[Senate Hearing 108-328]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 108-328

                    NOMINATION OF HOWARD M. RADZELY

=======================================================================

                                HEARING

                               BEFORE THE

                    COMMITTEE ON HEALTH, EDUCATION,
                          LABOR, AND PENSIONS
                          UNITED STATES SENATE

                      ONE HUNDRED EIGHTH CONGRESS

                             FIRST SESSION

                                   ON

       HOWARD M. RADZELY TO SOLICITOR OF THE DEPARTMENT OF LABOR

                               __________

                             JULY 29, 2003

                               __________

 Printed for the use of the Committee on Health, Education, Labor, and 
                                Pensions




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          COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS

                  JUDD GREGG, New Hampshire, Chairman

BILL FRIST, Tennessee                EDWARD M. KENNEDY, Massachusetts
MICHAEL B. ENZI, Wyoming             CHRISTOPHER J. DODD, Connecticut
LAMAR ALEXANDER, Tennessee           TOM HARKIN, Iowa
CHRISTOPHER S. BOND, Missouri        BARBARA A. MIKULSKI, Maryland
MIKE DeWINE, Ohio                    JAMES M. JEFFORDS (I), Vermont
PAT ROBERTS, Kansas                  JEFF BINGAMAN, New Mexico
JEFF SESSIONS, Alabama               PATTY MURRAY, Washington
JOHN ENSIGN, Nevada                  JACK REED, Rhode Island
LINDSEY O. GRAHAM, South Carolina    JOHN EDWARDS, North Carolina
JOHN W. WARNER, Virginia             HILLARY RODHAM CLINTON, New York

                  Sharon R. Soderstrom, Staff Director

      J. Michael Myers, Minority Staff Director and Chief Counsel

                                  (ii)

  



                            C O N T E N T S

                               __________

                               STATEMENTS

                         TUESDAY, JULY 29, 2003

                                                                   Page
Gregg, Hon. Judd, a U.S. Senator from the State of New Hampshire.     1
Kennedy, Hon. Edward M., a U.S. Senator from the State of 
  Massachusetts..................................................     2
Radzely, Howard M., nominee to be solicitor of the Department of 
  Labor..........................................................     4

                          ADDITIONAL MATERIAL

Statements, articles, publications, letters, etc.:
    Howard M. Radzely............................................    32
    Response to questions of Senator Kennedy from Howard M. 
      Radzely....................................................    34

                                 (iii)

  

 
 NOMINATION OF HOWARD M. RADZELY TO BE SOLICITOR FOR THE DEPARTMENT OF 
                                 LABOR

                              ----------                              


                         TUESDAY, JULY 29, 2003

                                       U.S. Senate,
       Committee on Health, Education, Labor, and Pensions,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 10:02 a.m., in 
room SD-430, Dirksen Senate Office Building, Senator Gregg 
(chairman of the committee) presiding.
    Present: Senators Gregg, Enzi, Kennedy, Harkin, Murray, 
Reed, and Clinton.

                   Opening Statement of Senator Gregg

    The Chairman. We will get started. Senator Kennedy is on 
his way, and I can make my statement and then he can make his 
and then we can hear from the witness and that will expedite 
the process.
    Today, we are participating in a hearing on the nomination 
of Howard Radzely to be Solicitor of the Department of Labor. 
He is joined today by his wife, Lisa, and his son, Brendan, and 
other members of his family. We very much appreciate their 
taking the time to come and appreciate Mr. Radzely's 
willingness to participate in this hearing and to be willing to 
serve his government and his country, which is sometimes a 
financial sacrifice, but it is very much appreciated.
    The hearing will focus, of course, on the office of 
Solicitor, which is an extremely important office in the 
Department of Labor because it is basically the office that 
protects working Americans.
    Mr. Radzely's career is exemplary. I believe he brings to 
the office a tremendous amount of knowledge, capability, and 
certainly expertise. Prior to joining the Department of Labor, 
he was with the Law Office of Wiley, Rein and Fielding, 
concentrating on labor and employment law. He graduated summa 
cum laude from the University of Pennsylvania, Wharton School 
of Business, and magna cum laude from Harvard Law School, where 
he was on the Harvard Law Review. Prior to his going into the 
Labor Department and his private practice, he was a clerk for 
the Honorable Judge Michael Lutek of the Fourth Circuit Court 
of Appeals and for Antonin Scalia, of course, of the U.S. 
Supreme Court.
    We are fortunate, in my opinion, to be able to attract to 
public service people of the caliber of Mr. Radzely. As I 
mentioned earlier, he makes a sacrifice financially to do this 
type of a job, but that sacrifice is to our benefit because he 
brings with him such exceptional talent, ability, and 
capability.
    So it is a great privilege to have a chance to hear from 
Mr. Radzely and get his ideas on what the Solicitor's Office 
should involve and how it should work.
    I would now turn to Senator Kennedy, who I note today has 
reached the ultimate in acknowledgment of career success as he 
is a question on the Washington Post crossword puzzle.
    Senator Kennedy. There you go. [Laughter.]
    Depending on what the question was. [Laughter.]
    Skilled legislator, bipartisan----
    The Chairman. Koppel or Kennedy? [Laughter.]

