Hilda Solis: Labor's New Sheriff

In 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."

David 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.

Now, 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.

During 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.

President 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."

Indeed, 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.

Smith, 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.

She 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 employers. 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.

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

Or 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.

Now, 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.

In 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.

Other 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."

Yes, 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.

Solis 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.)

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

Facing 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.

The 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.

Take 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?

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

At 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."

Even 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."

Even 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.

In 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."

Nonetheless, 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 meatpacking.

Most 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 Island 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.

The 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 administration.

It 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."