department of Labor’s (DOL) Employment Standards Administration (ESA) responsible for enforcing federal labor laws concerning, among other topics, minimum wage, overtime pay, recordkeeping, youth employment and special employment, family and medical leave, migrant workers, lie detector tests, worker protections in certain temporary worker programs, and the prevailing wages for government service and construction contracts.

Boylan currently serves as the Director of Strategic Enforcement at the New York State Department of Labor, Labor Standards Division. According to a White House press release, Boylan supervises the Apparel Industry/Fair Wages Task Force, a state-wide specialized unit charged with investigating low-wage industries for wage and hour violations. Prior to heading the Task Force, Boylan spearheaded the Bureau of Immigrant Workers’ Rights, a newly formed division of New York’s DOL, where she developed policies to assist those with limited English proficiency. Prior to working for New York’s DOL, Boylan practiced law as an Assistant Attorney General in the New York State Attorney General’s Office. She was hired under the Honor’s Program to represent the State in defensive and affirmative litigation. In this capacity, Boylan investigated businesses for violations of state and federal labor laws and represented the Department of Health in New York State Supreme Court and the New York Court of Appeals. Before becoming a lawyer, Boylan worked for several years for a global monitoring company, counseling firms on compliance with state and federal labor laws, OSHA, immigration and tax laws.

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U.S. Labor Secretary Hilda Solis has appointed Jordan Barab as deputy assistant secretary for the Occupational Safety and Health Administration (OSHA). Barab will also serve as acting assistant secretary for OSHA as of April 13.

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President Obama has chosen Jane Oates as his nominee for assistant secretary of the Department of Labor’s Employment and Training Administration (ETA).  The ETA is the DOL’s sub-agency tasked with administering federal government job training and worker dislocation programs, federal grants to states for public employment service programs, and unemployment insurance benefits. The ETA provides these services primarily through state and local workforce development systems.

Currently, Oates is the executive director of the New Jersey Commission on Higher Education and senior policy advisor to Governor Jon S. Corzine. Oates also serves on the State Employment and Training Commission (SETC), the State Commission on Adult Literacy and Education, New Jersey High School Redesign Task Force, the Public Sector Work Group and chairs the State Educators Health Benefits Commission and the Governor’s Schools Board of Overseers. Before taking her current position in 2006, Oates served as the senior policy advisor on higher education, national service, adult literacy, education research and workforce issues to Sen. Edward Kennedy (D-Mass.) on the U.S. Senate Committee on Health, Education, Labor and Pensions.

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President Obama has selected J. Randolph “Randy” Babbitt, former president of the Air Line Pilots Association (ALPA), to lead the Federal Aviation Administration (FAA).  A former pilot, Babbitt served as President and CEO of US ALPA, the world’s largest professional airline pilots’ union representing more than 50,000 pilots in the United States and Canada. Babbitt currently is a partner of Oliver Wyman Group, a worldwide aviation consulting firm.

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The following summarizes some federal agency happenings this week:

Phyllis Borzi is Tapped to Serve as Assistant Secretary of DOL’s EBSA

President Obama has nominated Phyllis C. Borzi to serve as the Assistant Secretary of Labor for the Department of Labor’s (DOL) Employee Benefits Security Administration (EBSA). The EBSA is the organization within the DOL whose mission it is to educate and assist the 150 million Americans covered by more than 679,000 private retirement plans, 2.5 million health plans, and similar numbers of other welfare benefit plans; as well as plan sponsors and members of the employee benefits community.

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President Obama has picked Kathleen Martinez to be the Assistant Secretary for Disability Employment Policy (ODEP). The ODEP is a sub-cabinet level policy agency in the Department of Labor that coordinates efforts to develop and implement policies and practices for the hiring of people with disabilities in both the public and private sectors.

Blind since birth, Martinez has specialized in promoting disability rights throughout her career. She is currently the executive director of the World Institute on Disability (WID). In this position she has been instrumental in producing the international webzine DisabilityWorld (www.disabilityworld.org) in English and Spanish. Martinez also directs Proyecto Visión, the WID’s National Technical Assistance Center, to increase employment opportunities for Latinos with disabilities in the United States.

In 2002, Martinez was appointed by former President Bush as one of fifteen members of the National Council on Disability, an independent federal agency responsible for advising the President and Congress on disability policy. In 2005, Martinez was appointed as one of eight public members on the State Department’s Committee on Disability and Foreign Policy
 

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President Obama has chosen Joseph Szabo to head the Federal Railroad Administration (FRA). The FRA is the agency within the U.S. Department of Transportation charged with, among other things, promulgating and enforcing rail safety regulations, conducting research into equipment design and operating practices, and consolidating government support of rail transportation activities.