                  Opening Statement of Senator Kennedy

    Senator Kennedy. Thank you very much, Mr. Chairman, for 
calling this hearing on Mr. Radzely's nomination to be the 
Solicitor of the Labor Department.
    As the number three official in the Department of Labor, 
the Solicitor provides advice and guidance on virtually every 
policy and enforcement initiative of the Department on issues 
of vital importance to working families. Since many of the key 
protections in labor laws do not include a private remedy, the 
Solicitor of Labor is their lawyer, too. So his decisions on 
how vigorously to enforce specific rights affects millions of 
workers every year.
    Mr. Radzely has been serving as Deputy Solicitor and Acting 
Solicitor in the Department for the past 2 years and had key 
roles in initiatives of the Department that are a major concern 
for working families.
    The Department's proposed overtime regulation would deny 
overtime protections to more than eight million hard-working 
men and women, including 200,000 workers in Massachusetts. 
Firefighters, police officers, nurses, retail clerks, medical 
technicians, military reservists, tech workers, and many others 
would be affected by the regulations. With a failing economy 
and more than nine million Americans out of work, with so many 
of our other families working to make ends meet, cutbacks in 
overtime are a sudden unfair burden that American workers 
should not have to bear.
    The Fair Labor Standards Act was enacted in the 1930s to 
create a 40-hour work week and require workers to be paid 
fairly for any extra hours. Especially in times like these, it 
is an incentive for job creation because it encourages 
employers to hire more workers instead of forcing current 
employees to work longer hours.
    We know that today's economy is continuing to hemorrhage 
jobs. It makes no sense for the administration to propose a 
regulation that will discourage new hiring and hurt those who 
do have jobs. How can the Labor Department approve a rule that 
so clearly benefits employers at the expense of working 
American men and women?
    The unemployment rate is at a nine-year high. Three-point-
four million Americans have lost their jobs since the 
administration took office. Long-term unemployment, those out 
of work for more than 6 months, has tripled. The administration 
has only grudgingly approved an extension of the unemployment 
benefits for some workers, but 1.1 million of the long-term 
unemployed are out of work and out of benefits. And despite 
repeated attempts in Congress to provide assistance for these 
workers, the administration insists on continuing to leave them 
out in the cold.
    Another important mission of the Department of Labor is to 
ensure that workplaces are safe and healthy. Once again, the 
administration refuses to face the most serious aspect of that 
problem, the ergonomic injuries reported by nearly two million 
American workers every year. Five-hundred-thousand lose time at 
work because the injuries are so debilitating and cost our 
economy $50 billion a year.
    The Department's comprehensive plan to deal with these 
injuries is supposed to include rigorous enforcement of current 
law, but the Solicitor's Office has issued only nine citations 
in this area in the last two-and-a-half years. None of them 
have been for the meat packing, hospitals, and automotive 
parts, three of the industries with the highest incidence of 
ergonomic injuries. Particularly online, we could only find 
actually six cases that were brought, but maybe you will be 
able to clarify. I know you refer to this in your testimony.
    In addition, this Department has failed to finalize safety 
regulations that have gone through the rulemaking stage. It has 
announced plans to withdraw regulations to protect health care 
workers against tuberculosis. That has been some 10 years, and 
we still have 16,000 people that die from tuberculosis every 
year, a very modest decline in that. Just because the CDC 
issues a regulation, it is not mandatory for the Department to 
withdraw theirs with all of the other kinds of protections on 
it. At a time when we are looking at airborne diseases, 
pathogens, SARS, and others, I hope the nominee will be able to 
talk about the reasons for it.
    The Solicitor's job is to oversee and enforce these rules 
to protect the health and safety of workers every day. It is 
hard to see how withdrawing regulations or failing to enforce 
existing protections is in compliance with that responsibility.
    There is one area where the Department has not hesitated to 
regulate, imposing new reporting requirements on unions. The 
Department has asked them to file schedules that could be 
hundreds of pages long with itemized lists of all payments 
above $2,000. It is absurd to pretend these requests are 
supposed to help union members. They are intended to help union 
breakers by imposing millions of dollars of new costs on 
unions.
    Agencies are supposed to issue regulations only after 
careful consideration of their burdens and their benefits. For 
small entities like local unions, the regulations are supposed 
to be the least burdensome way to achieve the goal. The 
Department today has ridden roughshod over these protections, 
ramming through a regulation to force unions to wallow in red 
tape and distract them from seeking better wages, benefits, and 
better working conditions.
    Issues like these and many others are vital for every hard-
working man and woman. We need to explore them in detail with 
the nominee.
    Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator Kennedy.
    Mr. Radzely, we would be happy to hear your thoughts, 
however you wish to present them, either in a written statement 
or orally.

