Employment Law Report

HELP Committee Republicans Call for Withdrawal of Patricia Smith’s Nomination to be Solicitor of Labor

 By Edwin S. Hopson

The ranking member of the U.S. Senate’s Health, Education, Labor and Pensions Committee, Senator Michael Enzi, and all 10 Republicans on the Committee have called for the withdrawal of President Obama’s nomination of Patricia Smith to be Solicitor of Labor at the U.S. Department of Labor.  On February 1, 2010, Senator Enzi issued a report which can be found on the HELP Committee’s website detailing a number of allegations Enzi claims disqualify her from being confirmed by the Senate.  See http://help.senate.gov/Min_press/2010_02_01.pdf,

 The allegations are that Ms. Smith, who is currently Commissioner of the New York State Department of Labor, gave inaccurate information to the Committee and individual senators regarding a New York State program called “Wage and Hour Watch.”  The program, according to the ranking member’s report, “recruits and trains union organizers and public interest groups to go into businesses with compliance literature and interview employees to discover violations of wage and hour law.”  These individuals were given materials and official cards to assist in their gaining entrance to private businesses.

 The alleged inaccuracies related to whether the program was (1) to be expanded, (2) designed as an educational tool versus an enforcement mechanism, and (3) developed internally by the New York State Labor Department.  During her testimony and/or in response to individual senator’s questionnaires, according to Enzi’s report, Smith advised that the program would not be expanded, was an educational tool and had been developed internally by her staff.  Enzi in his report, however, cites evidence indicating that in fact the program is to be expanded, was used as an enforcement mechanism and was developed in large part by the lead organizer of a labor organization who worked with the New York State Labor Department in putting the program together.  Although Ms. Smith had stated the program would not be used for union organizing, records obtained from the New York State Labor Department and a union newsletter showed plans specifically to use the program for union organizing throughout New York State, according to the report.

 The report also claims that “[o]nly when questioned on these inconsistencies did she admit three months after her testimony in a confirmation hearing that she had ‘misspoken.’”

 The Solicitor of Labor manages over 400 attorneys and plays a major role in enforcement of various labor laws including wage and hour matters under the Fair Labor Standards Act and other laws, occupational safety and health under the Occupational Safety and Health Act, mine safety and health under the Mine Health and Safety Act, internal union elections under the Labor-Management Reporting and Disclosure Act, equal employment opportunity for federal contractors Executive Order 11246, and pensions and health plans under the Employee Retirement Income Security Act.

 The Washington Post reported on February 2, 2010 that the Senate Democrats won a closure vote 60 to 32 on Smith’s nomination thereby clearing the way for confirmation by the full Senate.  This vote was taken before Senator-Elect Brown of Mass. (R) was sworn in.