Szabo, a fifth-generation railroad worker, is currently the state legislative director in Illinois for the United Transportation Union (UTU), the nation’s largest rail union. In 1984 Szabo was elected as secretary/treasurer of UTU Local 1290, and eventually became the local’s delegate and legislative representative. He worked his way up the union ladder to become vice chairman of the UTU Illinois legislative board in 1991, and was eventually elected to serve as the union’s state director in 1996. In 2006, Szabo was appointed a vice president of the Illinois AFL-CIO, and in October 2008 was elected to a four-year term. Since January 15, 2009, Szabo has worked on an interim assignment in the UTU’s National Legislative Office in Washington, D.C., serving as Alternate National Legislative Director.

In response to Obama’s nomination of Szabo, UTU International President Mike Futhey stated that Szabo is “the first FRA administrator to come out of the ranks of rail labor. It is a validation that this Obama administration is a friend of organized labor.”
 

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President Obama has nominated T. Michael Kerr to serve as the assistant secretary for administration and management at the Department of Labor (DOL), and M. Patricia Smith as DOL solicitor.

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President Obama has nominated Linda Puchala to hold a seat on the National Mediation Board (NMB). The three-member NMB is the agency charged with overseeing collective bargaining and representation under the Railway Labor Act (RLA), which provides employees in the aviation and railroad industries the right to organize and bargain collectively. Puchala would take the seat currently held by Bush-appointee and NMB Chair Read Van de Water.

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President Obama has announced his intention to nominate John Morton to be the Assistant Secretary for Immigration and Customs Enforcement (ICE), and U.S. Department of Homeland Security Secretary Janet Napolitano named Esther Olavarria as Deputy Assistant Secretary for Policy. 

Secretary Napolitano said:

John Morton and Esther Olavarria are tremendous additions to our Homeland Security team. Both have demonstrated an extraordinary commitment to public service and both will be able and effective partners as we tackle the very complex issues surrounding immigration and securing of our borders.

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President Obama has selected academic and former Department of Labor (DOL) policy aide Seth Harris to serve in the second-highest position within the DOL. If confirmed as deputy secretary, Harris will be yet another alum from the Clinton era to join the new administration.

Prior to his nomination, Harris served as an agency working group leader on President Obama’s transition team. Harris was selected as a transition team member while working as a professor and director of the Labor and Employment Law Program at New York Law School. Harris spent nearly seven years serving under the Clinton administration as a senior advisor on policy, legal management, and strategy issues for two U.S. Secretaries of Labor.

While a law professor, Harris wrote a number of articles critical of the Department of Labor under the Bush administration. In particular, Harris criticized Labor Department regulations that were perceived as expanding the white-collar exemptions from the overtime requirements of the Fair Labor Standards Act. A strong proponent of flexible work arrangements, Harris is currently a member of the National Advisory Commission on Workplace Flexibility. In addition, Harris is a senior fellow of the Life Without Limits Project of the United Cerebral Palsy Association.

Harris holds degrees from the Cornell University’s School of Industrial & Labor Relations, and New York University School of Law. 

Correction: June 25, 2009

The Washington D.C. Employment Law Update blog entry posted February 25, 2009 stated that Seth Harris taught at the New York University School of Law.  The current entry correctly reflects that Harris was a professor at New York Law School. 

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The massive,1,122-page omnibus bill (H.R. 1105) introduced by House Democrats on Monday would provide significant funding increases for government agencies dealing with labor and employment issues. (pdf)  This $410 billion spending measure consists of nine fiscal 2009 appropriations bills that would spread a considerable amount of funds throughout several domestic agencies.

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After a nearly two-month delay, Rep. Hilda Solis (D-CA) has been confirmed as the next U.S. Secretary of Labor. Her nomination was supported by a Senate vote of 80-17. The Senate Health, Education, Labor and Pensions (HELP) Committee had already voted to approve her nomination by voice vote on the evening of Wednesday, February 11. Only two Republican Senators – Pat Roberts (R-KS) and Tom Coburn (R-OK) – opposed her nomination at the time. The HELP confirmation cleared the way for a vote on her nomination before the entire Senate this afternoon. Before Congress adjourned for the President’s Day recess, Senate Majority Leader Harry Reid (D-NV) had filed a motion to invoke cloture on her nomination. This cloture vote – which had been slated to occur this morning – would have staved off further objections to her nomination so long as Democrats could garner at least 60 votes in her favor. At the eleventh hour, however, Reid decided to forgo this procedural test vote and move right to a full confirmation vote.

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President Obama has named Stuart J. Ishimaru to serve as acting chairman of the Equal Employment Opportunity Commission (EEOC). Ishimaru, who was appointed to the EEOC in 2003 by former President Bush, is the senior Democratic member of the agency. Christine M. Griffin, a Democrat who has been a member of the EEOC since 2006, was named as acting vice chairman.

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President Obama has designated Wilma B. Liebman as the Chairman of the National Labor Relations Board (NLRB). As an ardent supporter of unions and a vocal critic of right to work laws and recent NLRB decisions promoting an employee’s ability to reject unionization, Liebman will surely take the NLRB in a new direction – and one that is not necessarily favorable to employers.