  STATEMENT OF HOWARD M. RADZELY, NOMINEE TO BE SOLICITOR OF 
                             LABOR

    Mr. Radzely. Thank you, Mr. Chairman, Senator Kennedy, 
distinguished members of the committee. With your permission, I 
would like to summarize my written statement and I request that 
my written statement be included in the record of these 
proceedings.
    The Chairman. It will be.
    Mr. Radzely. Thank you. It is an honor to appear before you 
today as you consider my nomination to be the Solicitor 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 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.
    Finally, I would like to thank my wife, Lisa, and three-
and-a-half-year-old son, Brendan, for all the sacrifices they 
have made to allow me to serve in the government and for the 
sacrifices they will make if I am confirmed to be the 
Solicitor.
    Prior to joining the Department of Labor, I was in private 
practice here in Washington, DC. The main focus of my practice 
was advising clients, primarily employers, how to comply with 
the various labor and employment laws, such as the Fair Labor 
Standards Act, Executive Order 11246, the Family and Medical 
Leave Act, the Occupational Safety and Health Act, the Service 
Contract Act, and many others.
    Since coming to the Department in June 2001, I have had the 
opportunity and privilege of working with the employees of the 
Solicitor's Office, some of the finest attorneys and public 
servants I have known. In my view, the Solicitor's Office has 
two distinct but vitally important roles.
    First and foremost, the Solicitor's Office has the 
important responsibility of working in tandem with the 
individual agencies of the Department to vigorously enforce the 
laws under the Department's jurisdiction. Unlike most cabinet 
agency general counsel's offices, the Solicitor's Office has 
the authority to litigate cases in a wide variety of areas.
    Second, the Solicitor's Office provides legal advice to the 
Secretary and the agencies in the Department on a wide array of 
legal matters that arise under the nearly 200 laws that the 
Department administers and enforces.
    With regard to enforcement, it is important for the 
Solicitor's Office to vigorously prosecute cases and to use the 
full range of legal tools at its disposal. Through judicious 
use of all of its enforcement tools, the Department can obtain 
justice for those who have been treated unfairly in violation 
of the law and can deter those who might choose to violate the 
statutes and regulations enforced by the Department.
    For example, I have urged Solicitor's Office attorneys to 
make expanded use of Section 11(b) of OSH Act, a provision 
which had been rarely used. This statutory authority allows the 
Department to seek contempt and significantly greater 
sanctions, rather than filing a failure to abate proceeding, in 
the event the employer violates a Commission order.
    I also believe that it is especially important for the 
Department to focus enforcement efforts on employers who 
exploit, among others, low-wage and vulnerable workers, as well 
as on employers who repeatedly violate the laws enforced by the 
Department. Low-wage and vulnerable workers are the workers who 
most need our assistance and who can most benefit from the 
Department's aggressive actions to protect their rights.
    In the 7 months since I became Acting Solicitor in January 
of this year, the Solicitor's Office has initiated a number of 
major enforcement actions in various program areas. For 
example, last month, the Department filed suit against Enron 
and various individuals for breach of fiduciary duty. In the 
OSHA area, since I became Acting Solicitor in January of this 
year, the Department has issued nine ergonomic citations in a 
variety of industries under the OSH Act's General Duty Clause.
    To take one other example, from the civil rights area, as 
Acting Solicitor, I recently authorized the filing of the 
second systemic compensation discrimination case by the 
Department in over 25 years. The only other systemic 
compensation discrimination case filed by the Department in the 
last quarter-century was one that I authorized while Acting 
Solicitor in 2001.
