[Senate Hearing 110-752]
[From the U.S. Government Publishing Office]
S. Hrg. 110-752
NOMINATION OF GREGORY JACOB
AND HOWARD RADZELY
=======================================================================
HEARING
OF THE
COMMITTEE ON HEALTH, EDUCATION,
LABOR, AND PENSIONS
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
ON
NOMINATION OF GREGORY JACOB, OF NEW JERSEY, TO BE SOLICITOR OF LABOR,
U.S. DEPARTMENT OF LABOR; AND HOWARD RADZELY, OF MARYLAND, TO BE DEPUTY
SECRETARY OF LABOR, U.S. DEPARTMENT OF LABOR
__________
NOVEMBER 1, 2007
__________
Printed for the use of the Committee on Health, Education, Labor, and
Pensions
Available via the World Wide Web: http://www.gpoaccess.gov/congress/
senate
U.S. GOVERNMENT PRINTING OFFICE
38-876 PDF WASHINGTON DC: 2009
---------------------------------------------------------------------
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512�091800
Fax: (202) 512�092104 Mail: Stop IDCC, Washington, DC 20402�090001
COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS
EDWARD M. KENNEDY, Massachusetts, Chairman
CHRISTOPHER J. DODD, Connecticut MICHAEL B. ENZI, Wyoming,
TOM HARKIN, Iowa JUDD GREGG, New Hampshire
BARBARA A. MIKULSKI, Maryland LAMAR ALEXANDER, Tennessee
JEFF BINGAMAN, New Mexico RICHARD BURR, North Carolina
PATTY MURRAY, Washington JOHNNY ISAKSON, Georgia
JACK REED, Rhode Island LISA MURKOWSKI, Alaska
HILLARY RODHAM CLINTON, New York ORRIN G. HATCH, Utah
BARACK OBAMA, Illinois PAT ROBERTS, Kansas
BERNARD SANDERS (I), Vermont WAYNE ALLARD, Colorado
SHERROD BROWN, Ohio TOM COBURN, M.D., Oklahoma
J. Michael Myers, Staff Director and Chief Counsel
Katherine Brunett McGuire, Minority Staff Director
(ii)
C O N T E N T S
__________
STATEMENTS
THURSDAY, NOVEMBER 1, 2007
Page
Kennedy, Hon. Edward M., Chairman, Committee on Health,
Education, Labor, and Pensions, opening statement.............. 1
Enzi, Hon. Michael B., a U.S. Senator from the State of Wyoming,
opening statement.............................................. 3
Brown, Hon. Sherrod, a U.S. Senator from the State of Ohio,
statement...................................................... 4
Radzely, Howard, of Maryland, Nominee to be Deputy Secretary of
Labor, U.S. Department of Labor................................ 5
Jacob, Gregory F., of New Jersey, Nominee to be Solicitor of
Labor, U.S. Department of Labor................................ 6
ADDITIONAL MATERIAL
Statements, articles, publications, letters, etc.:
Letters of Support........................................... 22
Response to Questions of Senator Kennedy by:
Gregory Jacob............................................ 23
Howard Radzely........................................... 29
Response to Questions of Senator Clinton by:
Gregory Jacob............................................ 27
Howard Radzely........................................... 37
Response to Questions of Senator Gregg by Gregory Jacob...... 28
(iii)
NOMINATION OF GREGORY JACOB
AND HOWARD RADZELY
----------
THURSDAY, NOVEMBER 1, 2007
U.S. Senate,
Committee on Health, Education, Labor, and Pensions,
Washington, DC.
The committee met, pursuant to notice, at 10:40 a.m. in
Room SD-430, Dirksen Senate Office Building, Hon. Edward M.
Kennedy, chairman of the committee, presiding.
Present: Senators Kennedy, Brown, and Enzi.
Opening Statement of Senator Kennedy
The Chairman. We'll come to order.
Today, our committee is considering the nominations of Mr.
Howard Radzely, to be Deputy Secretary of Labor, and Gregory
Jacob, to be Solicitor of Labor. Along with the Secretary of
Labor, these positions are vital in determining Department
policy and enforcing the law on behalf of America's workers.
These are positions of great influence and responsibility that
affect the lives of every man, woman, and child in America.
They ensure that hardworking families who rely on overtime pay
will be able to make ends meet. They protect the safety and
health of workers performing difficult and dangerous work, and
they determine whether parents who need to care for sick
children can meet their family needs and still return to their
jobs. They defend vulnerable workers who are abused by
unscrupulous employers.
It's essential that these officials have the experience and
dedication to defend America's working families, especially
now, when this Administration has shown a troubling lack of
commitment to protect workers' rights.
Under this Administration, workers have seen their overtime
rights under attack. More than 6 million workers lost overtime
rights when the Department revised its overtime rules in 2004.
Workers have also lost the vital protection of our prevailing
wages. After the Gulf Coast storms, when workers were desperate
to support their families, the Administration suspended Davis-
Bacon protections, preventing workers in the recovery zone from
earning a living wage.
We've seen appalling failures in mine safety. In 2006, we
had 72 mining fatalities, the highest rate in 5 years, while
MSHA's inspection rate dropped to a record low level.
We also have seen a complete failure to enforce essential
ergonomics regulations. In 2005, there were more than 375,000
ergonomic injury cases, and yet, the Administration issued only
one citation for ergonomic injury.
We've also seen an unprecedented decline in enforcement
activity. Since this Administration took office, the number of
workers whose workplaces have been inspected by OSHA has
declined by 42 percent, the Wage and Hour Division has
completed 30 percent fewer enforcement actions, more workers
are getting back wages, but the Division is not pursuing real
penalties against the employers who violate the law. Civil
penalties have declined by more than 25 percent under this
Administration.
But, while the Department claims to be focusing its
enforcement efforts on low-wage workers, its record in such
industry has been dismal. The number of concluded cases is down
by 68 percent in the garment industry, 39 percent in the
agricultural industry, 32 percent in the healthcare industry,
since this Administration took office.
The Department of Labor was created to protect American
workers. We're looking to these two nominees for realistic
assurances that they'll carry out their important missions.
We know that working families are facing unprecedented
challenges that are likely to increase in the coming years.
We've lost more than 3 million manufacturing jobs to
outsourcing. Seven of the ten occupations with the largest job
growth are low-skill, service-sector jobs, where workers are
vulnerable, wages are low, and violation or evasion of our
labor laws is common. Failure to enforce the laws has serious
economic consequences for all employees and for the entire
Nation.
In facing these challenges, employees can't go it alone. In
many areas, such as the enforcement of the Occupational Safety
and Health Act, or enforcement of prevailing wage protections,
workers have no remedy under the law. They have no way to
protect their rights, unless the Department of Labor is willing
to fight for them. Now more than ever they need the Department
firmly in their corner, aggressively battling for workers'
rights.
We need to return to the days when the Department of Labor
was a proactive partner in the fight for working families. We
need a more effective enforcement of the laws. We need
compliance audits to assure how well our laws are protecting
workers. We need comprehensive information about the challenges
facing working families. We need reforms to protect workers and
prevent the kinds of workplace crises that cost American lives.
The positions before us today will help determine whether
the Department can fulfill these critical missions. The Deputy
Secretary of Labor is the No. 2 official in the Department. He
manages all of the legislative, regulatory, legal, and policy
issues under the Department's jurisdiction, and oversees its
$59 billion budget; under the leadership of the Secretary, the
Deputy determines what the Department's priorities will be.
The Solicitor of Labor is in charge of enforcing more than
180 labor laws, addressing issues of vital importance to all
working families, oversees a staff of more than 400 attorneys,
and provides advice and guidance on policy, legislative,
regulatory, and enforcement initiative. The Solicitor is truly
the workers' lawyer, and must be a zealous advocate for
workers' rights.
These are challenging and important responsibilities. The
laws enforced by the Department of Labor are about basic
fairness. We need strong leadership at the Department to make
these rights a reality for all Americans. And we thank you for
joining with us today, and we'll look forward to introducing
you after the comments of my friend and colleague Senator Enzi.
Opening Statement of Senator Enzi
Senator Enzi. Thank you, Mr. Chairman. And I thank you for
holding this nomination hearing. And I thank these two for
being willing to go through the process. Quite often, not just
in this committee, but in other committees, I wonder why
anybody ever volunteers to take one of these appointments that
has to go through the nomination process.
But today we will be considering the President's nominees
for two of the most significant labor positions in the Federal
Government, that of the Deputy Secretary of Labor and that of
the Solicitor of Labor. The individuals who fill these
positions will be crucial in assisting the Secretary of Labor
in implementing and overseeing our Nation's key labor and
employment laws.
Last year, we passed two monumental pieces of legislation
that were enacted into law: the Mine Improvement and New
Emergency Response Act, to the MINER Act, and the Pension
Protection Act. These laws were the first comprehensive update
of Federal mining and employee retirement benefit laws since
the 1970s. Currently, the Department of Labor is working on
implementing both through regulations, guidance, and
enforcement oversight.
The Deputy Secretary of Labor and the Solicitor of Labor
will be instrumental in ensuring that these laws and other key
laws overseen by the Department are properly implemented and
given the appropriate regulatory and enforcement oversight.
Individuals seeking these two prominent positions must possess
the skills, qualifications, and knowledge to carry out these
duties.
Mr. Radzely is well known to the committee, as he's
successfully served as the Solicitor of Labor for the past 4
years. And Mr. Jacob previously served as Mr. Radzely's Deputy
Solicitor for nearly a year and a half, and has served in other
jobs throughout the Administration. This hearing will give both
nominees the opportunity to outline their skills and expertise
for these two highly prominent labor positions.
The committee has received a letter of support for Mr.
Radzely from the Sergeants Benevolent Association of New York
City, which is the police labor organization, representing over
10,000 active and retired New York City police sergeants. And I
request that this letter be made a part of the hearing record.
The Chairman. It'll be so included.
[Editor's Note: The information previously referred to may
be found in Additional Material.]
Senator Enzi. Again, thank you for holding this hearing,
and I look forward to the hearing with the nominees as they
present their qualifications before the committee.
The Chairman. Thank you very much.
Senator Murray, who's the chairman of our subcommittee,
intended to be here, but was unable to. They're in a
conference.
Senator Brown will be representing, and we'd welcome it, if
you wanted to make a brief comment.
Opening Statement of Senator Brown
Senator Brown. Thank you, Mr. Chairman.
In considering our nominees today, we have to do so in the
context, I believe, that Senator Kennedy suggested, in the
context of Department of Labor's overall performance over the
past 7 years or so. As we've seen throughout this
Administration, there's a trend of appointing officials who
don't appear to believe in the laws that they're asked to
protect, which seems to be the case, as we've seen, this week,
with the Consumer Product Safety Commission.
New and emerging challenges face the Nation's workforce,
and how well the Federal Government helps workers meet these
challenges will define our record generations from now. In my
view, we're way behind in meeting these challenges.
Particularly troubling to me are three areas. First is, as
the chairman said, the record of hostility protecting overtime
and wages. Since the Wage and Hour Division has been
underfunded, it shouldn't be surprising that enforcement is
failing, the actual number that the enforcement--enforcement of
these provisions, is falling. The annual number of concluded
wage-and-hour cases has declined 31 percent since 2001, while
the number of complaints has remained the same. There have also
been failures by the Administration to protect the rights of
men and women rebuilding the Gulf Coast by suspending the
prevailing wage laws under Davis-Bacon.
Second, the Department has suspended OSHA enforcement after
catastrophes, leaving workers without protections from serious
hazards.
And, third, the Department's attempts to weaken the Family
Medical Leave Act. In an economy where inequality is rising,
and middle-class families are struggling to get by, families
often need two salaries just to afford life's necessities.
Congress intended the Family Medical Leave Act to be used for
unscheduled, intermittent needs of workers, yet this
Administration has continually altered the treatment of
intermittent leave under the Family Medical Leave Act.
The list goes on and on, but I will not do that.
What I'm interested in hearing from our nominees is not
just why they believe they're qualified--and they are--I'd also
like to know what attracts them to defending the rights and
protections of hardworking men and women. I hope to determine
from your answers this morning whether you will fight to
advance the well-being of workers or to continue to undermine
their well-being.
I look forward to hearing from you today.
Thank you, Mr. Chairman.
The Chairman. We welcome Howard Radzely, who has served at
the Department of Labor since 2001, as Deputy Solicitor of
Labor, Solicitor of Labor, and currently as Acting Deputy
Secretary of Labor. Prior to his time in public service, he was
in private practice with Wiley, Rein & Fielding, a labor and
employment law firm here in Washington. Mr. Radzely holds an
undergraduate degree from the University of Pennsylvania's
Wharton School of Business, law degree from Harvard. He is
joined today by his wife, Lisa, his young sons, Brendan and
Devin, and his parents, Ed and Jackie Radzely, and his mother-
in-law, Janet Burton.
I believe Brendan was here the last time at your
confirmation. I believe that was 5 years ago. And if our
records are correct, I commented on what a patient and well-
behaved young man he was----
[Laughter.]
The Chairman. [continuing]. Being able to last through
these hearings. So, we welcome him back. I'm sure we'll have as
successful a hearing today, as well, as then. But we're glad
that you have the members of your family with you.
Gregory Jacob has recently served as Special Assistant to
the President for Domestic Policy. Prior to joining the White
House, Mr. Jacob served as the Deputy Solicitor of Labor, as an
attorney in the Office of Legal Counsel, Department of Justice;
he received a bachelor of arts from Amherst College, and a law
degree from the University of Chicago. He is joined here today
by his parents, Fred and Debbie Jacob, and his brother, Scott.
Today's a family affair.
Mr. Radzely, we look forward to hearing from you.
STATEMENT OF HOWARD RADZELY, OF MARYLAND, NOMINEE TO BE DEPUTY
SECRETARY OF LABOR, U.S. DEPARTMENT OF LABOR
Mr. Radzely. Thank you, Mr. Chairman, Senator Enzi, and
distinguished members of the committee. It is an honor to
appear before you today as you consider my nomination to be the
Deputy Secretary of Labor.
At the outset, I would like to express my gratitude to the
President of the United States for nominating me for this
position, and to the Secretary of Labor, Elaine L. Chao, for
the support and confidence she has demonstrated in recommending
me for this position.
I would also like to thank the committee for considering my
nomination and holding this hearing today during this very busy
time.
Finally, I would like to thank my wife, Lisa, my 7-year-old
son Brendan, and my 3-year-old son Devin, who are with me
today, for all the sacrifices they have made to allow me to
serve in the government for the past nearly 6\1/2\ years, and
for the sacrifices they will make if I am confirmed to be the
Deputy Secretary of Labor.
The Department of Labor arguably has one of the broadest
reaches of any domestic department and handles issues of
importance to nearly every American, from youth to retiree. The
Department regulates a workforce of over 150 million workers,
and oversees programs for Americans who are hoping to acquire
additional skills and education to either further or change
their careers. The Department enforces statutes and regulations
ranging from child labor protections to provisions that protect
American workers, retirement security, and everything in
between.
I see the Department of Labor as having one of the most
important missions in the Federal Government. The Department
has an extremely critical task to help prepare the workforce
for the challenges of the 21st century. Through the Employment
and Training Administration, the Veterans Employment and
Training Service, the Office of Disability Employment Policy,
the Women's Bureau, and Job Corps, DOL provides programs and
assistance to help Americans obtain the skills needed to
succeed in today's economy.
For those already employed, the Department has enforcement
functions in a wide range of areas to help protect workers.
Among the Department's many important tasks are enforcing
health and safety laws, wage and hour laws, the Family Medical
and Leave Act, Executive Order 11246, the Employee Retirement
Income Security Act, numerous whistleblower laws, the Labor
Management Reporting and Disclosure Act, and the Uniform
Services Employment and Re-Employment Rights Act.
The Department also has a number of critical additional
tasks carried out by agencies such as the Office of Workers
Compensation Programs, the Bureau of Labor Statistics, and the
Bureau of International Labor Affairs.
Since coming to the Department of Labor, in June 2001, and
serving as Deputy Solicitor, Acting Solicitor, and Solicitor, I
have worked with the dedicated career attorneys in the
Solicitor's Office to use the Department's resources and
enforcement tools effectively. Since becoming designated Acting
Deputy Secretary earlier this year, I have had the opportunity
to work on many important issues in a new capacity.
If confirmed as Deputy Secretary, I would function largely
as the chief operating officer of the Department. I am prepared
to help the Department advance its important mission in a new
role. I am eager to continue working with the career
professionals at the Department on management, program, and
regulatory initiatives to serve American workers.
I am also committed to seeing that the Department
implements in a timely manner the new laws for which the
Department has responsibility, including the Pension Protection
Act and the MINER Act, both enacted into law last year. Many of
the requirements of these new statutes have already been
implemented, and the Department is preparing to complete a
number of additional critical tasks over the coming months.
In sum, as Acting Deputy Secretary, and if confirmed as
Deputy Secretary, I understand and appreciate the great
responsibility I bear. Thank you, again, for considering my
nomination, and I would be happy to answer any questions that
you may have.