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In a surprise move, President-elect Obama has chosen dark-horse candidate Rep. Hilda Solis (D-CA) as Labor Secretary. Solis’ selection will no doubt appease organized labor, which chose her to defeat pro-free trade incumbent Democratic Congressman Matthew Martinez (D-CA) in a primary challenge in 2000, and which contributed heavily to her re-elections since.

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The Center for American Progress Action Fund, a powerful, pro-labor think tank, recently released a report criticizing the Department of Labor (DOL) for failing to enforce worker protection laws, and outlining ways in which the incoming administration can implement changes in an expedited manner without resorting to legislation or lengthy rule-making. The report, Five Strategies for the Obama Administration to Enforce Workers’ Rights at the Department of Labor, details five methods for revamping the DOL immediately. These recommendations include:

1. Using increased civil and criminal employer penalties to create a culture of accountability;
2. Increasing enforcement staff and using partnerships with community organizations, industry associations, state worker-protection agencies, and labor unions to assist under-funded enforcement divisions with industry monitoring;
3. Targeting high-violation sectors with strategic initiatives;
4. Using thorough record-keeping to drive enforcement priorities, enhance public accountability, and improved performance evaluation; and
5. Strengthening immigrant protections to improve job quality for all workers.

It is expected that these recommendations will be taken seriously by the next administration. John Podesta, former White House Chief of Staff to President Clinton and Co-Chair of Obama’s transition team, is the Founder and President of the Center for American Progress. As a high-ranking member of the transition team, Podesta will be instrumental in selecting the next Secretary of the DOL, as well as filling other critical vacancies in this agency. In fact, it would not be at all surprising if one or more such vacancies were filled by a member or affiliate of this think tank. For example, Tom Daschle – who was recently named as the next Secretary of the Department of Health and Human Services – is a Distinguished Senior Fellow of the Center for American Progress. Thus, expect the new leaders at the DOL – who could be mined from the think tank itself – to give serious consideration and possibly fully implement one or more of these strategies.
 

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Obama’s transition team has named the Agency Review Team leads for, among others, the Education and Labor Team and the Justice and Civil Rights Team. These individuals will review how agencies integral to labor and employment law and enforcement are operating, determine the direction the new administration will want these agencies to take, and identify key administrative candidates for presidential appointment. Since many of the team leaders are former Clinton Administration officials and/or have close ties with organized labor, it is expected that the Obama Administration will likely favor a marked increase in business and employee regulation and oversight. Additionally, it is expected that agencies charged with workplace oversight and employee protections will receive increased funding and thus an enhanced ability to enforce workplace laws.

This blog will track agency appointments of import, including those slated to fill the following positions:

• Two Commissioner openings on the Equal Employment Opportunity Commission;
• Three vacant seats, including the Chair, on the National Labor Relations Board;
• Secretary of the Department of Labor;
• Leaders of the following components of the Department of Labor:
  • Employment Standards Administration
    •  Wage and Hour Division
    •  Office of Federal Contract Compliance Programs
  • Occupational Health and Safety Administration

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If there was any doubt regarding the influence organized labor may exert in the Obama Administration, the selection of Patrick Gaspard as Director of the Office of Political Affairs should lay those doubts to rest.

Prior to serving as the Associate Director of Personnel for the new administration’s transition team, Gaspard served as the Executive Vice President of Politics and Legislation for Local 1199 of the Service Employees International Union (SEIU), a very large and influential labor organization. Gaspard’s union loyalties will no doubt have some bearing on his roll as Political Director, a position criticized by many as being unnecessary and/or a propagator of party divisiveness.

Partisanship notwithstanding, Gaspard’s appointment may be a harbinger of things to come. Top vacancies need to be filled in the National Labor Relations Board (NLRB), Department of Labor (DOL) and Equal Employment Opportunity Commission (EEOC), and organized labor is demanding that these posts be filled by supporters of labor. John Wilhelm, co-President of UNITE-HERE said in a leaked September memo:

We should have only one demand of an Obama administration: that the President of the United States publicly, repeatedly, and strenuously advocate that workers have unions, because unions are necessary to build a good America; that he apply that advocacy to specific worker fights and not just general statements; and that he put people on the [National Labor Relations Board] and in his cabinet who share that view and are committed to implementing it.

If these positions are seeded with strong proponents of organized labor, expect much stronger employee protections and employer regulations within the coming years. As it currently stands, Ellen Moran, a former official with the AFL-CIO, has been named as Obama’s Director of Communications. In addition, Duane Woerth, former President of the Air Line Pilots Association, is rumored to be in the running to lead the Federal Aviation Administration (FAA). Moreover, several labor officials or those with strong labor ties are being discussed as candidates for Secretary of Labor, including AFL-CIO Vice President Linda Chavez-Thompson and Mary Beth Maxwell, the Executive Director of American Rights at Work, a labor advocacy group.
 

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