Hilda Solis didn't pull any punches at her March 13 swearing in ceremony as the new Secretary of Labor.
"To those who have, for far too long, abused workers, put them in harm's way, denied them fair pay, let me be clear: There is a new sheriff in town," she told the crowd gathered to hear her speak.
The new sheriff comes with strong pro-worker credentials. In her four terms as a member of the U.S. House, and earlier in the California legislature, Solis pushed for minimum wage hikes. She co-sponsored the Protecting America's Workers Act, which increases penalties for worker safety violations and requires employers to pay for personal protective equipment.
And she is a strong supporter of the Employee Free Choice Act (EFCA), which would make union organizing easier and mandate arbitration for first contracts. EFCA is the No. 1 legislative priority of the nation's unions. Considering her record, it comes as little surprise that the AFL-CIO has given Solis a near-perfect score on voting for their causes.
"The whole history of what she has done in California as well as in the House of Representatives is to promote legislation that is pro-worker and pro-labor," says John Bowen, a partner at Ford & Harrison.
Solis' support for unions grows directly out of her life story: She was the child of Latin American immigrant parents who supported their family of seven children with union jobs. She noted in her acceptance address that her father was a union shop steward, and his membership in the union helped her family obtain health and other benefits.
"She credits her success to her father's job as a union member and the benefits he got," says D. Albert Brannen, a partner at Fisher & Phillips. "She is of the perspective that unions provide these benefits, not companies."
As a Cabinet member, Solis becomes the voice for labor policy in the new administration. She can expect support from her boss for pro-labor initiatives: President Obama already has signed pro-union executive orders affecting government contractors (see "Contractor Constraints"). And Solis' clear statement of intent to beef up enforcement of worker safety and wage-and-hour regulations puts employers on notice that they better get their houses in order.
"These are scary times for employers," Brannen says. "Even if there is no change in the laws, there will be a sea change in the way labor laws are enforced."
Safety First
That sea change may start with new Occupational Safety and Health Administration (OSHA) regulations. During the Bush administration, OSHA didn't promote any new rules that Congress did not mandate, according to Jay Sumner, a shareholder at Littler Mendelson. Solis has moved quickly to demonstrate that she has a different agenda. Just three days after taking office, she announced that OSHA was withdrawing a previously announced rulemaking procedure on occupational exposure to diacetyl, a chemical used in microwave popcorn that has been linked to a serious lung condition. That move allows OSHA to more quickly develop diacetyl standards, a fast-track approach that Sumner expects to become the new norm.
"Workplace safety is dear to her heart," Sumner says. "We expect more rulemaking and expedited rulemaking by OSHA. Employers will have to be on the lookout to implement new rules as they come forward."
On the enforcement side, under the Bush administration OSHA took a conciliatory approach, stressing training and outreach instead of punishment for safety violators. That, too, is expected to change.
"I don't think you'll see as much extending of the olive branch, trying to help employers [as under the Bush administration]," Brannen says. "Instead you will see high profile cases where they make an example of noncompliant employers."
Overtime Offensive
Rules governing wage-and-hour law also may change. For example, the Bush administration modified the test determining which workers are exempt from overtime pay so that fewer workers qualified for overtime.
"The Bush administration made some pretty dramatic changes," Sumner says. "Organized labor said they took people who should get overtime out of the ranks. The labor unions would like to see the bar raised again."
The Bush Labor Department was more aggressive about enforcing overtime laws than OSHA violations, but toward the end, the administration cut funding for the wage-and-hour division, resulting in a reduced enforcement staff, according to Sumner. In the Obama budget, the Labor Department gets an additional $2 billion. "They will be staffed up so they can enforce the law," he adds. "It's a matter of priorities and money."
W. Melvin Haas III, a partner at Constangy, Brooks & Smith, thinks small business will suffer most from the stepped-up enforcement. And he doesn't think Solis, whose entire career has been in the public sector, has the experience necessary to understand the needs of business.
"There are so many small businesses that don't understand the nuances and ramifications of the overtime laws," he says, adding that the vast majority intend to treat their employees well but make mistakes because they lack the resources to keep abreast of all the labor laws. "That is a perspective [Solis] doesn't have because of her lack of business experience."
Clean House
While Solis has spoken out strongly for union causes and worker protection, there is a chance that she will be less of a nemesis than business advocates fear. With the economy in a tailspin, she may need to pull back from moves that could jeopardize jobs.
"The danger is that the more difficult the Obama administration makes it on business, the more difficulty business has and the fewer employees we will have," Haas says. "It doesn't make sense to make it hard on business."
Bowen points out that although she is a strong advocate for workers, Solis has shown the ability to compromise in order to build consensus when necessary.
"She had to make compromises to get the Green Jobs Act through [Congress]," he says. "That shows that she is politically savvy. She hasn't turned out to be so ardent that she isn't willing to compromise."
But Bowen and the other attorneys interviewed agree that with the regime change at the Labor Department, forewarned is forearmed.
"Employers need to make sure on safety and wage-and-hour issues that they get their house in order so they can deal with any compliance issues," Bowen says.