The Chairman. Fine.
Mr. Jacob.
STATEMENT OF GREGORY JACOB, OF NEW JERSEY, NOMINEE TO BE
SOLICITOR OF LABOR, U.S. DEPARTMENT OF LABOR
Mr. Jacob. Thank you, Mr. Chairman.
Mr. Chairman, Senator Enzi, and distinguished members of
the committee, it is an honor to appear before you today as you
consider my nomination to be Solicitor of Labor. I am eager to
get to work enforcing the Nation's labor and employment laws on
behalf of the job seekers, wager earners, and retirees of the
United States, and I am deeply grateful for the committee's
expeditious scheduling of today's hearing.
I want to thank the President of the United States for
nominating me for the position, and Secretary Elaine L. Chao
for the confidence she has shown in me by recommending me for
the position.
Finally, I want to thank the family members and friends who
are here supporting me today.
I have been blessed, in my career as an attorney, with
diverse experiences that have been both challenging and
rewarding. After a time in private practice, I decided to
embark upon a career of public service. My first position with
the Federal Government was as a career attorney in the Justice
Department's Office of Legal Counsel. My first day was the
Monday after September 11. I remember thinking that morning, as
I walked through the Department's massive front doors on
Pennsylvania Avenue, that, at a time when the entire Nation was
hurting and every citizen was looking for a chance to
contribute, I had been given a rare and awesome opportunity,
but also entrusted with a heavy responsibility, to fairly and
faithfully administer the law, and to advise other Federal
agencies on how to do the same.
I later served as Deputy Solicitor at the Department of
Labor, a position that expanded my legal horizons, not only to
the management of an office of more than 425 attorneys and
nearly 600 employees, but also to the application and
enforcement of a body of laws that touch and affect the lives
of virtually every worker in America.
Most recently, I served at the White House as Special
Assistant to the President for Domestic Policy, with a
portfolio that included justice and immigration issues. During
the recent immigration debate in Congress, I got to spend a lot
of time here at the Dirksen building and over at the Capitol,
and had the pleasure of getting to know many members of your
staffs.
As a government official, I believe it is important to stay
directly in touch with the impact that government policy has on
ordinary citizens. Accordingly, while serving in each of the
positions I have held with the Federal Government, I have
simultaneously been involved in one or more cases outside the
government on a pro bono basis. I entered each of these cases
through the auspices of Justice for Children, a nonprofit
organization that seeks to provide legal representation to
protect children who are the victims of physical or sexual
abuse. This work, which has been among the most meaningful of
my career, has kept me actively involved in both trial and
appellate litigation, and has given me the opportunity to
personally get to know some truly courageous individuals,
parents who persevere through every difficulty and frustration
to protect their children from the horrible specter of abuse,
and men and women who have dedicated their lives to providing
those families the support and resources they need to succeed.
In addition to my work experience, I have tried to remain
academically engaged, as well. I have written one law journal
article each year for the last 5 years, and, since early 2002,
I have served as editor and then senior editor for the law
journal The Green Bag.
I believe my tripartite career of public service, regular
pro bono representation, and scholarly endeavor has prepared me
well for the challenges of running the Solicitor's Office. I
like to think of the Office of the Solicitor as the Labor
Department's muscle on the ground, playing a critical role in
helping the Department fulfill its mission to foster and
promote the welfare of the job seekers, wage earners, and
retirees of the United States.
Inspectors and investigators alone cannot secure full
compliance with the law. If workers are to truly enjoy the
rights and protections Congress has established for them, the
Department's enforcement agencies must be backed by active and
dedicated lawyers who stand ready to prosecute violators.
Every area of law that the Solicitor's Office enforces is
important. Nevertheless, there are some enforcement areas that,
if confirmed, I would make particular priorities:
Wage and hour enforcement in low-wage industries, such as
poultry and agriculture, where workers tend to be least able to
defend their statutory rights, has long been an enforcement
priority for the Department, and I would continue that
emphasis.
Recent tragedies have highlighted the incredible importance
of enforcing safety and health laws, where the very lives of
workers are at stake.
In the area of Federal contract compliance, I believe it is
critical that the Solicitor's Office expand on its record
recoveries by continuing to bring cases against those who fail
to comply with the law and maintain deterrence through vigorous
enforcement. Aggressive USERRA enforcement is particularly
important, in light of the continued deployment of our troops
abroad.
The reach of the Solicitor's Office is co-extensive with
that of the Department, and its work must be excellent in every
area that it touches. No single attorney can be an expert in
all the areas of law that fall within the purview of the
Office, but I believe my broad experience as Deputy Solicitor,
assisting in the enforcement of virtually all the areas of law
entrusted to the Department, combined with my respect for, and
good working relationships with, the Department's knowledgeable
and seasoned career attorneys, have prepared me well to serve
as Solicitor of Labor. If confirmed, I am confident that my
background will allow me to hit the ground running in fairly
and vigorously enforcing the Nation's labor and employment
laws.
Thank you, again, for considering my nomination.
The Chairman. Thank you very much.
We recognize--Senator Enzi has some questions, and also
some schedule conflicts, and so, we'd welcome his questions at
this time.
Senator Enzi. Mr. Chairman, I thank you so much for the
courtesy. I have to help solve a couple of other problems, but,
I'm so pleased that both of you are willing to do this.
Mr. Jacob, that was a tremendous mission statement that you
just presented, and I look forward to watching you fulfill
that. I particularly like the phrase that you will be the
``muscle on the ground.'' That's good.
For both of you, I have a question. This committee is
rightfully proud of both the MINER Act and the Pension
Protection Act that we did last year. I mentioned that the
MINER Act was the first major change in mining law in 28 years.
And, normally, major changes around here only take 6 years. And
this committee happened to do it in 6 weeks, and it passed both
houses unanimously, and we're very interested in providing the
oversight on that and to make sure that, if there are any
additions that need to be done, that we can do them. But part
of the critical part of that is the enforcement. And I'd like
to know what each of your personal experience has been with the
Mine Safety and Health Act and with ERISA, and would like to
know what you think the Deputy Secretary and the Solicitor
should be doing to ensure these laws are enacted in a timely
and effective manner, and also, what other priorities that you
plan to be focusing on for the next 2 years.
Mr. Radzely.
Mr. Radzely. Thank you. I appreciate the opportunity to
address that.
I've had a lot of experience with ERISA, in general, during
my time in the Solicitor's Office. And, actually, one of the
things that I focused on, Senator, during my time, was a series
of amicus briefs on remedies under ERISA. We noticed a
disturbing trend of attempts to limit the remedies under ERISA.
And so, we have filed numerous amicus briefs on behalf of
former participants, arguing that they have standing to be able
to sue in court. We've also filed briefs arguing that the
phrase ``appropriate equitable relief'' under the act includes
money--monetary recoveries against breaching fiduciaries--and
another area where some have argued that, if you don't sue on
behalf of every person in a plan, you don't have a right to
sue, so we argued that individuals or groups can sue on behalf
of the plan, even if not everyone was affected by the
particular violation. So, I've spent a lot of time in various
areas of ERISA enforcement, but that's one particular area.
And, as Deputy Secretary and as Acting Deputy Secretary, I
have, and I will, if confirmed, work with the Employee Benefits
Security Administration to help see that they timely implement
the many regulations that are required as a result of the
reforms Congress passed and the President signed last year.
In terms of the MINER Act, I've worked closely, while I was
in the Solicitor's Office, with the career professionals in the
division that handles mine safety legal work in the Solicitor's
Office. We started, for example, last year a scofflaw
initiative, in an attempt to go after companies and/or
individuals that hadn't paid their fines. And so, I've had a
lot of experience working on the Mine Safety Act, and, as
Acting Deputy Secretary, and, if confirmed, as Deputy
Secretary, will work with MSHA to ensure that they implement in
a timely fashion all of the provisions of the MINER Act.
Senator Enzi. Thank you.
Mr. Jacob.
Mr. Jacob. Thank you, Senator.
As Deputy Solicitor, I was involved in enforcement
activities with respect to both enforcement of the Mine Act and
enforcement of ERISA and the activities of the Employment
Benefit Safety Administration.
With respect to the Mine Act, I reviewed a number of briefs
and helped to make sure that the Department was making the most
effective enforcement arguments possible to ensure that our
views of the law were being upheld. I have to say, with respect
to the MINER Act, which Congress passed last year, in reading
some of the early briefs, I thought it was a typo, what the
penalty levels were, and I know that the MINER Act has
increased those penalty levels. I think that's appropriate and
will help the Department ensure that it's protecting workers
adequately.
Now, with respect to ERISA, part of the problem with being
Howard's deputy during that time is, there's something known as
``me too'' to the amicus program. I did a lot of work with
appellate briefs during my time there, and worked on ensuring
that workers who were plan participants were able to recover
their rights, even if not the entire plan was affected by a
fiduciary breach, and also ensuring that they were able to
recover losses as equitable relief. And so, both of those
issues are now before the U.S. Supreme Court, in the LaRue case
and I believe that the U.S. Supreme Court will ensure that the
Department's views are upheld in favor of the Department's
ability to effectively enforce the law.
Thank you.
Senator Enzi. Thank you. And my time is expired here. I
have several other questions, and I would ask to be able to
submit those, and would ask for your speedy answers.
The Chairman. Fine.
Senator Enzi. Thank you, Mr. Chairman----
The Chairman. Thank you.
Senator Enzi [continuing]. For your courtesy.
The Chairman. Good. Thank you. Thank you very much, Senator
Enzi.
I want to direct your attention to the issues on wage and
hour overtime. And I'm going to put a couple of charts up here
that kind of summarize a bit about where we find ourselves.
This is the enforcement of wage and hour laws. This is from
2002, number of wage and hour investigators has declined rather
dramatically. This is some 25 percent from 2002 through 2007.
Then, if you look at another indicator on this, you'll find
out that employers don't face the real penalties for violating
the wage and hour laws. Lawbreaking employers are facing fewer
penalties for violating workers' rights. Civil penalties are
down some 25 percent from 2001 to 2006.
And then, Department of Labor enforcement efforts in low-
wage industries are inadequate. These are the garment,
agriculture, and healthcare industries. From 2001, in the
garment, agriculture, and health--you'll see the number of
completed cases declined significantly under this
Administration's watch. This is all data from the Department of
Labor.
The annual number of completed wage and hour cases--as I
mentioned, declined 31 percent, while the number of complaints
filed has remained about the same. As we mentioned, the trends
are even starker in the low-wage industries. I appreciate Mr.
Jacob indicating this is going to be a priority of his. While
DOL claims to spend 60 percent of its enforcement hours at low-
wage industries, according to DOL's own data there's been a 68-
percent decline in completed cases in the garment industry, 39
in agriculture, 32 in the health industry. So, we have every
reason to believe that there's still rampant lawbreaking that
persists in these industries. The Brennan Center, for example,
in its recent study, examined 13 low-wage industries in New
York City, found systematic patterns of lawbreaking, including
wage theft, overtime violations, and forcing employees to work
off-the-clock.
So, Mr. Radzely, how do you explain the disturbing decline
in the number of wage and hour cases completed by the
Department? And what do you plan to do, if anything, to reverse
the decline?
Mr. Radzely. Mr. Chairman, I appreciate that.
In terms of low-wage industries, I think one of the things
Wage and Hour is doing, and plans to do in the coming year, is
expand the number of low-wage industries that they looked at. I
think previously the focus has been in three areas: ag,
healthcare, and garment. And one of the things I believe Wage
and Hour is doing is trying to expand and broaden the
industries into other ones, like daycare, restaurants, guard
services, hotel and motel, janitorial services, temporary help,
other low-wage industries, where we tend to find violations.
And, in fact, in fiscal year 2006 the back wages collected in
these low-wage industries, combined, increased by 10 percent.
This is going to continue to be a focus for myself and for the
Department.
The Chairman. Well, it's difficult for us to put this into
some proportion when we see what the record has been in recent
time. During the Clinton administration, the Department
conducted extensive surveys to determine the level of Fair
Labor Standards Act compliance in selected industries with
changing workforce demographics or the poor enforcement
history. They did surveys with the industries.
Now, under your Administration, under the current
Administration, the Department has discontinued these surveys.
So, if confirmed, are you going to commit to re-instituting the
industry compliance surveys, where there's at least evidence
that existing enforcement efforts aren't working?
Mr. Radzely. Mr. Chairman, I'm not familiar with what
industry surveys Wage and Hour does now, but I would certainly
be happy, as Acting Deputy Secretary, and, if confirmed, to
look into that and get back to the committee.
The Chairman. I don't know what the reasons were when they
dropped that in the Department, but it was an attempt to try
and do the surveys for these different industries so that they
could be prioritized, and they dropped it, and then, we see a
corresponding reduction, in terms of the compliance in these
other areas. So, if you'll take a look at that, I'd be
interested in your view.
The Chairman. Mr. Jacob, what do you believe are the
reasons behind the decline in the number of actions completed
by the Department? And, if confirmed, what steps would you take
to increase the Department's enforcement efforts?
Mr. Jacob. Mr. Chairman, as I mentioned in my opening
statement, I believe that vigorous enforcement in this area of
low-wage industries is absolutely essential. We're talking
about workers who work in these industries who aren't always
well apprised of what their legal rights are, and it's
particularly appropriate for the Department to step in, in
those cases, and ensure that it is making sure that their
rights are fully protected.
I certainly will consult with the administrator of the Wage
and Hour Division to see how the cases are being handled at
this time. My goal, certainly, as Solicitor, would be to take
every case that was referred to us by the Wage and Hour
Division that was well supported, and ensure that we provided
all of the legal support necessary to ensure that the rights of
workers were protected.
Thank you.
The Chairman. But, do you have any kind of reaction, when
you see these kinds of figures by the Department? And give us
any understanding of why this kind of trend--we've listened to
your statements and comments about what you're going to do in
the future, but we're asking about these trends that we have
seen in the recent time by the Department, and we're trying to
find out how we should evaluate your own performance against
the background of these indicators. What kind of confidence can
we have, in the future, that you're going to be able to, or
willing to, see the kind of protections which I think the law
requires and that we expect?
Mr. Jacob. Mr. Chairman, I know that the Department, last
year in the area of low-wage industries, had record recoveries
of about $50 million, which was up about 50 percent from 2001.
So, I know that we are making sure that, with respect to those
cases that are referred to us in the Solicitor's Office, that
we're doing everything that we can with them to secure the
fullest recovery we can on behalf of those workers.
I know that the Department has expanded its focus within
low-wage industries, from beyond the traditional agriculture/
healthcare sectors, to now include daycare, restaurants, and
others. So, whether that has affected the number of cases
within each particular industry as we've expanded the number of
industries we've focused on, I'm not entirely certain, but it's
certainly something that I would be happy to look into and
report back to the committee.
The Chairman. OK. I'm going to recognize Senator Brown and
come back to this. He has to preside over the Senate in a very
short time. So, we thank him, he's very involved in the
protection of workers. And we're----
Senator Brown. Thank you, Mr. Chairman.
The Chairman [continuing]. Very appreciative of all of his
good efforts in this area.
Senator Brown. Thank you, Mr. Chairman.
I mean, I want to support both of you. I am troubled,
though, by the history of the Labor Department the last 5
years. There's a chart that--Mr. Jacob, you said that you want
to continue this to be a priority enforcement, but how can
you--when the budget of Wage and Hour in the last--the
President's proposed budget for this year, compared to the 2001
levels, the Wage and Hour's gone down 1 percent; OSHA
enforcement, down 5 percent; and OLMS, which includes the work
you do on the LM-30, which I want to get to in a moment, has
gone up 52 percent. How can you even--I mean, convince me that
it has been a priority. You made the statement you want to
continue it being a priority. Just convince me of that, both of
you, that when budget figures speak so loudly to priorities, we
increase money for the war on terrorism, because we all agree
that's something we need to do. Many of us want to increase
money for children's health, because we believe in children's
health. What are those--don't those budget figures speak pretty
loudly? Why should I be convinced that you really do want to
enforce Wage and Hour and OSHA and move in that direction?
Mr. Radzely. Senator, I see the chart, but I'm not familiar
with where you're getting those numbers from, because my
understanding was the Department saw increases in, not only
OLMS, but also in Wage and Hour and OSHA, and, I believe, in
this year's budget has sought an increase for additional Wage
and Hour inspectors, as well. So, my understanding is, the
Department has----
Senator Brown. This is----
Mr. Radzely [continuing]. Sought----
Senator Brown. I'm sorry to interrupt, but I only have 5
minutes. I apologize. It's possible that the President
increased its budget this year, but it's been in context of
having cut the budget over the last 5 years. So, if, in fact,
there is now more of an interest than before, there isn't much
more of one, because it's still been a decrease in the budget
over the last 7 years, when the Labor Department's entire
budget has obviously gone up. OLMS has jumped by half, and two
of the most important functions of this agency, the agency that
you want to continue to be part of under Elaine Chao, who makes
these requests--I don't know if it's her priorities or the
President's priorities or your priorities, but they don't speak
very loudly about your really wanting to protect workers.
