Labor Dept. Accused of Straying From Enforcement

By Michael A. Fletcher
Washington Post Staff Writer
Monday, December 1, 2008

The next labor secretary will be taking charge of an agency widely criticized for walking away from its regulatory function across a range of issues, including wage and hour law and workplace safety.

"My view is that this is a deeply troubled department," said Scott Lilly, a senior fellow at the Center for American Progress, who has written several reports critical of the agency's operation under the Bush administration. "As bad as the personnel situation may be in many departments, I think it tends to be worse in the Labor Department than in most places. "I think you've got people embedded there who are philosophically hostile to the mission of the agency."

There are few federal agencies where the ideological differences separating many Democrats and Republicans play out more plainly. Labor is one of the government's largest regulatory enforcement agencies, overseeing issues from overtime payments and pension regulations to workplace safety and training programs. The agency has a total budget of $50.4 billion and 16,800 employees.

Many businesses say the agency's enforcement regime often becomes onerous under Democratic administrations, leading to burdensome reporting requirements and a type of punitive enforcement that they say stifles economic growth. They applaud Republican administrations for focusing more on helping companies abide by the law than on penalizing those who violate it. So they are bracing for a big shift.

"With the new administration, I think you are going to a shift from compliance assistance to pure enforcement," said Randel K. Johnson, a vice president of the U.S. Chamber of Commerce.

Labor activists say that focusing so closely on the concerns of employers shortchanges workers and that a shift in emphasis is long overdue. Under President Bush, they say, the pendulum has swung far away from enforcement, leaving workers vulnerable to dangerous workplaces and with little protection from exploitive employers.

In July, the Government Accountability Office issued a report alleging that the Labor Department did an inadequate job of investigating complaints by low-wage workers who alleged that their employers were stiffing them for overtime, or failing to pay the minimum wage. That report followed another that found troubling inconsistencies in how the department handled individual worker complaints. Department officials have disputed both reports, calling them inaccurate.

Still, they caught the attention of President-elect Barack Obama, who while campaigning in July fired off a letter to Labor Secretary Elaine L. Chao expressing "serious concern" that the agency was not fulfilling its enforcement mission.

"It is important that the department put procedures into place that will lead to improvements in the enforcement of workers' rights," Obama wrote. "This is the core mission of the department and failing to adequately enforce the Fair Labor Standards Act is unacceptable."

This was not the first time Labor has been accused of not living up to its regulatory mandate. A report last year by the department's inspector general found that mine safety regulators did not conduct federally required inspections at more than 14 percent of the country's 731 underground coal mines during the previous year -- when the number of worker deaths in mining accidents more than doubled to 47.

The Bush administration's budget constraints and a lack of management emphasis on worker safety are responsible for the lapses, the report said.

"Bigger than any legislative change that may be out there is the question of funding," said Mike Asensio, a partner in the law firm Baker Hostetler who specializes in labor law. "The criticism is that because funding for enforcement has been cut, they don't have enough investigators out in the field."

Those problems extend to the Occupational Safety and Health Administration, which oversees most workplace safety. It has seen its budget shrink each year Bush has been in office when inflation is taken into account, according to an analysis by the watchdog group OMB Watch. And while the overall budget fell by 5 percent, the enforcement budget is down 8 percent for Bush's tenure.

That decline continued a trend that saw the rate of OSHA workplace inspections reduced by nearly two-thirds between 1980 and 2005. Department officials have defended their emphasis, saying voluntary compliance has led to steady reductions in on-the-job injuries.

One area where the department became a more rigorous enforcer was in the oversight of labor unions, critics say. New rules required more rigorous financial reports from about 20,000 union locals.

The Bush administration said the reporting requirements better informed workers how unions spent their money. Critics differed. The administration "used that as a tool to weaken and discredit organized labor," Lilly said.

During the campaign, Obama promised to be supportive of organized labor and to step up enforcement of workplace safety regulations. He also said he would work to expand the reach of the Family and Medical Leave Act, which allows workers to take time off to care for relatives. He also has voiced support for the rights of workers to strike without having to worry about being permanently replaced.

"The Bush administration had abdicated its responsibility to protect workers," said Thea Lee, policy director of the AFL-CIO. "We have high hopes that we will see a dramatic change of direction under the Obama administration."

Moreover, union officials said they are hoping the agency -- which has been a backwater in some administrations -- will have a strong voice in the administration's economic policy, speaking up for the workers in a fast-shifting economy.

"It is time for this country to come to grips with the fact that this is not our grandfather and father's economy," said Andy Stern, president of the Service Employees International Union. "How do you deal with the fact that my son will have nine jobs between the age of 22 and 35, and pensions and health care are built around the idea of somebody having one job? The Labor Department has to find new policies and new ways to think about work."

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