Mr. Radzely. If I can make two points, I do believe that
the actual money the President requested this year is
significantly over the amount in 2001, but I'd be happy to look
into that.
Senator Brown. These are----
Mr. Radzely. But----
Senator Brown. These are inflation-adjusted, so, they're in
real dollars.
Mr. Radzely. OK.
Senator Brown. So----
Mr. Radzely. And I----
Senator Brown. But, either way, you look at the huge
difference there----
Mr. Radzely. I think, a couple of things. When I was in the
Solicitor's Office, I did not hesitate to ask for additional
resources. And, in fact, I think we would have had additional
resources in the Solicitor's Office last year, but for the
year-long CR. And, again, this year there's a significant
increase in requests in the Solicitor's Office to help
enforcement, because, in any enforcement program, it's critical
that you have lawyers to back up the inspectors and bring the
cases that are contested.
In addition, I think the reason the OLMS figure is so large
is that the budget had been significantly cut. I think they
were down by hundreds of employees from what they had
previously been, to the point where there had not been, I
think, a single audit of a large union.
But, I want to be clear, my priorities are that every
program the Department has is important and needs to be
vigorously enforced. And, I think, while I was Solicitor of
Labor we took a number of steps in each of the program areas,
including OSHA and Wage and Hour, which demonstrates my
commitment to that.
Senator Brown. I am not in any way personally questioning
the motives of either of you. I do question the philosophy of
your boss, whichever of your bosses--I mean, whether it's the
President or whether it's Secretary Chao, and the direction
which they take.
So, let me just shift, for the last question. What's the
impetus behind the LM-30 changes? A question for either of you.
Mr. Radzely. I think OLMS took a look at their forms, and
started by looking at the LM-2, which hadn't been updated, I
think, in some 40 years or so--and, similarly with the LM-30--
that it was a confusing form, relatively few people filed it,
OLMS worked with, I believe it was, the AFL-CIO to get
individuals to file it under a grace period. And I think their
experience was that it was a confusing form, it didn't provide
useful information, it was difficult to fill out, and that OLMS
wanted to revise the form to provide meaningful information to
union members so they can exercise their rights under----
Senator Brown. So----
Mr. Radzely [continuing]. The law.
Senator Brown [continuing]. A ``confusing form'' would lead
me to think you would want to shorten it. The form now has gone
from 2 pages to 9 pages; instructions, from 9 pages to 17
pages. Does that connote clarity?
Mr. Radzely. I believe it does. I think a lot of the
transactions, even folks who filed it--and I think there are
about 100 filings a year, before the grace period, and many of
them had trouble filing them. I think there were a number of
instances where they were filed wrong. And these are people
that obviously were trying to comply with the law. So, I think
OLMS felt the need to make the form clear, but also to provide
meaningful information in the 21st century economy, with a
sophistication of transactions, to enable union members to
exercise their rights under the act.
Senator Brown. Newt Gingrich, back in 1992, asked for a
similar--I know it's ancient history, but he sent a memo to the
last Republican administration's Department of Labor chair
calling for more audits and more--some of us would say
``harassment,'' and others could say ``oversight''--of these
mostly volunteer or not well-paid union officials. He said,
``We should weaken our opponents and encourage our allies.'' I
just find it curious that this is an Administration that does
no oversight and no recordkeeping and no auditing, or very
little, of contractors spending billions of dollars in Iraq,
and then you put this kind of effort into disclosing mortgages
and car payments and all the information that volunteer union
activists have to disclose about their financial lives. And I
just find that--I mean, I know you're not in charge of auditing
Blackwater or Halliburton or Bechtel or the hundreds of other
companies that have squandered and lost billions--tens of
billions of dollars in Iraq, but I just find the inconsistency
curious, that this is the group you want to go after in the
Department of Labor, especially when they're volunteers, to
disclose all of this financial information.
Mr. Radzely. Senator, I think OLMS tried to balance the
need for information against the burden on union officials; and
so, for example, increased the de minimis exemption to $250.
But I will say, as I indicated earlier--and Secretary Chao
feels the same way--each of the laws within our jurisdiction
needs to be vigorously enforced, and we've taken similar
vigorous enforcement efforts, for example, under ERISA, which
is probably the closest compare there to OLMS and the
Department of Labor, and had record recoveries there in recent
years.
Senator Brown. OK. Thank you very much, Mr. Radzely.
The Chairman. Thank you very much, Senator Brown.
Just to come back, Mr. Jacob, on the issue of the back pay
and the indication of the recovery of the back pay, which you
mentioned has increased over the period of these last few
years, I think that's understood, and certainly valuable and
useful. But, when the Department, as has been reported, settles
easy cases quickly, that's not really deterring the employers
from violating the law. So, it's critical to remember that the
back pay is just giving workers what they were owed in the
first place, it's not really punishing the employers for
breaking the law. And, when you look at the monetary penalties
assessed by the Wage and the Hour Division, that number
actually decreased substantially last year. Do you know why
that was?
Mr. Jacob. Mr. Chairman, I do not know why there was a
decrease, but it is certainly something that I would look into.
I think that it is important that the Solicitor's Office use
all of the tools in its arsenal to defend the rights of
workers, including not just recovery of back pay, but also
civil monetary penalties, where that's appropriate. And I would
commit to assessing that in every case----
The Chairman. All right.
Mr. Jacob [continuing]. That is brought to my attention.
The Chairman. Let me go through some other particular
areas. One, tip workers. Mr. Radzely, while you were serving as
the Solicitor, were there any efforts to improve enforcement of
wage and hour laws among restaurant workers? Has the Department
undertaken any special initiatives to educate workers in this
industry about their rights? We know, from the recent study in
New York City, almost 60 percent of tip workers are reported of
being a victim of overtime pay violations. In a series of
articles, the New York Times recently reported even more
appalling abuses: restaurant delivery workers being paid as
little as $1.40 an hour, far less than the Federal minimum
wage.
Mr. Radzely. Senator, yes, the Department is focused on the
restaurant industry. In fact, I think, the largest industry in
which we do low-wage-directed cases or do low-wage cases--I
believe most of them are restaurants. In fact, out of the some
11,000 cases in the last fiscal year, some 4,300-plus were
actually in the restaurant industry. So, this is a focus of
Wage and Hour, and I would expect it to continue to be a focus
of Wage and Hour and its low-wage-industry effort in the coming
year.
The Chairman. Mr. Jacobs, if you're confirmed as the
Solicitor General, Labor, what steps would you take to improve
the enforcement of the wage-and-hour tipped employees? Would
you address the unique enforcement challenges facing that
population, which is particularly vulnerable?
Mr. Jacob. Mr. Chairman, I would. I believe that it's a
particularly important area to ensure that we are vigorously
enforcing, and I would certainly consult with the career
attorneys in the office and with the administrator of the Wage
and Hour Division to determine the most effective way to
address the issues that you've raised.
The Chairman. Let me move to the safety and health issues
that we've had. In the aftermath of 9/11, Hurricane Katrina,
brave Americans answered the call to help fellow citizens.
These workers face serious risks to their health. The New York
City firefighters, the police officials, construction workers
were immersed in the clouds of hazardous dust and debris. Gulf
Coast reconstruction workers faced a new toxic stew of mold and
asbestos. After both disasters, the Bush administration
suspended OSHA enforcement--for approximately 9 months at
ground zero, and almost a year in New Orleans. Workers are now
paying a high price for the Administration's neglect. Tens of
thousands of ground zero workers have terrible respiratory and
gastrointestinal issues which could have been prevented, I
believe, if OSHA had enforced its standards, requiring personal
protective equipment, like respirators. We've heard no such
problems in California, where thousands of firefighters
recently battled the terrible wildfires.
Time is enormously important, in terms of these disasters.
I mean, 1 or 2 days, or 3 days, understandable, but 8 or 9
months--does that make sense, when we're facing these kinds of
tragic circumstances, whether it is ground zero or whether it's
New Orleans, whether it is other kinds of disasters?
Mr. Radzely. Mr. Chairman, my understanding is, they did
not suspend enforcement, but they suspended directed
investigations. So, if there were complaint investigations and
were there any fatalities in the affected zone, OSHA would, and
I believe did, go out and investigate those, if there were any.
However, what they were focused on is making sure that the
workers had the protective equipment and were trained in using
it. In the case of ground zero, many of the workers, in fact,
were not within OSHA's jurisdiction, because they were local or
State workers, and they would have been workers that would not
have been within OSHA's jurisdiction to take enforcement
action, in terms of a directed investigation.
The Chairman. Well, there were still the suspension of the
requirements. In my understanding, New York City officials
repeatedly asked regional OSHA officials to enforce the
respirator standard, because they were concerned about workers'
health. I thought the New York officials made the argument to
OSHA that only the fear of citations would motivate employers
to make sure that workers had respirators. And that was one of
the powerful examples.
It seems to me that, in these kinds of circumstances, the
workers who are most vulnerable and--disaster workers are the
most vulnerable, they need the greatest kinds of protections,
rather than the suspension of the protections. What is your
view? I mean, generally speaking.
Mr. Radzely. Mr. Chairman, I think the Department should do
everything it can in those situations to protect workers. And
if that means devoting additional resources to working with
employees, unions, employers cooperatively to make sure that
they have the necessary expertise, in terms of working in a
very dangerous situation, both in terms of possible
respirators, but many other types of potential injuries and
illnesses, which, my understanding was, were avoided after 9/
11, despite the significant dangers to workers, of slipping,
falling, you know, possibly getting killed in the recovery
effort. But I think there needs to be a balance, and I think
the tradition in OSHA has been to focus on complaint and
fatality inspections, while working with the first responders,
and not doing directed investigations during that period of
time.
The Chairman. Well, it seems that it is particularly
important that the Department enforce the OSHA standards,
because, in times of crisis, the workers obviously can't
enforce the law themselves.
Let me ask you, Mr. Radzely, about the Department. Why did
the Department deny the petition for an emergency temporary
standard for pandemic flu?
Mr. Radzely. Mr. Chairman, the Department denied the
standard--emergency temporary standard for pandemic flu because
the Acting Solicitor in the Solicitor's Office, determined that
it did not meet the legal requirements for an emergency
temporary standard. But the Department is, and has been for a
number of years, taking steps to work and be prepared for a
pandemic flu, should one hit. They have put out guidance to
employers and employees on steps to take. We are currently
working, and expect to release in the near future, a respirator
stockpiling guideline. Numerous materials are available to
assist employees and employers. And, as well, there are many
standards that would come into play, should a pandemic hit--for
example, the respirator standard and others--that could be
used, and would be used by OSHA, were a pandemic flu to hit.
The Chairman. Well, CDC actually recommended exposure
controls, in addition to the use of respirators. And those
other measures aren't covered by the OSHA's action, are they?
Mr. Radzely. I'm not intimately familiar----
The Chairman. OK.
Mr. Radzely [continuing]. With the CDC standards.
The Chairman. Also, why is the Department taking so long to
issue the specific standard against TB in the workplace. Do you
know why?
Mr. Radzely. As I recall, Senator, the Department does have
an enforcement program in TB, and has issued a number of
citations, I believe, under the general duty clause, but I'd be
happy to look into that----
The Chairman. Yes, please.
Mr. Radzely [continuing]. And get back to you.
The Chairman. Also, about diacetyl, why did the Department
deny the petition for a temporary standard for that, do you
know?
Mr. Radzely. Mr. Chairman, I think, for similar reasons,
that it did not meet the legal test for an emergency temporary
standard. But the Department is taking a number of actions on
diacetyl, as well. In addition to issuing a safety and health
information bulletin, engaging on a national emphasis program,
the Department also recently announced that it was engaging in
rulemaking on the issue, and had a stakeholder meeting, I
believe it was last month or the month before, to begin the
process.
The Chairman. Yes. I think the point that is of enormous
concern to the American people--that is, if the pandemic flu
isn't a potential emergency, what is?
Mr. Radzely. Senator, we believe it's a potential
emergency, and we are taking steps to be very proactive. In
fact, I led a tabletop exercise at the Department just recently
to test our preparedness and what we needed to work on and to
improve. So, we are taking numerous steps to be prepared for a
pandemic flu, should one hit.
The Chairman. Well, the question is, will it be too late to
issue the standard? Is there any evidence that employers are
voluntarily complying with any standards now on pandemic flu?
Mr. Radzely. The entire Administration is focused on
working on this issue, and we are working with outside groups,
in terms of, as I said, stockpiling respirators, as well as
providing numerous materials to guide them on steps to take
now, rather than waiting until a pandemic flu hits.
The Chairman. What about the protections for workers and
first responders? We have some biologic or chemical kind of--I
mean, if we have some kind of an attack--what are we doing to
make sure that workers that we're going to send out as the
first responders are going to have the kind of protections that
they're going to need?
Mr. Radzely. Again, I think, depending on what the hazard
is, an assessment will have to be made about what is necessary
to protect the workers, and OSHA will work with the affected
first responders, State agencies, etc, to respond to any such
incident.
The Chairman. What do you have, in effect, now to protect
those workers? Would you have any regulations or rules to
protect them now?
Mr. Radzely. Senator, there are numerous rules and
regulations that would apply, depending upon what the situation
is, from the respirator standard to hazardous communication,
etc. I think it would depend upon the particular disaster that
the first responders were responding to.
The Chairman. On ergonomics, it's obviously, a very
important worker safety problem in America today, that affects
hundreds of thousands of workers every year. After the
regulations were withdrawn, the Department of Labor announced
that it would issue voluntary industry-specific guidelines to
help employers prevent ergonomic injuries, but, since that
time, the Department has only completed three sets of
guidelines, covering only 5.3 million workers. The original
regulations would have covered over 100 million workers. So, 5
years have passed, Mr. Radzely--they've passed since the
Department announced its plan. Why has the Department finalized
only 3 of the 16 guidelines it promised? If you are confirmed,
will you commit to issuing the rest of the guidelines before
the end of the Administration? And how can we expect employers
to protect workers if the Department fails to even issue the
voluntary guidance?
Mr. Radzely. The Department's doing a number of things in
the ergonomic area. First of all, the fourth guideline in
shipyards is now out for public comment, or recently just
finished public comment, and that will be finalized shortly.
OSHA is now currently considering the next sets of guidelines
that it wants to focus on. In addition, earlier this year, OSHA
announced a policy of following up on the ergonomic hazard
alert letters it issued, to see if the employers have taken the
steps that were recommended in the letters; and, if not, we'll
evaluate those particular employers for citation. The
Department's overall approach to ergonomic injuries has
resulted, I think--between 2002 and 2005--the ergonomic injury
rate declined by 25 percent during this period.
The Chairman. Well, how many general duty citations for
ergonomic injuries have been issued over the last 2 years?
Mr. Radzely. I believe, since the Department announced its
policy, there have been 17, total, under the general duty
clause.
The Chairman. It's only 17 general duty citations total--
and only 8 in the 4 years, since you've been in, Mr. Radzely
and none in the last 2 years. These are the figures that we
have from 2001, 2002, 2003, 2004, and 2005. Your reaction, or
your response, on it?
Mr. Radzely. I think the ergonomic hazard alert letter
follow up policy which OSHA is embarking on will likely lead
them to evaluate a number of cases for possible citation and
referral to the Solicitor's Office for litigation.
The Chairman. But why hasn't OSHA still issued any
citations this year, do you know?
Mr. Radzely. Senator, I'm not aware, but I do know that
they're focused on the hazard alert letter follow up policy,
and that will be a big focus over the coming year.
The Chairman. OK.
On the issue of immigration--nice to see Mr. Jacob--I know,
who has not forgotten about our days on immigration, and we'll
be justified in the course of history. We have to take that
satisfaction.
[Laughter.]
The Chairman. It's quite clear about what the law is in the
circumstances where the undocumented, as I understand, are
picked up, and where there's a labor dispute, that there has to
be the resolution of the labor dispute. I think you're probably
familiar with this recent case in Tennessee. If confirmed, Mr.
Jacob, what steps would you take to ensure the violations of
the labor law--discovered by ICE--are thoroughly investigated
and pursued by the Department of Labor? And how can DOL and ICE
effectively communicate about labor law violations without
creating a disincentive for undocumented workers to report the
violations?
Mr. Jacob. Mr. Chairman, we have a memorandum of
understanding with ICE, at this time, that allows us to consult
about violation of the labor and employment laws that they may
happen upon, so that we can take those into account, refer
those to our enforcement agencies, and take appropriate
enforcement action. Of course, we also need to make sure that
we are not discouraging people from making reports of things. I
know that one of the things the Solicitor's Office confronted
when I was Deputy Solicitor was the--ICE using--pretending to
be OSHA enforcement officers.
The Chairman. Yes.
Mr. Jacob. And we strongly objected to that, and we have
worked with them to----
The Chairman. Yes.
Mr. Jacob [continuing]. That they, as a matter of policy,
do not do that anymore. So, I will certainly commit to you, if
confirmed as Solicitor, that I will continue to work with them
to ensure that undocumented workers are not intimidated during
the course of those investigations, so as to ensure that labor
and employment violations can be brought to our attention
freely so that we can enforce the law.
The Chairman. OK. Has an agreement been reached between ICE
and the Department to ensure that ICE officials can't pose as
Wage and Hour inspectors or MSHA inspectors or other DOL staff?
Mr. Jacob. Mr. Chairman, although I haven't been at the
Department for the last year or so, it is my understanding that
we do have such an agreement.
The Chairman. All right. Would you find out and let us know
about that?
Mr. Jacob. Yes, Mr. Chairman.
The Chairman. On the Uniform Service Employment and Re-
Employment Rights Act--we mentioned that in the earlier
comment--it protects the men and women returning from the
military service. With more than 500,000 members of the
National Guard and Reserve mobilized since 9/11, record numbers
of workers are facing potential discrimination when they
return. Unfortunately, GAO reports that the agencies charged
with enforcing USERRA, including the Department of Labor, have
been ineffective in assisting our returning service members.
For example, if DOL cannot resolve a Federal employee's claim,
the employee can ask DOL to refer his case to the Office of
Special Counsel for litigation, but GAO reports that, in half
of such cases, DOL failed to notify servicemembers of these
rights. In addition, over a year and a half DOL has referred
only six cases to OSC, and DOL recommended litigation in only
one case. Incredibly, their office took an average time of 247
days to review and refer each of these six claims.
So, Mr. Radzely, if confirmed, what actions will you take
to improve the Department's enforcement of USERRA? And what,
specifically, will you do to resolve these claims faster and
ensure that servicemembers are informed of their rights?
Mr. Radzely. Certainly, Mr. Chairman.
The Department has embarked, over the last number of years,
on an aggressive outreach program to inform returning
servicemen and servicewomen of their rights. I'm not familiar
with the GAO report you mention, but if the Department did fail
to notify servicemen and servicewomen of their rights to have
the case referred, that would certainly be something that needs
to be swiftly rectified, if it already hasn't been. And
servicemen and servicewomen need to know that. And we have
recently, last year, signed an MOU with the Department of
Justice, who handles the non-Federal cases, to more
successfully bring those cases, and are working closely with
the Office of Special Counsel, as well.
The Chairman. So, Mr. Jacob, don't you agree, 8 months is
far too long to review and refer the cases? And what'll you do,
as Solicitor, to reduce these waits? And what'll you do to
ensure the Department refers more cases for litigation?
Mr. Jacob. Mr. Chairman, it is my understanding that the
Department has already begun to look into this issue.
Certainly, if I am confirmed as Solicitor, I will do everything
I can to review the structure that exists right now, by which
cases are referred to us, and to see whether there are things
that we can do, from a management perspective, to ensure that
those referrals are done more expeditiously. And if there are
any places where we can trim that time down to make sure that
people have their rights enforced as quickly as possible, I
certainly believe that that's an important function for the
Solicitor's Office to fulfill.
The Chairman. I'm going to submit some questions to you,
and hopefully we'll get early answers and get real resolutions
for these, on your nominations.
But, I want to thank you very, very much for your
responses, congratulate you on the nominations, and thank you
for your willingness to serve. And we will be in touch with you
very soon, and we're grateful for your presence and for all of
the service that you've given in the past.
Thank you very much.
The committee stands in recess.
[Additional material follows.]
ADDITIONAL MATERIAL
Letters of Support
Sergeants Benevolent Association,
Police Department, City of New York,
New York, NY 10013,
May 31, 2007.
Hon. Edward M. Kennedy, Chairman,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC. 20510.
Dear Chairman Kennedy: On behalf of the Sergeants Benevolent
Association of New York City, a police labor organization representing
over 10,000 active and retired New York City police sergeants, I am
writing to respectfully request your favorable consideration of Howard
Radzely's nomination to be Deputy Secretary of the U.S. Department of
Labor.
Mr. Radzely has impeccable qualifications for this important
position. He graduated with honors from Harvard Law School and served
as a law clerk on the U.S. Fourth Circuit Court of Appeals and the
Supreme Court of the United States. Following his clerkship, Mr.
Radzely practiced labor and employment law for several years at a
highly-regarded Washington, DC. law firm before re-entering government
service.
During his tenure at the Department of Labor, Mr. Radzely played a
central role in re-drafting the nation's overtime laws. This effort
ensured overtime for many law enforcement officers in America and
specifically clarified the overtime rights of many police sergeants.
Mr. Radzely has also been aggressive in enforcing the overtime rights
of all workers, including poultry workers and other low-wage workers.
As Solicitor, Mr. Radzely also played a leading role in improving
the Wage and Hour opinion letter process. He ensured that improvements
to this process were not delayed by successive changes in leadership at
the Wage and Hour Division of the Employment Standards Administration.
His oversight of this process demonstrates the kind of managerial skill
required to be a successful Deputy Secretary of Labor.
The SBA has found Mr. Radzely to be an intelligent and hard working
public servant worthy of the positions of trust he has held and
deserving of confirmation to the position of Deputy Secretary of Labor.
Very Respectfully,
Ed Mullins,
President.
______
National Fraternal Order of Police ,
Washington, DC. 20002,
October 30, 2007.
Hon. Edward M. Kennedy, Chairman,
Hon. Michael B. Enzi, Ranking Member,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC. 20510.
Dear Mr. Chairman and Senator Enzi: I am writing on behalf of the
membership of the Fraternal Order of Police to advise you of our strong
support for the nomination of Gregory F. Jacob to be the next Solicitor
for the U.S. Department of Labor.
Mr. Jacob holds degrees from Amherst College and the University of
Chicago Law School, and served on the University of Chicago Law Review.
Prior to serving as Deputy Solicitor of Labor, he served for 1 year as
a judicial clerk for the Honorable Jacques L. Wiener, Jr. on the United
States Court of Appeals for the Fifth Circuit. He also served for 2\1/
2\ years as an Attorney Advisor in the Office of Legal Counsel (OLC) at
the U.S. Department of Justice. Mr. Jacob is currently serving as
Special Assistant to the President for Domestic Policy where he has
worked on the President's Prisoner Reentry Initiative, the Justice
Department's Initiative on Safer Communities, the Summit on School
Violence and implementation of the Combat Methamphetamine Act of 2005.
The FOP has worked closely with Mr. Jacob on several occasions,
most recently and notably on issues surrounding the administration of
the Hometown Heroes Act of 2003. Mr. Jacob was extremely helpful in the
effort to ensure that the surviving family members of public safety
officers killed in the line of duty receive Federal benefits promptly
and with minimum bureaucratic red tape. On all occasions, Mr. Jacob's
profound concern for the welfare of workers is evident.
President Bush has made a fine choice in Gregory Jacob to be the
next Solicitor for the Department of Labor and, on behalf of more than
325,000 members of the Fraternal Order of Police , we are proud to
support his nomination. If I can be of any further assistance on this
matter, please do not hesitate to contact me or Executive Director Jim
Pasco at my Washington office.
Sincerely,
Chuck Canterbury,
National President.
______
Grand Lodge Fraternal Order of Police ,
Washington, DC. 20002,
October 23, 2007.
Hon. Edward M. Kennedy, Chairman,
Hon. Michael B. Enzi, Ranking Member,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC. 20510.
Dear Mr. Chairman and Senator Enzi: I am writing on behalf of the
membership of the Fraternal Order of Police to advise you of our strong
support for the nomination of Howard M. Radzely to be the next Deputy
Secretary for the U.S. Department of Labor.
Mr. Radzely holds degrees from the University of Pennsylvania's
Wharton School of Business and Harvard Law School, and served on the
Harvard Law Review. Before entering private practice here in
Washington, DC., he clerked for the Honorable J. Michael Luttig, U.S.
Court of Appeals for the Fourth Circuit, and for the Honorable Antonin
Scalia, Supreme Court of the United States. In June 2001, he joined the
Labor Department as Deputy Solicitor. For the past 3 years, he has
served as the Solicitor for the Department, a position he held in an
Acting capacity from June 2001 to January 2002 and then again from
January 2003 until his confirmation by the Senate in December of that
year. In January of this year, Mr. Radzely was named Acting Deputy
Secretary.
The FOP his consulted with Mr. Radzely on several occasions
concerning membership issues involving overtime law and regulations and
found him to be very responsive and helpful in every instance. He has
never hesitated to share his keen legal insights, which have been
extraordinarily valuable, particularly in the months immediately
following the implementation of the new Federal Labor Standards Act
overtime rules. On all occasions, Mr. Radzely's profound concern for
the welfare of workers is evident.
President Bush has made a fine choice in Howard Radzely to be the
next Deputy Secretary of Labor and, on behalf of the more than 325,000
members of the Fraternal Order of Police , we are proud to support his
nomination. If I can be of any further assistance on this matter,
please do not hesitate to contact me or Executive Director Jim Pasco at
my Washington office.
Chuck Canterbury,
National President.
Response to Questions of Senator Kennedy, Senator Clinton, and Senator
Gregg by Gregory F. Jacob
QUESTIONS FROM SENATOR KENNEDY
Wage and Hour
Question 1. Under this Administration there have been several
instances where the Department has entered into settlement agreements
in wage and hour cases that undermine ongoing private enforcement
actions. Such settlements can preclude larger recovery for workers
through these private actions. If confirmed as Solicitor, what steps
would you take to ensure that the Department of Labor does not enter
into settlement agreements that would undermine the private enforcement
of the Fair Labor Standards Act?
Answer 1. In settling cases, either through an administrative
supervised agreement or a consent decree, the Department considers many
factors, including the merits of the case, the nature of the
violations, whether the affected employees would benefit from a quick
recovery of back wages, and whether the settlement would unduly affect
pending private cases. Guidelines that I assisted in developing as
Deputy Solicitor in 2005 require that when the Wage and Hour Division
considers an administrative settlement, it must inquire whether there
are any pending private lawsuits under section 16(b) of the Fair Labor
Standards Act and make that information available to the Solicitor's
Office. Moreover, the Solicitor's Office and the Wage and Hour Division
typically exclude from litigated and administrative settlements
employees who have brought or opted into private cases under section
16(b). If confirmed as the Solicitor, I would seek to ensure that
settlement agreements do not undermine private enforcement of the FLSA.
Question 2. In your responses to the committee's written questions
you state that the new overtime rules ``seem to have been a catalyst
for compliance.'' What evidence do you have to support this assertion?
Does DOL have compliance surveys that show improvement?
Answer 2. Following promulgation of the new overtime rule, there
were numerous reports that employers were reviewing their employee
classification policies and deciding to pay employees overtime for the
first time. For example, the Wall Street Journal reported on April 18,
2005, that ``[n]ow that the dust has settled from last year's
acrimonious debate, one thing has become clearer: More workers appear
to have gained overtime protections than lost them as a result of the
Bush administration's broad revision of the Fair Labor Standard Act's
white-collar overtime rules.'' Similar articles appeared in the Raleigh
News and Observer (April 19, 2004) (after a department of WakeMed spent
about 10 weeks reviewing all positions, 60 employees will be entitled
to overtime pay for the first time); Dallas Morning News (April 17,
2004) (a spokesman for J.C. Penney reported that some department
managers are receiving a raise above the Part 541 salary level);
Chicago Sun Times (August 11, 2004) (Sears, Roebuck determined that
2,000 workers now classified as exempt will be reclassified as non-
exempt); Washington Post (July 28, 2004) (St. Jude Children's Research
Hospital and the University of Missouri will start paying certain
employees overtime for the first time). The Wage and Hour Division is
diligently enforcing the new overtime rules. I understand that in
fiscal year 2006, it collected over $13.2 million in back wages for
approximately 12,000 employees for violations of the revised Part 541
rules. The violation most frequently cited in fiscal year 2006 involved
situations where an employee's primary duty was not ``the performance
of office or non-manual work directly related to the management or
general business operations of the employer or the employer's
customers.''
Question 3. At the hearing, you mentioned the importance of
enforcing wage and hour laws on behalf of low-wage workers. What
specific steps will you take if confirmed as Solicitor to strengthen
the Department's enforce efforts on behalf of these vulnerable workers?
Answer 3. In fiscal year 2006, the Wage and Hour Division, with the
assistance of the Solicitor's Office, collected over $50.5 million in
back wages for 86,780 workers in nine low-wage industries--an increase
of 56 percent in back wages for nearly 25 percent more workers in the
same low-wage industries compared to fiscal year 2001. The Solicitor's
Office has aggressively pursued litigation and filed amicus briefs in
cases involving low-wage workers, including workers in car washes,
restaurants, call centers, garment shops, construction companies,
health care facilities, and poultry processing plants. If confirmed as
Solicitor, I would continue to provide full legal support for the Wage
and Hour Division's commitment to protect workers in low-wage
industries. I would also continue to support the Wage and Hour
Division's efforts to reach out to Mexican consulates and immigrant or
low-wage communities to ensure that low-wage workers receive the pay to
which they are legally entitled, and to file amicus briefs and bring
litigation, including seeking civil money penalties, when appropriate.
FMLA
Question 1. If you are confirmed as Solicitor, one of your duties
will be to advise the Department about the legality of proposed
regulations. In your responses to written questions from the committee,
you said that the FMLA was intended to protect ``employees needing
intermittent leave for planned medical treatment such as dialysis,
radiation treatment or chemotherapy'' and that the ``use of FMLA leave
for these types of scheduled medical appointments is working well.''
Don't you agree the FMLA was also intended to cover employees who need
periodic partial-day absences that cannot be scheduled in advance?
Don't you think that a worker undergoing chemotherapy should be able to
take FMLA leave if she feels too sick to come to work on a day when she
does not have a scheduled treatment?
Answer 1. The Department's FMLA regulations cover periods of either
incapacity or treatment due to chronic serious health conditions. 29
CFR 825.114(a) (2)(iii) An employee who meets the test for FMLA
eligibility and experiences unscheduled periodic partial-day episodes
of incapacity would be covered under the regulations, provided that the
condition satisfies the regulatory definition of a chronic serious
health condition and the employee provides the employer with sufficient
notice of the need for FMLA leave. 29 CFR 825.303 The Department's
regulations provide that absences due to chronic serious health
conditions are covered even if the employee does not receive treatment
from a health care provider during the absence. 29 CFR 825.114(e)
Accordingly, an employee who is incapacitated due to the effects of
chemotherapy treatment would be covered under the FMLA provided that
the condition satisfies the regulatory definition and the employee
meets the eligibility and notice requirements.
Immigration
Question 1. At the hearing you testified that, in addition to the
letter wherein ICE agreed not to masquerade as OSHA officials, the
Department has also entered into an agreement with ICE prohibiting ICE
from posing as wage and hour inspectors, MSHA inspectors or other DOL
staff. Please provide a copy of that agreement, and describe any steps
the Department is taking to ensure that the agreement is enforced. From
the perspective of the Solicitor's office, what effect do such abuses
of power by ICE have on labor law enforcement? What effect do they have
on labor standards for American workers?
Answer 1. I believe that it is highly inappropriate for ICE
officials to pose as investigators for OSHA, MSHA, the Wage and Hour
Division, or any other Department of Labor agency. Such a practice
breeds distrust of Federal employment law enforcement and discourages
immigrant employees from cooperating in DOL investigations, which in
turn adversely affects maintenance of labor standards. The Solicitor's
Office raised objections with ICE when it learned of the ICE sting
operation that occurred on Seymour Air Force Base in North Carolina on
July 6, 2005. While DHS has not entered into a formal written agreement
with the Department, Secretary Chertoff subsequently testified that ``I
think that [the North Carolina operation] was a bad idea and I have
directed it not happen again . . I think a ruse that involves safety
or health is not appropriate.'' See Comprehensive Immigration Reform
II, Hearings Before the Senate Committee on the Judiciary, 109th Cong.,
1st Sess. 11 (2005). Moreover, DHS's Office of Investigations issued a
written memorandum to all ICE special agents in charge on March 6, 2006
stating that ``[t]he use of ruses involving health and safety programs
undermines efforts to increase safety in the workplace and undercuts
workers willingness to report workplace safety violations based on a
fear of law enforcement action being instituted against the reporting
worker,'' and directing that ``[e]ffective immediately, the use of
ruses involving health and safety programs administered by a private
entity or a Federal, State or local government agency, such as OSHA,
for the purposes of immigration worksite enforcement, will be
discontinued.'' Memorandum from Marcy M. Forman, Director, to All
Special Agents in Charge, Re: Use of Ruses in Enforcement Operations
(March 6, 2006) (emphasis in original). A copy of the testimony and of
the ICE memorandum is attached.
Question 2. Last month, ICE detained a group of immigrant workers
in the Coffee County jail in Tennessee. These workers had complained
that they had not been paid. Their employer had them arrested on
trumped-up charges of ``trespassing.'' The charges were quickly
dropped, but the workers still face deportation for trying to enforce
their rights. Earlier this year, ICE raided a sweatshop in New Bedford,
Massachusetts where workers were laboring under appalling conditions.
Even in cases where workers can file claims for lost wages, these
experiences strongly deter immigrant workers from asserting their
rights. If confirmed, what steps would you take to ensure that
violations of labor law discovered by ICE are thoroughly investigated
and pursued by the Department of Labor? How can DOL and ICE effectively
communicate about labor law violations without creating a disincentive
for undocumented workers to report these violations?
Answer 2. The November 23, 1998 Memorandum of Understanding between
the Department of Labor and the former Immigration and Naturalization
Service (now ICE), which continues in effect, sets out procedures to
improve communications and coordination between the agencies. Under the
MOU, when ICE obtains or receives information during the course of its
worksite enforcement activities that indicates a possible violation of
statutes within the jurisdiction of the Department of Labor, it is
required to expeditiously notify the Wage and Hour Division (WHD) of
the suspected violation. ICE also is required to contact WHD whenever
ICE removes workers from a workplace so that WHD can ensure that the
workers' wages are collected and paid. Finally, the MOU provides that
Labor Department investigators, when responding to workers' complaints
alleging labor violations, will not refer suspected violations of
immigration law to ICE. This ensures that there is no disincentive for
workers to file complaints about labor and employment violations,
regardless of their status. If confirmed as Solicitor, I would provide
whatever legal assistance is necessary to the Wage and Hour Division to
ensure that the MOU is effectively implemented.
Question 3. Under previous Administrations, there was an inter-
agency worker exploitation task force co-chaired by the DOL Solicitor's
office and the Assistant Attorney General for Civil Rights. This task
force was instrumental in addressing inappropriate enforcement of
immigration laws during labor disputes. If confirmed, would you
consider re-instituting such a task force? If not, what alternate
mechanisms would you put in place to ensure that advocates have a
direct line of communication to the Department when this type of
inappropriate enforcement takes place?
Answer 3. The November 23, 1998 Memorandum of Understanding between
the Department of Labor and the former Immigration and Naturalization
Service (now ICE), which continues in effect, sets out procedures to
improve communications and coordination between the agencies. Under the
MOU (section IV.A.), the agencies agreed to implement policies that
avoid inappropriate worksite interventions where it is known or
reasonably suspected that a labor dispute is occurring and the
intervention may, or may be sought so as to, interfere in the dispute.
If confirmed, I would examine whether this provision of the MOU is
working well in practice and whether an interagency task force is
necessary to correct any deficiencies.
Question 4. There are reports that the Department of Labor plans to
alter the H-2A agricultural guest worker program's ``50 percent rule,''
which requires employers to hire U.S. workers until half the season has
elapsed. A study of this practice conducted during the Administration
of President George H.W. Bush concluded that the benefits to employers
and U.S. workers of this hiring preference substantially outweighed the
minimal costs to employers.
a. Has the Department of Labor uncovered new information
calling into question the findings of this study? Has the
Department conducted a new study of the 50 percent rule's costs
and benefits? If so, what are the findings of the study and the
recommendations for policy?
b. Does the Department plan to recommend changes to the 50
percent rule? If so, what are those changes? Why are they being
proposed?
Answer 4. The Department has received anecdotal information about
the impact of the 50 percent rule from both employers and worker
advocacy groups. The Department has not conducted any formal studies of
the impact of the 50 percent rule, however, since 1990.
On August 10, 2007, the President directed the Department ``to
review the regulations implementing the H-2A program and to institute
changes that will provide farmers with an orderly and timely flow of
legal workers, while protecting the rights of laborers.'' Pursuant to
the President's direction, the Department is evaluating all aspects of
the H-2A program. On November 8, 2007, the Department submitted to the
Office of Management and Budget a draft notice of proposed rulemaking
that would propose revisions to the current H-2A regulations. That
proposal is currently under review.
Question 5. The National Council of Agricultural Employers has
asked the Department of Labor to change the wage rate formula under the
H-2A program by adopting a special ``prevailing wage'' approach. Is the
Department considering such a proposal? What would be the basis for
such a change?
Answer 5. On August 10, 2007, the President directed the Department
``to review the regulations implementing the H-2A program and to
institute changes that will provide farmers with an orderly and timely
flow of legal workers, while protecting the rights of laborers.''
Pursuant to the President's direction, the Department is evaluating all
aspects of the H-2A program. On November 8, 2007, the Department
submitted to the Office of Management and Budget a draft notice of
proposed rulemaking that would propose revisions to the current H-2A
regulations. That proposal is currently under review.
Question 6. The Department of Labor's National Agricultural Worker
Survey found that 47 percent of crop workers are either U.S. Citizens
or permanent resident immigrants, and that their earnings are quite
low, averaging less than $13,000 per year. Do you believe that the H-2A
program's wages, working conditions and recruitment requirements are
adequate to protect U.S. workers from adverse effects caused by the
hiring of guestworkers? If not, what aspects of this program need to be
improved to better protect domestic workers?
Answer 6. Several features of the H-2A program are designed to
protect domestic workers. Specifically, the recruiting requirements are
designed to ensure that domestic workers are aware of and able to apply
for all agricultural job opportunities before H-2A workers can be
solicited, and the housing, transportation, and wage requirements,
among others, ensure that the total cost to employers of hiring H-2A
workers does not undercut the wages and working conditions of domestic
workers.
On August 10, 2007, the President directed the Department ``to
review the regulations implementing the H-2A program and to institute
changes that will provide farmers with an orderly and timely flow of
legal workers, while protecting the rights of laborers.'' Pursuant to
the President's direction, the Department is evaluating all aspects of
the H-2A program, including ways that protections for domestic workers
can and should be enhanced. On November 8, 2007, the Department
submitted to the Office of Management and Budget a draft notice of
proposed rulemaking that would propose revisions to the current H-2A
regulations. That proposal is currently under review.
LMRDA
Question 1. The Department has recently issued informal guidance in
the form of a Frequently Asked Questions document that contradicts its
new LM-30 regulation in several respects. For example, the final rule
says that union volunteers must file an LM-30 form to report any of the
interests described in the instructions, such as a mortgage. Contrary
to this rule, the Department's FAQ document states that certain local
members only have to report the time they volunteer and the value of
that time, but no other financial information. If agency guidance goes
well beyond the text of a final rule, and even contradicts the rule,
would you advise that the agency should withdraw the rule and revise
it, rather than facing a long and costly challenge in the federal
courts?
Answer 1. I am not yet fully familiar with the Department's final
rule on the LM-30. Nevertheless, I understand that the recently issued
Frequently Asked Questions (FAQs) provide guidance to filers on the
reporting requirements under the revised Form LM-30 regulation. I
believe that guidance such as FAQs can be used to clarify regulatory
requirements, but not to contradict them. However, it is my
understanding that the FAQs in question are intended to clarify the
final rule in a way that ameliorates the reporting burden on union
officials without withdrawing or revising the rule. It is my
understanding that neither the final rule nor the FAQs require union
volunteers to file reports; the statutory reporting requirement applies
only to individuals who are officers or employees of the union, but it
does apply to all such individuals (other than exclusively clerical or
custodial employees) who work under the control and direction of the
union without regard to the amount, or method, of compensation for
their service to the union.
QUESTIONS OF SENATOR CLINTON
Question 1. One area where the Department of Labor has come under
criticism in recent months involves OSHA enforcement. Some have charged
the Occupational Health and Safety Administration with failing to
conduct a vigorous investigation of dangerous and even life-threatening
hazards through the Enhanced Enforcement Program. Some have claimed, in
particular, that even in cases where OSHA has already cited a company
for a violation at one of its worksites, the company has felt free to
permit similar or even identical hazards to remain in place at its
other sites.
What role have you played in the administration of the Enhanced
Enforcement Program? Do you believe the Program has been effective? Do
you believe that OSHA has been sufficiently aggressive in investigating
violations at multiple worksites within the same employer? Do you
believe that OSHA needs additional legislative authority in order to
fulfill its obligation to protect workers by undertaking corporate-wide
investigations where appropriate?
Answer 1. It is my understanding that the Office of the Solicitor
(SOL) has worked closely with OSHA to implement the Enhanced
Enforcement Program (EEP), an enforcement initiative that targets
employers who, despite OSHA's enforcement and outreach efforts, ignore
their compliance obligations under the OSH Act and place employees at
risk. Under the EEP, OSHA conducts targeted inspections of other
worksites of the same employer in an effort aimed at obtaining
compliance corporate-wide. In February 2005, SOL and OSHA issued
specific guidance to Regional Solicitors and OSHA Regional
Administrators on how to draft citations and settlements that would be
suitable for summary enforcement proceedings under Section 11(b) of the
OSH Act, making this tool an even more effective component of the EEP.
As of September 30, 2007, after 4 years of implementation, OSHA had
identified approximately 2,097 cases meeting the criteria for enhanced
enforcement, many of which involved workplace fatalities. The program
anticipated the need for aggressive monitoring of such employers and
includes specific follow-up inspection procedures that may extend to
other worksites of a company to verify abatement and determine if
similar violations are being committed. OSHA has also issued eight
``EEP Alert'' memoranda to its field staff as a result of these
inspections, which identify specific employers who have had multiple
EEP cases, targeting them for additional enforcement emphasis on a
company-wide basis. OSHA's EEP Alerts have resulted in approximately 84
additional inspections of these employers. OSHA is currently
considering refinements to the program to make EEP an even more
effective enforcement tool.
OSHA has authority under the act to undertake corporate-wide
investigations where appropriate, and OSHA uses this authority under
the EEP. If I am confirmed as Solicitor, I would ensure that SOL
continues its strong support of the EEP program.
Question 2. One important aspect of the Department of Labor's
responsibilities involves the lawful admission of temporary,
nonimmigrant workers into the country through the H-2A program. We have
heard from many farmers and advocates in the agricultural community who
feel the Department of Labor has been unresponsive to their concerns
about the farm labor shortage. Should you be confirmed, what steps do
you plan to take to improve the effectiveness of the H-2A program in
the absence of legislation?
Answer 2. On August 10, 2007, the President directed the Department
``to review the regulations implementing the H-2A program and to
institute changes that will provide farmers with an orderly and timely
flow of legal workers, while protecting the rights of laborers.'' On
November 8, 2007, the Department submitted a draft notice of proposed
rulemaking to the Office of Management and Budget. That proposal is
currently under review. On the enforcement side, WHD has designated
agriculture as one of nine targeted low-wage industries on which it
particularly focuses its enforcement efforts. If confirmed as
Solicitor, I will ensure that the Solicitor's Office provides these
initiatives the legal advice and support necessary for them to succeed.
Question 3. Today, women working full-time, year-round, still earn
only 77 cents for every dollar earned by a man. In 2005, the median
weekly pay for women was $486, or 73 percent of that for men--$663. A
2003 GAO report, ``Women Work: Work Patterns Partially Explain
Difference between Men's and Women's Earnings'' found that even when
accounting for all the other variables that are often used to justify
the pay gap, such as time out of the workforce to care for children or
part-time work, women still earn significantly less than men. The
report also concluded that 20 percent of the wage gap could not be
explained by factors other than discrimination.
Earlier this year, I joined with Senators Kennedy and Harkin to
send a letter to the Government Accountability Office requesting a
review of the Department of Labor's and the Equal Employment
Opportunity Commission's enforcement, outreach and technical assistance
activities with regard to cases of potential wage discrimination, as
well as the Department of Labor's treatment of the Equal Opportunity
Survey and the presence of pay disparities at Federal agencies and
between job categories. As Solicitor of Labor, will you pledge to
examine this report when it is released and consider the need to
implement changes within the Department of Labor based on the findings?
Answer 3. If confirmed as Solicitor, I will examine the GAO Report
once it is issued and consider any recommendations it puts forward that
relate to the mission of the Solicitor's Office.
QUESTION OF SENATOR GREGG
Question 1. Following several court decisions, there are
outstanding Department of Labor regulations and guidance on minimum
wage, overtime, and other wage related laws and how they should apply
to workers with the H-2A visas. Considering the unfortunate lack of
progress that the Department has made on improving its administration
of our guest worker programs and being responsive to input from our
employers, can you please give me a status report on where the
regulations and guidance are in the process? In addition, as the new
Solicitor, what do you intend to do to help move the process along more
expeditiously?
Answer 1. On August 10, 2007, the President directed the Department
``to review the regulations implementing the H-2A program and to
institute changes that will provide farmers with an orderly and timely
flow of legal workers, while protecting the rights of laborers.'' On
November 8, 2007, the Department submitted a draft notice of proposed
rulemaking to the Office of Management and Budget. That proposal is
currently under review. On the enforcement side, WHD has designated
agriculture as one of nine targeted low-wage industries on which it
particularly focuses its enforcement efforts. If confirmed as
Solicitor, I will ensure that the Solicitor's Office provides these
initiatives the legal advice and support necessary for them to succeed.
[Editor's Note: Due to the high cost of printing, previously
published materials are not reprinted. To review the attachment
submitted by Mr. Jacob's please go to http://www.gpoaccess.gov. Click
on ``A to Z Resource List.'' Scroll down to ``Congressional Hearings''
and click. Scroll down to ``Search'' and click. Scroll down to ``109th
Congress'' and click on the box for ``Senate Hearings.'' Scroll down to
the end of the page and type in ``Comprehensive Immigration Reform
II'',``109-668''. Click on ``Submit.'' Scroll down the page to number
``[15]'' and click on ``pdf.'' See pages 11, 21-22, 53-56, 62, and 65.]
Response to Questions of Senator Kennedy and Senator Clinton
by Howard M. Radzely
QUESTIONS OF SENATOR KENNEDY
Wage and Hour
Question 1. The Department claims to be doing intensive targeted
enforcement efforts in low-wage industries, including directed
investigations in high-violation industries. What do these directed
investigations entail? How does the Department select particular
workplaces for these investigations? Does the Department typically
pursue enforcement actions against the employers involved, or provide
compliance assistance?
Answer 1. The Wage and Hour Division (WHD) identifies potential
problem areas by regularly analyzing case data and conducting
independent research, internal and external audits, and office
evaluations. For example, the annual DOL performance and accountability
report for fiscal year 2006 discusses the results of WHD's most recent
nationwide low-wage survey of prior violators (available at
www.dol.gov/dol/aboutdol/budget.htm). The analysis developed by the
national office of WHD is forwarded to local Wage and Hour officials to
develop appropriate enforcement initiatives for their respective
offices.
Directed, or targeted, investigations are conducted primarily in
industries that employ large numbers of vulnerable, low-skilled workers
and tend to have high rates of minimum wage and overtime violations.
WHD does not disclose whether an investigation is being conducted as
the result of a complaint, so an employer would not know whether a
particular investigation is complaint-based or directed. The scope of
the investigation as well as any applicable remedies for violations
that are found are the same regardless of whether it is generated by a
complaint or is a directed investigation.
The industries WHD focuses on include janitorial services,
restaurants, agriculture, garment manufacturing, health care, day care,
guard services, hotels and motels, and temporary help. WHD initially
focused its low-wage program on the garment manufacturing, agriculture,
and health care industries. In fiscal year 2004, WHD began expanding
its low-wage program to include a broader group of identified low-wage
industries. As a result of its analysis, WHD identified approximately
33 low-wage industries that are regularly targeted for directed
investigations.
Question 2. How has the Department determined the impact of the
2004 overtime revisions? Have you compiled any data on how many people
gained or lost overtime rights? Does the Department know how many
people are currently covered by the overtime provisions of the FLSA?
Why is this information no longer publicly available?
Answer 2. The Department has not conducted a formal study on the
impact of the 2004 overtime revisions. In fiscal year 2006, WHD
collected over $13.2 million in back wages for approximately 12,000
employees for violations of the revised Part 541 rules.
After the final rule was issued, there were many articles
describing workers gaining overtime. For example, the Wall Street
Journal reported on April 18, 2005, that ``[n]ow that the dust has
settled from last year's acrimonious debate, one thing has become
clearer: More workers appear to have gained overtime protections than
lost them as a result of the Bush administration's broad revision of
the Fair Labor Standard Act's white-collar overtime rules.''
ESA estimates that in 2006, 84 million wage and salary workers were
covered by the overtime provisions of the FLSA. I have been informed
that under Public Law 104-66, Section 4(d)(1) reports are no longer
required.
Question 3. Earlier this year, the Supreme Court upheld a
Department of Labor regulation stating that home care workers are not
entitled to Federal minimum wage and overtime protections, even when
they are employed by third party agencies. Although the Court held that
the regulation was a reasonable interpretation of Federal law, DOL
clearly has the authority to alter its rules so that these workers
receive Federal wage protections. If confirmed, would you start a new
rulemaking proceeding to protect these workers? If not, what is your
justification for continuing to deny them fundamental wage protections?
Answer 3. The Fair Labor Standards Act exempts ``any employee
employed in domestic service employment to provide companionship
services.'' 29 U.S.C. Sec. 213(a)(15). The Department's 1975 regulation
on the companionship exemption concluded that the phrase ``any
employee'' is most naturally read to include all employees providing
such services, regardless of who employs them, 40 Fed. Reg. 7404, 7405
(1975), and the Supreme Court stated in its unanimous decision in Long
Island Care at Home, Ltd. v. Coke that it could not identify ``any
significant legal problem with the Department's explanation,'' 127 S.
Ct. 2339, 2351 (2007). The Department has no present plans to revisit
this regulation.
Question 4. You were Solicitor of Labor at the time of the Gulf
Coast storms. What role did you play in the Administration's decision
to suspend the prevailing wage protections of the Davis-Bacon Act? Was
the Administration concerned that suspending prevailing wage rules
would drive down wages at a time families needed decent wages to get
themselves and the New Orleans economy back on track?
Answer 4. The decision to suspend the Davis-Bacon requirements on
September 8, 2005 (subsequently reinstated on November 8, 2005), was
part of an Administration-wide effort to remove as many barriers as
possible to the recovery efforts in the areas impacted by the Gulf
Coast storms. The Office of the Solicitor (SOL) was consulted on legal
issues with regard to suspension of Davis-Bacon provisions in the Gulf
Coast region, and SOL provided guidance on the appropriate legal
methods to suspend Davis-Bacon requirements.
Question 5. Despite longstanding clear instructions from the
Supreme Court, employers continue to violate the rule that workers must
be paid for time spent donning and doffing necessary protective
equipment. For example, recently, in Gorman v. The Consolidated Edison
Company, the Second Circuit ruled that nuclear power plant workers are
not entitled to pay for time spent going through security or donning
and doffing protective gear. The court's ruling was based on the
regulatory definition of ``principal activity'' which the Department
could change. What steps should the Department take to improve
compliance with the donning and doffing decision, particularly in
industries other than the poultry industry, where there has not yet
been extensive litigation about the requirements governing employers?
If confirmed as Deputy Secretary would you revisit the regulatory
definition of a ``principal activity?'' If not, why not?
Answer 5. I remain concerned about the Second Circuit's recent
holding in Gorman v. Consolidated Edison Company, No. 05-6546 (May 30,
2007), petition for rehearing denied (Sept. 17, 2007), that donning and
doffing of required gear by employees of a nuclear power station is not
integral to the employees' principal activities and thus not
compensable. That holding seems to be in conflict with the Supreme
Court's decision in IBP v. Alvarez, 546 U.S. 21 (2005) (in which the
Department filed an amicus brief on behalf of the workers), Steiner v.
Mitchell, 350 U.S. 247 (1956), and Wage and Hour Advisory Memorandum
No. 2006-2 (May 31, 2006), as well as arguments advanced in amicus
briefs over the past few years filed by the Department on behalf of
workers in the poultry and other industries and in litigation brought
by the Department. For example, in Dege v. Hutchinson Technology, Inc.,
No. 06-3754 (D. Minn.), the Department recently filed an amicus brief
in support of workers who manufacture disk drive suspension assemblies
and medical devices who were not paid for time spent donning and
doffing ``cleanroom'' gear. Also, the Department has settled a number
of cases in the past few years against major car manufacturers
requiring them to compensate their employees for donning and doffing of
required clothing. The Department recently filed suit against a coal
mining company seeking compensation for donning and doffing of safety
equipment. The Department is monitoring whether the workers in Gorman
seek Supreme Court review. If they do, the Office of the Solicitor will
work with the Solicitor General to determine the appropriate action.
The Department will continue to monitor this issue.
Question 6. Under this Administration there have been several
instances where the Wage and Hour division issued an opinion letter
that clearly had the potential to influence pending litigation,
notwithstanding the Department's articulated policy of not issuing
opinion letters concerning matters which are currently under review by
the courts. In one such circumstance, for example, the Department
issued an opinion letter responding to an inquiry from a trade
association when one of the association's member businesses was
currently involved in a class action lawsuit addressing the issue that
was the subject of the association's inquiry. Does the Department
continue to maintain a policy of not issuing opinion letters concerning
matters that are the subject of pending litigation? If confirmed, what
steps would you take to ensure that this policy is not circumvented by
trade associations or other special interest groups?
Answer 6. The Department instituted a policy generally not to issue
an opinion letter where: (1) the opinion is sought by a party to
pending private litigation concerning the issue addressed in the
letter, or (2) the opinion is sought in connection with an
investigation or litigation between a client or firm and the Wage and
Hour Division (WHD) or the Department of Labor. The Department
maintains an active amicus program where a party in litigation can seek
WHD's input by requesting that the Office of the Solicitor, on behalf
of the Department, file an amicus brief in support of one of the
parties if there are important legal issues impacting or relating to
the Department's programs. The Department will issue opinion letters to
umbrella organizations such as trade associations, national unions,
employee associations, etc., even though one or more of their members
may be in litigation, because the purpose of opinion letters is to
resolve issues of importance as well as to provide interpretive
guidance on regulatory issues. If umbrella organizations, any one of
whose many members or constituent unions may be involved in active
litigation, were precluded from seeking opinion letters, WHD's ability
to provide guidance would be unduly limited.
Question 7. At the hearing, you mentioned that tipped workers have
been a focal point of the Department's efforts in the Wage and Hour
Division this year. Please describe the nature of your efforts on
behalf of tipped workers. Have these efforts focused more on compliance
assistance for employers, or enforcement actions on behalf of workers?
What signs can the Department point to suggesting that these efforts
have been successful?
Answer 7. WHD balances strong enforcement, compliance assistance,
and partnership activities to protect workers and to make employers
aware of their obligations. In fiscal year 2007, in addition to its
complaint-based investigations, WHD conducted 15 local initiatives
targeting full-service restaurants. Preliminary fiscal year 2007
calculations indicate that WHD concluded 23 percent more directed cases
in the restaurant industry than it did in fiscal year 2006, resulting
in a 69 percent increase in back wage findings for 17 percent more
employees. In fiscal year 2006, WHD recovered nearly $17 million for
over 29,000 workers in the restaurant industry. In fiscal year 2008,
WHD is planning to pursue over 20 initiatives focusing on the
restaurant industry. In addition to enforcement activity, WHD
disseminates compliance assistance materials to employers and employees
in the restaurant industry. The ``Restaurant and Fast Food
Establishments'' and ``Tipped Employees Under the Fair Labor Standards
Act (FLSA)'' fact sheets, which are regularly distributed to employers,
workers, and associations through various venues, summarize regulations
related to tip credit. WHD is currently updating the ``Tipped
Employee'' fact sheet to provide common examples and to address
questions related to tip credit.
Misclassification
Question 1. In his written answers to the committee's questions,
Mr. Jacob said that the Department is considering changes to its
database to collect information on workers who are misclassified as
independent contractors. Will you commit to implementing this change,
if confirmed? What is the time frame for implementing this change?
Answer 1. In fiscal year 2008, the Wage and Hour Division (WHD) is
planning to implement changes to track enforcement and compliance
assistance activities related to the misclassification of workers as
independent contractors. As Acting Deputy Secretary, and if confirmed
as Deputy Secretary, I will support WHD's efforts in this area.
Question 2. Workers who are misclassified as independent
contractors are often wrongly denied protection under other laws, such
as State workers' compensation laws and the National Labor Relations
Act. A recent GAO report faulted the Department for not doing enough to
refer these cases to other State and Federal agencies. Don't you agree
that the Department should do everything in its power to prosecute
these kinds of cases and to alert other agencies when it discovers that
workers are being denied their rights? If confirmed, would you commit
to referring cases to agencies to protect workers' rights?
Answer 2. In response to the GAO recommendation that WHD evaluate
the extent to which misclassification cases identified through FLSA
investigations are referred to the appropriate Federal or State agency
potentially affected by the misclassifications and take action to make
improvements as necessary, WHD reviewed its internal processes for
referral of potential employee misclassification to other agencies with
first-line field managers and reminded them to follow the agency's
longstanding Field Operations Handbook instructions. The FOH provides
that possible violations of laws or regulations not enforced by WHD
should be reported to WHD field managers for a determination of
appropriate referral steps, if any. WHD recently directed field
managers that IRS referrals should be made on alleged ``independent
contractor'' cases where WHD determines that the putative ``independent
contractor'' is an employee under FLSA.
WHD believes that an explicit policy of automatic referrals to all
other agencies could have an adverse impact on WHD's mission and
ultimately harm those workers whom the agency is tasked with
protecting.
Immigration
Question 1. My office has received many complaints that DOL offices
have become inaccessible in recent years. It is difficult to reach a
human being at DOL offices, and hard to receive updates on the status
of a case. This is particularly true for workers with language
barriers. These communication problems create particular challenges
when the Department is primarily relying on worker complaints, rather
than the comprehensive industry compliance audits and targeted
enforcement that we've seen in previous Administrations. What steps is
DOL taking to ensure that its offices are accessible to workers,
particularly workers with language barriers, day laborers, and other
workers that may have difficulty navigating the system? If confirmed,
would you commit to conducting a thorough independent audit of the
accessibility of DOL offices and making substantial improvements in
response to the findings?
Answer 1. The Department takes seriously its obligations to provide
workers with access to DOL offices and provides translations of
relevant worker protection information on the Department's Web site, on
worker protection posters required at work sites, and on materials it
disseminates to workers, employers and community groups. The two
agencies with the most immediate contact with workers who may have
``difficulty navigating the system'' are OSHA and the WHD, both of
which have undertaken significant efforts to provide access to the
workers in question.
WHD utilizes a toll-free number with the ability to communicate
with the public in some 150 languages to assist workers in locating the
appropriate office to respond to their questions and needs. In fiscal
year 2008, WHD plans to increase awareness of its toll-free help line
by listing it on WHD posters and other compliance assistance materials.
WHD also currently has some 104 compliance assistance materials
available in languages other than English, including Spanish,
Vietnamese, Thai, Korean, Chinese, and Haitian. WHD is also working to
translate materials into Russian and Hmong. WHD has also developed
worker rights cards and fact sheets for specific worker groups,
including day laborers.
As described in its fiscal year 2008 Compliance Assistance Plan,
WHD also works with organizations that provide assistance to immigrants
and conducts its own direct outreach. For example, WHD works with
Mexican Consulates, participates in Spanish-speaking radio programs,
and attends community fairs. The agency is also considering expanding
JEWP (Justice and Equality in the Workplace Program) and EMPLEO
(Employment Education and Outreach) type partnerships--such as TIGAAR
(The Information Group for Asian American Rights) in Houston, TX; REACH
(Rapid Employee Assistance in Chinese Hotline) in New York City, NY;
Alza Tu Voz (Lift Your Voice) in Philadelphia, PA; and PIECE
(Protecting Immigrant Employees with Compliance and Education) in
Kansas City, KS--to extend WHD's ability to serve immigrant populations
throughout the country.
Other vulnerable populations, such as day laborers, are further
served through WHD's partnership with Federal and State agencies, as
well as other organizations and stakeholders. For example, WHD's New
York City District Office works with local community groups in New York
City to provide outreach to day laborers. Similarly, other WHD offices,
including Gulfport, Mississippi, and New Orleans, Louisiana, provide
outreach to day laborers and frequently visit a variety of venues where
day laborers congregate, as well as charities and community centers.
Similarly, OSHA operates a toll-free number, which also acts as a
call center for after-hours complaints. Through the call center, a
worker calling in with a complaint or requesting information is routed
directly to designated individuals to answer questions. If they are
interested in filing a complaint, they are routed directly to one of
OSHA's field offices. This system also operates in Spanish. In areas of
the country where there is a large Hispanic population, OSHA has hired
Spanish-speaking compliance officers who also perform outreach and
compliance assistance to the Hispanic community.
OSHA also conducts extensive outreach to immigrant communities with
education, training activities and public service announcements (PSAs)
and provides extensive compliance assistance information in Spanish,
including OSHA's Spanish-language Web site, OSHA en Espanol, which
received some 141,210 visits in fiscal year 2006. OSHA also engages in
extensive outreach to vulnerable populations, such as day laborers. For
example, in the aftermath of Hurricane Katrina, OSHA hurricane response
teams provided safety and health advice to employers and employees at
staging areas, parking lots of building supply stores, and many other
places at which workers were likely to congregate. OSHA staff also
worked closely with the Mexican Consulate in Houston and participated
in a Hispanic Safety Fair in the Gulf Coast area in August 2006 to
ensure that Hispanic workers had a forum to express concerns about
workplace safety and health issues.
As Acting Deputy Secretary, and if confirmed as Deputy Secretary, I
will work with DOL agencies as they work to further improve
accessibility to all workers.
Question 2. In 2001 and 2002, the Department of Labor delayed
issuing the annual H-2A program wage rates (the adverse effect wage
rates for each State) until a lawsuit was filed by the United Farm
Workers and others. This lawsuit was ultimately successful in requiring
the agency to issue the wage rates each year. If confirmed, what steps
would you take to make sure that the H-2A program wage rates for 2008
are issued on a timely basis at the very beginning of the year?
Answer 2. Beginning in 2003, the Department has annually issued the
H-2A Adverse Effect Wage Rates (AEWRs) for each State and published the
AEWRs in the Federal Register between February 21 and March 16 as
follows:
February 26, 2003--Vol. 68, Number 38 (pages 8929-30)
March 3, 2004--Vol. 69, Number 42 (pages 10063-65)
March 2, 2005--Vol. 70, Number 40 (pages 10152-53)
March 16, 2006--Vol. 71, Number 51 (pages 13633-35)
February 21, 2007--Vol. 72, Number 34 (pages 87909-11)
The Employment & Training Administration (ETA) currently expects to
publish the 2008 AEWRs in at least as timely a manner as in the past 5
years. This expectation, however, is based upon timely receipt from the
Department of Agriculture of farmworker wage survey information, which
ETA then publishes, by State, for use by our Nation's H-2A agricultural
employers. As Acting Deputy Secretary, and if confirmed as Deputy
Secretary, I fully support ETA's goal of continued timely publication
of AEWRs.
Safety and Health
Question 1. In March 2007, I requested that the Department provide
documents related to the withdrawal of two OSHA citations issued to
Avalon Bay Communities construction sites in Massachusetts. The
Department has informed my staff that it will not produce responsive
documents and, instead, provided only limited access to the documents
at the Department. Can you explain the legal basis for the Department's
refusal? If confirmed, will you commit to providing the requested
documents?
Answer 1. It is my understanding that the Department has provided
some 1,427 pages of relevant documents requested by the committee. The
Department initially made available for your staff's inspection a
number of confidential internal documents regarding personnel issues,
and explained that there was an ongoing investigation of a related
matter by the Department's Office of the Inspector General (OIG). I
further understand that after inspecting the confidential documents,
committee staff requested copies, and I have been informed that the
requested confidential materials were delivered to the committee on
November 9, with the exception of 21 pages that the OIG has requested
be withheld pending the outcome of their investigation.
There are also two additional OSHA investigation case files, one
still open and one recently closed. I have been informed that the
recently closed file should be transmitted to the committee shortly.
Also, when the OIG determines it is appropriate to turn over the
remaining 21 pages and when OSHA completes the remaining open
investigation, the Department will promptly provide the remaining
requested documents to the committee. I have asked that Department
staff keep committee staff informed of the status of the open
investigation in the interim.
Question 2. The Department has failed to issue a standard requiring
employers to pay for employees' required safety equipment, such as hard
hats, safety glasses, and chemical protective suits. Will you assure me
that the Department will meet its promised November deadline for
issuing this standard? Will you commit that the final rule will be no
less protective than the rule proposed in 1999, and no less protective
than OSHA's longstanding policy regarding the kinds of safety equipment
employers must pay for?
Answer 2. OSHA's final rule regarding personal protective equipment
has been transmitted to the Federal Register and is expected to be
published next week. OSHA officials would be happy to provide the
committee a briefing on the rule next week.
Question 3. At your confirmation hearing last week, you said that
OSHA only suspended targeted investigations at Ground Zero, but that
the Department continued other enforcement efforts. During the 9 months
following the attacks of September 11th, were there any OSHA
enforcement inspections or other enforcement actions against any
employers at the World Trade Center site? If so, please provide a list
of those inspections or enforcement actions and the results, including
specifically whether any citations were issued.
Answer 3. I have been informed that there were no enforcement
actions against employers for work at the World Trade Center (WTC)
Emergency Project during the 9 months immediately following September
11, 2001, but that OSHA would have investigated any fatalities or
formal complaints, if there had been any. Beginning in mid-October
2001, however, inspections were conducted in the areas around the WTC
site. During the 9 months following September 11 (through May 28,
2002), OSHA conducted 76 inspections (69 citations with 142 serious
violations, 4 other than serious violations, and 4 repeat violations)
south of Canal Street in Manhattan. In addition, during the winter/
spring of 2002, OSHA also conducted a Local Emphasis Program--Phase 1
that involved safety and health inspections of some 34 buildings
immediately around the WTC site with visible or known damage. This
effort included 51 inspections (9 citations with 22 total violations).
All sites on the list were visited, but in some cases no inspection
occurred because work was already complete or had not yet begun.
Question 4. At your confirmation hearing, you claimed that the
Department's ergonomic enforcement activity is focused on issuing
ergonomic hazard alert letters. Please explain why none of the
Department's hazard alert letters has resulted in the issuance of a
general duty citation. How does the issuance of these letters
constitute effective enforcement, if it does not lead to any citations?
Answer 4. As part of its enforcement plan for ergonomics, OSHA
recently launched its follow-up program for ergonomic hazard alert
letters (EHALs) to determine whether employers who received an alert
letter have taken action to reduce those hazards. As of mid-September,
OSHA had received responses from approximately 320 employers that
originally received EHALs. OSHA reports that 280 employers have taken
action to address the ergonomic hazards, 25 employers have apparently
gone out of business, and OSHA is still analyzing the remaining
responses.
Question 5. Please report how many cases the Department has
referred to the Department of Justice for criminal prosecutions under
the OSH Act since 2003. For those same years, please report the number
of cases in which OSHA found willful violations that resulted in a
worker fatality. In how many of the cases referred to the Department of
Justice did the Department of Justice decline to prosecute? What was
the disposition of the cases that the Department of Justice prosecuted?
Answer 5. Since my memorandum as Solicitor of Labor on September 5,
2003, requiring that the Solicitor's Office evaluate for criminal
referral all cases involving a willful violation of an OSH Act
regulation that causes the death of an employee, the Department
referred 10, 10, 12, and 10 cases to the Justice Department under the
OSH Act in fiscal year 2004--2007, respectively. This is a significant
increase from the average of 6.2 referrals a year for the preceding
decade. OSHA found willful violations that resulted in a worker
fatality in 30, 30, 38, and 17 cases for fiscal year 2004-2007,
respectively. A chart noting the disposition of the referred cases is
enclosed as Attachment A.
Question 6. The Chemical Safety and Hazard Investigation Board
requested that OSHA provide information related to its investigation of
the March 23, 2005 explosions and fires at the BP Texas City oil
refinery. OSHA, however, refused to provide information on OSHA's
enforcement of the Process Safety Management Standard. Please explain
the basis for OSHA's refusal to provide this information to the CSB. If
confirmed, will you commit to providing the Chemical Safety and Hazard
Investigation Board with the inspection records that they requested?
Answer 6. OSHA provides the Chemical Safety Board (CSB) inspection
records relevant to the CSB's investigations. Pursuant to the CSB's
requests, OSHA provided the CSB extensive information from its
inspections of BP's Texas City refinery, including the investigation of
the March 2005 explosion and fire. I have been informed that OSHA
provided all of the Texas City facility inspection records requested by
the CSB that still existed. However, the CSB also requested voluminous
materials that did not involve the Texas City refinery, but rather
OSHA's internal operations related to overall enforcement efforts under
the process safety management standard, such as OSHA's inspection
priorities, targeting, staffing levels and inspection budgeting. In the
Department's opinion, these requests went far beyond the CSB's
statutory function. OSHA did not provide confidential information in
light of CSB's position that it would not protect the information from
public disclosure. Correspondence regarding OSHA's position is enclosed
as Attachment B.
Question 7. Please report to the committee on the status of OSHA's
response to the CSB's report and recommendations on the Texas City
disaster, including copies of any correspondence between OSHA and CSB
on its response and a detailed description of the steps that OSHA has
taken to implement each recommendation made by the CSB. If no action
has been taken on any recommendation, please explain.
Answer 7. OSHA has worked closely with the CSB to respond to the BP
Texas City incident. On March 5, 2007, OSHA's Deputy Assistant
Secretary and OSHA personnel met with CSB representatives to discuss
the Board's draft recommendations. Since the CSB issued its final
recommendations to OSHA, there have been informal discussions with CSB
staff members both on the substance of their recommendations and on the
progress OSHA has made in determining how it will respond to those
recommendations.
OSHA is close to finalizing its response to the CSB. In the
meantime, it is already taking actions that implement many of those
recommendations. For example, OSHA has begun a large enforcement
initiative to conduct programmed inspections at all of the Nation's
refineries within Federal OSHA jurisdiction. The Petroleum Refinery
Process Safety Management National Emphasis Program (CPL 03-00-004),
implemented last spring, targets areas where OSHA has previously found
deficiencies that resulted in large-scale accidental releases. The NEP
requires specific evaluation of the safety of blowdown drums and stacks
(blowdown systems) at refineries, which was one of the recommendations
from CSB.
In addition, OSHA has implemented a training program that has
already qualified more than 200 additional compliance officers to
conduct PSM inspections, a course of action that implements the CSB's
recommendation to ``establish the capacity to conduct more
comprehensive PSM inspections by hiring or developing a sufficient
cadre of highly trained and experienced inspectors.'' A chart
describing OSHA's responses to the CSB's recommendations is enclosed as
Attachment C.
Question 8. In 2006, CSB proposed a rule that required employers to
preserve records following chemical spills and other accidents. OSHA
submitted comments on the proposed rule, alleging that CSB lacked the
authority to impose the recordkeeping requirement. Please describe any
contact or communication between OSHA and any employers or
representatives of employers (such as trade associations) about the
CSB's proposed rules. Did OSHA consult with or coordinate its comments
with any entities outside of the government?
Answer 8. I am informed that OSHA did not consult with or
coordinate its comments on this matter with entities outside of the
State or Federal Government. I am also informed that the CSB's proposed
rule was discussed in response to at least one inquiry from an outside
entity to OSHA officials.
OLMS
Question 1. The new LM-30 rule requires union volunteers to contact
every financial institution or company with which their families do
business to ask whether they do business with their unions or with
certain employers. If financial institutions won't provide this
information, the members must contact the Department for assistance,
and also make good faith estimates. Although this is clearly stated in
the rule, top officials at the Office of Labor Management Standards
have said that they will not prosecute members who fail to contact
financial institutions. Does the Department intend to prosecute union
members who fail to follow the regulation's specific requirement that
they must contact every financial institution with which they have a
financial interest or income of $250? If you do not intend to
prosecute, shouldn't the Department amend its rule so that union
members know that they need not go through this onerous process?
Answer 1. The Labor-Management Reporting and Disclosure Act
(LMRDA), enacted in 1959, required union officers and employees to file
reports when they, their spouses or minor children receive payments
from businesses that deal in substantial part with an employer whose
employees the union represents or is actively seeking to represent, 29
U.S.C. Sec. 202(a)(3), as well as payments from businesses that deal
with their labor organization, 29 U.S.C. Sec. 202(a)(4). According to
the Office of Labor-Management Standards (OLMS) and SOL, the rule does
not require union officials to contact ``every financial institution
with which they have a financial interest or income of $250'' in order
to comply with the LMRDA, much less to avoid criminal violations. For
example, when a union officer or employee banks with a large commercial
bank, even if the employer whose employees the union represents also
does business with the same bank, it should not be necessary to ask
whether that employer's business equals 10 percent of the large
commercial bank's annual receipts (as the rule defines ``substantial
part'').
Question 2. For nearly 50 years, only union officers and employees
have been required to disclose and report limited aspects of their
personal finances. Under the Department's new LM-30 regulation,
hundreds of thousands of rank-and-file union members and their families
will be subject to new disclosure rules, solely because they volunteer
time during the workday. The Department has made this sweeping change
without studying the time it will take for union members to record
their no-docking and union-leave pay. What is the Department's basis
for making such a sweeping change without studying the burden on
ordinary members?
Answer 2. In the notice of proposed rulemaking, OLMS estimated that
the annual filing rate would reach 2,046 reports. 70 Fed. Reg. 51166,
51199 (August 29, 2005). In the regulatory procedures section of the
Final Rule, OLMS discussed in detail its estimates of the increased
reporting and recordkeeping attributable to the new requirement that an
individual who receives employer salary payments under a union-leave or
no-docking policy to perform union work under the control and direction
of the union is a union employee for reporting purposes. 72 Fed. Reg.
36105, 36151-36158 (July 2, 2007). After taking into consideration
recent filing trends, comments received, and the requirements of the
Final Rule, OLMS estimated 6,916 reports would be filed annually, over
triple the amount estimated in the NPRM. 72 Fed. Reg. at 36153, 36156.
Question 3. The Department has recently issued informal guidance in
the form of a Frequently Asked Questions document that contradicts its
regulation in several respects. For example, the final rule says that
union volunteers must file a LM-30 form to report any of the interests
described in the instructions, such as a mortgage. Contrary to this
rule, the Department's FAQ document states that certain local members
only have to report the time they volunteer and the value of that time,
but no other financial information. Indeed, OLMS acknowledges that the
Department's FAQs purports to change several provisions of the final
rule or create exceptions. How will the Department enforce the
regulation in light of the contradictions? Does the Department intend
to provide a new information collection submission to the Office of
Management and Budget to reflect the changes in the informal guidance?
Answer 3. The recently issued Frequently Asked Questions (FAQs)
provide guidance to filers on the reporting requirements under the
revised Form LM-30 regulation and, in some instances, clarify
ambiguities in the instructions. Neither the final rule nor the FAQs
require union volunteers to file reports; the statutory reporting
requirement applies only to individuals who are officers or employees
of the union, but it applies to all such individuals (other than
exclusively clerical or custodial employees) who work under the control
and direction of the union without regard to the amount, or method, of
compensation for their service to the union. Thus, the Department does
not believe there is a contradiction between the FAQs and the Final
Rule.
Question 4. Do you know whether the investigators for the Office of
Labor-Management Standards are authorized to carry firearms into
meetings with union officers or other individuals? If these
investigators have been carrying firearms, what legal authority do they
have to carry those firearms? If they have not carried firearms or do
not have the authority to carry them, would you take any actions to
provide them with such authority?
Answer 4. OLMS investigators are not authorized to carry firearms.
I am informed that, absent a legislative grant of additional law
enforcement authorities, only a U.S. Marshal can authorize an OLMS
investigator to carry a firearm, provided that the investigator has
first successfully completed the Criminal Investigator Training Program
through the Federal Law Enforcement Training Center or equivalent
training. I do not support arming OLMS investigators. The Department is
currently considering whether OLMS criminal investigators should be
classified within the 1801 series or 1811 series, but this technical
classification issue is separate from the question whether OLMS
investigators should be armed, as both 1801 and 1811 investigators can
be authorized to carry firearms.
QUESTIONS OF SENATOR CLINTON
Question 1. One area where the Department of Labor has come under
criticism in recent months involves OSHA enforcement. Some have charged
the Occupational Health and Safety Administration with failing to
conduct a vigorous investigation of dangerous and even life-threatening
hazards through the Enhanced Enforcement Program. Some have claimed, in
particular, that even in cases where OSHA has already cited a company
for a violation at one of its worksites, the company has felt free to
permit similar or even identical hazards to remain in place at its
other sites.
What role have you played in the administration of the Enhanced
Enforcement Program? Do you believe the Program has been effective? Do
you believe that OSHA has been sufficiently aggressive in investigating
violations at multiple worksites within the same employer? Do you
believe that OSHA needs additional legislative authority in order to
fulfill its obligation to protect workers by undertaking corporate-wide
investigations where appropriate?
Answer 1. During my tenure in the Solicitor's Office (SOL), SOL
worked closely with OSHA to implement the Enhanced Enforcement Program
(EEP), an enforcement initiative that targets employers who, despite
OSHA's enforcement and outreach efforts, ignore their compliance
obligations under the OSH Act and place employees at risk. One of the
five prongs of EEP is targeted inspections of other worksites of the
same employer and other efforts aimed at obtaining compliance
corporate-wide. SOL has continued to be an active supporter of EEP
throughout the program's existence. For example, in February 2005,
then-Acting Assistant Secretary Jonathan Snare and I issued specific
guidance to Regional Solicitors and OSHA Regional Administrators on how
to draft citations and settlements that would be suitable for summary
enforcement proceedings under Section 11(b) of the OSH Act, making this
tool an even more effective component of the EEP.
EEP has proven to be an effective new enforcement tool. As of
September 30, 2007, after 4 years of implementation, OSHA had
identified approximately 2,097 cases meeting the criteria for enhanced
enforcement, many of which involved workplace fatalities. The program
anticipated the need for aggressive monitoring of such employers and
includes specific follow-up inspection procedures that may extend to
other worksites of a company to verify abatement and determine if
similar violations are being committed. OSHA has also issued eight
``EEP Alerto'' memoranda to its field staff as a result of these
inspections, which identify specific employers who have had multiple
EEP cases, targeting them for additional enforcement emphasis on a
company-wide basis. OSHA's EEP Alerts have resulted in approximately 84
additional inspections of these employers. OSHA is currently
considering refinements to the program to make EEP an even more
effective enforcement tool.
OSHA has authority under the act to undertake corporate-wide
investigations where appropriate, and OSHA uses this authority under
the EEP.
Question 2. One important aspect of the Department of Labor's
responsibilities involves the lawful admission of temporary,
nonimmigrant workers into the country through the H-2A program. We have
heard from many farmers and advocates in the agricultural community who
feel the Department of Labor has been unresponsive to their concerns
about the farm labor shortage. Should you be confirmed, what steps do
you plan to take to improve the effectiveness of the H-2A program in
the absence of legislation?
Answer 2. On August 10, 2007, the President directed the Department
``to review the regulations implementing the H-2A program and to
institute changes that will provide farmers with an orderly and timely
flow of legal workers, while protecting the rights of laborers.'' On
November 8, 2007, the Department submitted a draft notice of proposed
rulemaking to the Office of Management and Budget. That proposal is
currently under review. On the enforcement side, the Wage and Hour
Division has designated agriculture as one of nine targeted low-wage
industries on which it particularly focuses its enforcement efforts. As
Acting Deputy Secretary, and if confirmed as Deputy Secretary, I will
work with others in the Department of Labor to support the DOL agencies
responsible for enforcing these protections.
Question 3. Today, women working full time, year-round, still earn
only 77 cents for every dollar earned by a man. In 2005, the median
weekly pay for women was $486, or 73 percent of that for men--$663. A
2003 GAO report, ``Women Work: Work Patterns Partially Explain
Difference between Men's and Women's Earnings'' found that even when
accounting for all the other variables that are often used to justify
the pay gap, such as time out of the workforce to care for children or
part-time work, women still earn significantly less than men. The
report also concluded that 20 percent of the wage gap could not be
explained by factors other than discrimination.
Earlier this year, I joined with Senators Kennedy and Harkin to
send a letter to the Government Accountability Office requesting a
review of the Department of Labor's and the Equal Employment
Opportunity Commission's enforcement, outreach and technical assistance
activities with regard to cases of potential wage discrimination, as
well as the Department of Labor's treatment of the Equal Opportunity
Survey and the presence of pay disparities at Federal agencies and
between job categories. As Deputy Secretary of Labor, will you pledge
to examine this report when it is released and consider the need to
implement changes within the Department of Labor based on the findings?
Answer 3. As Acting Deputy Secretary, and if confirmed as Deputy
Secretary, I, as well as others in the Department, will examine the GAO
Report once it is issued. The Department will examine the findings and
consider any recommendations the GAO puts forward.
ATTACHMENT A
Criminal Referrals by OSHA to DOJ or U.S. Attorneys
FY 2004 through FY 2007
Last update 10/17/2007 (Provided by the Office of the Solicitor)
------------------------------------------------------------------------
Referral
Name of company date Decided
------------------------------------------------------------------------
Fiscal Year 2004 [10]
------------------------------------------------------------------------
# Company A........................ 2/04 U.S. Atty. declined.
#,*,** Company B................... 3/04 No decision yet.
# Company C........................ 3/04 DOJ declined 6/04.
# Company D........................ 3/04 U.S. Atty. declined 7/
04.
# Company E........................ 4/04 U.S. Atty. declined 4/
05.
Union Foundry (crushing)........... 4/04 Guilty plea 9/05 (OSH
Act & RCRA counts)
$4.25M fine &
community service
project;
3 yrs. probation.
# Company F........................ 6/04 No decision yet.
# Company G........................ 7/04 No decision yet.
** Jared Bailey (EKK Grading)...... 7/04 Indictment 8/05;
Acquittal 12/05.
# Company H........................ 7/04 U.S. Atty. declined 9/
04.
------------------------------------------------------------------------
Fiscal Year 2005 [10]
------------------------------------------------------------------------
# Company A (fall)................. 10/04 U.S. Atty declined 11/
04.
Glen Wagner; Wagner Excavation 11/04 Information filed 10/4/
Services (trenching). 05; Guilty plea 10/12/
05; Fined $50,000.
Kang Yeon Lee (Big Apple Constr.) 12/04 Guilty plea 4/05; 30
(balcony collapse). months jail; 2 years
probation; $2M
restitution and civil
penalties.
*Ralph Guarnieri (Global Electric). 3/05 Indictment 6/8/06;
Superseding Ind. 5/
07.
#,* Company C...................... 3/05 U.S. Atty declined 10/
06.
# Company D........................ 4/05 No decision yet.
** Nasir Bhatti & Tariq Alamgir 6/05 Complaint 5/06; Guilty
(Metla Const.) (fall). pleas 12/06.
Greg Clark (Greg Clark Roofing) 6/05 Information 2/06;
(fall). Guilty plea; Fine.
# Company G........................ 7/05 No decision yet.
# Company H........................ 7/05 U.S. Atty declined 11/
05.
------------------------------------------------------------------------
Fiscal Year 2006 [12]
------------------------------------------------------------------------
# Company A (electrocution)........ 12/05 No decision yet.
# Company B........................ 12/05 No decision yet.
# Company C........................ 12/05 No decision yet.
# Company D (caught in machine).... 1/06 No decision yet.
# Company E (trench)............... 1/06 U.S. Atty declined 2/
06.
#,* Company F...................... 1/06 No decision yet.
Company G--American Asbestos 2/06 Guilty plea--1 yr.
Control (fall through skylight). probation; $25,000
fine.
# Company H (fall)................. 4/06 No decision yet.
#, ** Company I.................... 4/06 No decision yet.
# Company J (electrocution)........ 7/06 No decision yet.
# Company K (building collapse).... 8/06 No decision yet.
#, * Company L..................... 9/06 No decision yet.
------------------------------------------------------------------------
Fiscal Year 2007 (10)
------------------------------------------------------------------------
# Company A (trench)............... 2/07 No decision yet.
# Company B (trench)............... 2/07 No decision yet.
# Company C (confined space)....... 2/07 No decision yet.
# Company D (fall from scaffold)... 3/07 No decision yet.
# Company E (fall from scaffold)... 3/07 No decision yet.
# Company F (fall from scaffold)... 3/07 No decision yet.
# Company G (concrete collapse).... 6/07 No decision yet.
# Company H (machine).............. 6/07 No decision yet.
# Company I (fall)................. 9/07 No decision yet.
# Company J (excavation)........... 9/07 No decision yet.
------------------------------------------------------------------------
Fiscal Year 2008 (2)
------------------------------------------------------------------------
# Company A........................ 10/07 No decision yet.
# Company B (excavation)........... 11/07 No decision yet.
------------------------------------------------------------------------
* False statements (29 U.S.C. Sec. 666(g); 18 U.S.C. Sec. 1001).
** Interference with OSHA inspection (18 U.S.C. Sec. 1505), or
attempted bribery (18 U.S.C. Sec. 210(b)(1)(A)).
# Company name withheld. Prosecution has not yet been initiated OR
referral did not result in prosecution.
attachment b
U.S. Department of Labor,
Washington, DC. 20210,
April 25, 2006.
Ms. Carolyn W. Merritt, Chairman,
U. S. Chemical Safety and Hazard Investigation Board,
2175 K Street NW, 4th Floor,
Washington, DC. 20037-1809.
Dear Chairman Merritt: This is in response to your February 3, 2006
letter requesting Occupational Safety and Health Administration (OSHA)
files and interviews with OSHA personnel in relation to inspections of
BP Texas City Refinery (BP TCR).
The following inspection files were sent to the U. S. Chemical
Safety and Hazard Investigation Board's (CSB) Don Holmstrom by Janice
Holmes, Deputy Regional Solicitor, Region VI, on February 9, 2006. A
copy of the transmittal letter is enclosed.
1. Inspection files requested in your letter:
306480153 (``March 30, 2004 Ultraformer furnace fire'');
308315910 (``May 25, 2004 OSHA inspection fire'');
308316942 (``May 27, 2005 Ultraformer UU4 pipe corrosion
incident'');
308316314 (``July 28, 2005 Resid Hydrotreater Unit RHU
incident''); and
308316322 (``August 10, 2005 Gas Oil Hydrotreating Unit
incident.'')
2. Additional information provided relates to the following
inspection file numbers:
308314632;
308316751;
308314996;
3083155019; and
308314988.
The requested inspection file related to ``[t]he August 8th,
fatality incident involving a contract employee from Reactor Services
International'' was sent to Mr. Holmstrom on March 15, 2006. A copy of
the transmittal letter is enclosed.
We are making Agency personnel available for interviews. We also
note that you have acknowledged the concerns related to the criminal
referral of the two BP incidents and have indicated that your
interviewer will not ask questions related to the March 23, 2005 and
September 2, 2004 incidents. OSHA will have the Region VI Deputy
Regional Solicitor, Janice Holmes, present during all interviews to
protect any privileges and confidential material and to ensure that
material related to the two incidents still under investigation is not
inadvertently discussed. The interviews can not be recorded or
transcribed. The CSB's interviewer is welcome to memorialize the
interviews by taking notes. Additionally, we ask that the interviews be
conducted in our OSHA Houston-South Area Office. At this time, we are
able to make the following individuals from the Houston-South Area
Office available: James Lawrence and Terry Stibel.
The individuals listed below and mentioned in your letter all
participated in the BP inspections subject to the criminal referral.
Pursuant to advice from the Department of Justice, they will not be
made available at this time: Terry Wilkins, Charles Williams, and Mike
Marshall.
As indicated in your letter, John Miles has retired and no longer
works for OSHA. Therefore, he is no longer subject to a request to this
Agency. Mr. Miles has indicated to us that he may consent to an
interview if Deputy Regional Solicitor Janice Holmes is present. The
Department will make her available for the interview.
In your letter you indicate the CSB will not sign a confidentiality
agreement prohibiting the use of information for public dissemination
in its final report. Similarly, the CSB has not responded to Janice
Holmes' earlier oral request that such an agreement be signed. Under
these circumstances, we will be unable to provide written and oral
information designated by BP as business confidential, as well as
personal identifiers of government informants.
Please have Mr. Holmstrom contact Richard Fairfax, Director of
OSHA's Directorate of Enforcement Programs (202-693-2100), to
coordinate arrangements for the interviews. We will continue to assist
the CSB in your important investigation of the BP TCR.
Sincerely,
Edwin G. Foulke, Jr.
______
U.S. Department of Labor,
Occupational Safety and Health Administration,
Washington, DC. 20210,
January 19, 2007.
Mr. Don Holmstrom, Investigator,
U.S. Chemical Safety and Hazard Investigation Board,
2175 K Street, NW, Suite 400,
Washington, DC. 20037.
Dear Mr. Holmstrom: This letter constitutes OSHA's response to your
July 17, 2006 interrogatories and records request The Solicitor's
Office will respond to Chris Warner's letter to Howard Radzely,
Solicitor of Labor, dated November 16, 2006.
Your letter refers to the CSB's ongoing investigation of the March
23, 2005, explosions and fire at the BP Texas City oil refinery. As you
know, and in accord with the Memorandum of Understanding between our
agencies, OSHA has cooperated fully with that investigation, and has
provided the CSB with extensive information about the Texas City
refinery, and the conditions there.
Your July 17 letter, however, does not ask for information about
the 2005 Texas City explosion and fire. Instead, it primarily requests
extensive information on internal OSHA operations relating to overall
enforcement of the Process Safety Management (PSM) Standard, 29 CFR
1910.119, especially OSHA's program quality verification (PQV)
inspections and the OSHA personnel involved in those inspections.
Specifically, you request material related to: (1) OSHA's plans for
scheduling PQV inspections, including specific targeting information,
for all plans from 1995 to 2005; (2) any internal evaluations of those
plans; (3) detailed information about every single PQV inspection
conducted pursuant to those plans, as well as access to OSHA's Office
of Statistics to obtain even more detailed data; and (4) the names and
qualifications, including education and experience, of every OSHA
Compliance Safety and Health Officer (CSHO) assigned to conduct PSM and
PQV inspections.
This request is a departure from prior CSB practice and addresses
issues that are committed to the exclusive discretion of the Secretary
of Labor. The Clean Air Act Amendments of 1990 (CAAA), Public Law 101-
549, November 15, 1990, which created the CSB, authorize the CSB to
propose ``corrective steps to make chemical production, processing,
handling and storage as safe and free from risk of injury as is
possible and [to] include in such reports proposed rules or orders
which should be issued by . . . the Secretary of Labor under the
Occupational Safety and Health Act to prevent or minimize the
consequences of any release . . .'' (emphasis supplied). The CAAA
contains no indication that the CSB is authorized to provide oversight
of OSHA's internal operations.
The Senate Report to the CAAA, which comprises virtually the entire
legislative history relevant to the CSB, also explains that the CSB was
intended to function ``as an organizational stimulus to an appropriate
amount of regulatory activity.'' CAAA, Senate Report No. 101-228,
December 20, 1989 (``Senate Report''). \1\ This was described as an
appropriate alternative to having Congress enact specific statutory
requirements for ``accident prevention'' regulations, a course of
action the report recognized ``might be counterproductive.'' Ibid. This
focus on accident prevention is consistent with the OSH Act, which
authorizes OSHA to promulgate standards that are ``reasonably necessary
or appropriate to provide safe or healthful employment and places of
employment,'' and places the duties to comply with OSHA standards and
to provide a safe workplace with the employer. 29 USC 652(8); 654(a).
---------------------------------------------------------------------------
\1\ The Senate Report refers only to regulatory activity by the
EPA, because the version of the statute under consideration at the time
the report was prepared did not mention OSHA or the Secretary of Labor.
OSHA was added later, with the CSB having authority to make the same
type of recommendations to both agencies.
---------------------------------------------------------------------------
Consistent with this Congressional intent, the CSB has historically
focused its investigations on an analysis of the specific causes of
accidental releases, and on identifying potential gaps in OSHA
standards that may have contributed to those causes. CSB's
recommendations have suggested filling those gaps or issuing
interpretative guidance to clarify the application of existing OSHA
standards. We believe this focus on advising OSHA how its standards can
best be formulated or explained to prevent or mitigate accidental
releases is appropriate.
In contrast, OSHA's internal operations and resource allocations do
not appear to be within the scope of authorized CSB recommendations.
Moreover, because the CSB is only authorized to address a discrete
subset of the hazards within OSHA's responsibility, the CSB could not
rationally consider how OSHA's PSM enforcement strategy and resource
allocation fits into OSHA's total enforcement program. In accord with
established Federal law, OSHA's enforcement strategy is committed
entirely to OSHA's discretion.
The information in request numbers 6 and 18 does not relate to
internal OSHA operations; however, OSHA does not have any of the
requested documents available at this time. The files relating to the
Texas City inspection referred to in request 6 have been destroyed
pursuant to OSHA's record retention policies. Request 18 seeks the type
of information about workplace injury and illness rates that OSHA
normally calculates when performing a programmed inspection. OSHA uses
those rates to decide how comprehensive an inspection to perform. The
inspections referred to in this request however, all occurred in
response to catastrophic events, so OSHA would have conducted
comprehensive investigations regardless of the facilities' injury and
illness rates; therefore it may not have looked at the logs or recorded
the injury and illness rates during those investigations. In addition,
we note that two of the accidents involved occurred in State plan
States (California and Washington), and likely were not investigated by
Federal OSHA. Nonetheless, we have requested that any relevant files
responsive to this request be retrieved from the Federal Archives, and
we will provide the requested documents if they exist.
OSHA is declining to provide the records and information in the
remaining records requests and the interrogatories for the reasons
explained above. In addition, I note that even if it were appropriate
for OSHA to provide some of these documents, pursuant to Federal record
retention policies the majority of the records you request either have
been destroyed or are otherwise unavailable.
OSHA remains committed to continued cooperation with CSB, as called
for by the CAAA and the 1998 MOU. We recognize that Congress has given
both OSHA and the CSB important functions to perform, and that both
agencies have roles in protecting the safety and health of employees
who may be exposed to chemical releases. We look forward to working
with the CSB to achieve this goal.
Sincerely,
Richard E. Fairfax, Director,
Directorate of Enforcement Programs.
attachment c
CSB Recommendations to OSHA Related to the BP TCR Investigation
------------------------------------------------------------------------
Implementation
CSB recommendation OSHA's response status
------------------------------------------------------------------------
2005-4-I-TX-R5.................. Prior to the Completed. The
1. Implement a national emphasis issuance of this Refinery NEP was
program for all oil refineries recommendation to implemented on
that focuses on: OSHA, the Agency June 7, 2007 and
The hazards of blowdown was in the is expected to be
drums and stacks that release process of completed by June
flammables to the atmosphere developing a 7, 2009.
instead of to an inherently national emphasis
safer disposal system such as a program to
flare. Particular attention inspect petroleum
should be paid to blowdown refineries. Since
drums attached to collection CSB issued this
piping systems servicing recommendation,
multiple relief valves; OSHA has
The need for adequately implemented the
sized disposal knockout drums Petroleum
to safely contain discharged Refinery Process
flammable liquid based on Safety Management
accurate relief valve and National Emphasis
disposal collection piping Program (Refinery
studies. NEP), which among
other
requirements,
instructs
inspectors to
evaluate blowdown
systems at all
refineries in
Federal
jurisdiction. All
the specific
issues addressed
by CSB related to
blowdowns as well
as others are
addressed in
Appendix A,
Section C of the
Refinery NEP.
------------------------------------------------------------------------
2005-4-I-TX-R5.................. The Refinery NEP Completed. See
2. Urge States that administer strongly Section VII,
their own OSHA plan to encourages OSHA Federal Program
implement comparable emphasis State-Plan States Change of the
programs within their to adopt the NEP. NEP.
respective jurisdictions. The Refinery NEP
was implemented
on June 7, 2007.
OSHA expects that
most, if not all,
State-Plan States
will adopt the
NEP.
------------------------------------------------------------------------
2005-4-I-TX-R8
1. Strengthen the planned
comprehensive enforcement of
the OSHA Process Safety
Management (PSM) standard. At a
minimum:
------------------------------------------------------------------------
1.a.a. Identify those facilities Prior to the Completed. The
at greatest risk of a issuance of this Refinery NEP was
catastrophic accident by using recommendation to developed as a
available indicators of process OSHA, the Agency result of a data
safety performance and was in the review of the
information gathered by the EPA process of, types of
under its Risk Management determining which facilities which
Program (RMP). facilities and experience the
inspection types of
strategy it incidents PSM was
should employ to promulgated to
conduct prevent and
additional mitigate, i.e.
programmed fatal and
inspections at catastrophic
PSM-covered incidents which
facilities. From are a result of
a review of the release of
OSHA's IMIS data highly hazardous
base, the Agency chemicals.
determined that
petroleum
refineries had
experienced more
fatal and
catastrophic
incidents since
1992
(promulgation of
PSM) than the
next 3 industry
sectors combined.
From this data,
OSHA decided that
based on their
history,
petroleum
refineries
presented a great
risk and
consequently the
Agency developed
the Refinery NEP
to address
catastrophic type
hazards covered
by PSM.
OSHA believes that
its PSM fatality
study it
conducted based
on its IMIS
database provides
as good if not
better indicator
of facilities at
greatest risk of
catastrophic type
hazards as does
EPA's RMP 5 Year
Accident Database.
Note: OSHA is
currently
updating its
general PSM
compliance
directive. This
directive covers
all PSM-covered
processes, not
just refineries.
As such OSHA is
evaluating
possible
inspection
targeting systems
which will put
our inspectors in
facilities which
are at greatest
risk of
catastrophic
releases of
highly hazardous
chemicals. We are
evaluating
leading and
lagging
indicators that
are publicly
available that
would be
appropriate for
use as targeting
tools for the
Agency.
------------------------------------------------------------------------
1.b. Conduct, or have conducted, OSHA has developed Completed. The
comprehensive inspections, such and implemented, Refinery NEP was
as those under your Program Petroleum implemented on
Quality Verification (PQV) Refinery Process June 7, 2007 and
program at facilities Safety Management is expected to be
identified as presenting the National Emphasis completed by June
greatest risk. Program (Refinery 7, 2009.
NEP). It contains
an inspection
strategy which
utilizes
"Inspection
Priority Items"
(IPI) that we
feel is a better
inspection
strategy for
conducting PSM
inspections at
refineries than
our PQV
inspection
strategy. See the
Refinery NEP,
Section X.D.,
Inspection
Process for a
description of
the IPI
inspection
strategy.
Note: Inspections
conducted under
the NEP are
programmed
comprehensive
inspections.
------------------------------------------------------------------------
1.c. Establish the capacity to Last summer and Completed/On-
conduct more comprehensive PSM prior to the going.
inspections by hiring or CSB's
developing a sufficient cadre recommendation,
of highly trained and OSHA began an
experienced inspectors. accelerated
training
initiative for
its compliance
officers (CSHOs)
to conduct PSM
inspections. In
fiscal year 2007,
OSHA trained 184
Federal students
in PSM courses
with another 110
estimated to
complete courses
by the end of the
fiscal year, for
a projected total
of 294. Please
note that other
OSHA personnel
who had received
PSM training
prior to our
current
initiative are
available to
conduct PSM
inspections.
------------------------------------------------------------------------
1.d Expand the PSM training See above response Completed.
offered to inspectors at the
OSHA National Training
Institute.
------------------------------------------------------------------------
2005-4-I-TX-R9.................. OSHA is currently Evaluating
(CSB2005-04-I-TX-R9) 2. Amend evaluating this recommendation.
the OSHA PSM standard to CSB
require that a management of recommendation
change (MOC) review be and will respond
conducted for organizational to CSB when we
changes that may impact process have determined
safety including:. the Agency's
a. major organizational changes course of action.
such as mergers, acquisitions,
or reorganizations;.
b. personnel changes, including
changes in staffing levels or
staff experience; and.
c. policy changes such as budget
cutting..
------------------------------------------------------------------------
[Whereupon, at 11:45 a.m., the hearing was adjourned.]