    In addition to approving enforcement actions and working 
with attorneys to strengthen those actions, I have also 
intervened in cases when such intervention would facilitate 
reaching favorable settlements. For example, I worked with 
career civil servants in the Solicitor's Office and Wage and 
Hour Division to negotiate one of the largest wage and hour 
settlements ever, a $10 million settlement with Perdue for 
failing to compensate employees for donning and doffing.
    Regarding the second important mission of the Solicitor's 
Office, the legal advisory functions, I believe that attorneys 
must provide their clients with clear, concise, easy-to-
understand legal advice that is based on a careful review of 
all relevant legal authorities. Whether it is legal advice on a 
newly-passed statute, an ethics issue, a proposed or final 
regulation, or any other question, attorneys must inform their 
clients of the range of options that are legally available and 
the legal risks attendant to or prohibitions on a particular 
course of action.
    In conclusion, the Department of Labor's Solicitor's Office 
has a long and proud tradition of protecting America's workers 
and providing sound legal advice to its client agencies. I 
appreciate the great responsibility that I will bear if 
confirmed for the difficult and challenging job as Solicitor 
and understand the need to carry on the office's great 
tradition.
    Thank you again for considering my nomination and I would 
be pleased to answer any questions that you may have.
    The Chairman. Thank you, Mr. Radzely, for that excellent 
statement.
    I am going to reserve my questions and yield to Senator 
Kennedy.
    Senator Kennedy. Thank you very much, Mr. Chairman.
    I would first like to get to the issue on the development 
of the overtime regulations. As we know, going back to 1938 
when the Fair Labor Standards Act was enacted, the basic read-
through of the history on this, the basic application of the 
overtime was virtually for all the workers except for the very 
high management group that was defined, that was put in sharper 
focus later on in the 1940s and 1950s. This is the area of the 
duties test. You had the two different aspects. One, you had 
what the salaries are going to be in terms of eligibility for 
overtime, then in the duties.
    It was quite clear that the spirit of that act was very 
clear, and that is that the great numbers of workers who are 
going to be working ought to be entitled for the overtime, and 
what has happened now is under the current administration, 
under the rules which have been accepted by the Department of 
Labor which you have been involved in now, the levels have been 
raised to some extent, but the duties have been redefined, 
which some estimates report will affect up to eight million 
workers. I know the Department of Labor doesn't accept those 
figures because they look at the figures of only those that are 
receiving overtime, as I understand it, not those that are 
eligible.
    But the message that is going out to all those workers, 
those eight million workers, they better understand that if 
this rule goes on through, the day after, school is going to be 
out and employers are going to be able to raise the 
requirements of those workers and they are not going to get it. 
They are not going to be able to get the overtime. These are 
scores of different kinds of occupations, and I think the eight 
million, quite frankly, is an underestimation of the total 
number.
    So this has major, major impact in terms of the workers in 
this country, and all this is at a time when workers in America 
are working a lot harder and a lot longer. We work, average 
workers are working 12.5 weeks more a year than the Germans, 
6.5 weeks longer than the Brits, 5 weeks longer than the 
Canadians, 3.5 weeks longer than the Japanese, 2.5 weeks longer 
than the Australians. American workers are working longer, 
harder, and they are not only working, but their wives are 
working longer and harder now.
    And now, along comes the administration with their 
proposal, which I think is a serious undermining of this 
commitment that was made years ago in terms of assuring both 
workers that they were going to be treated fairly on the issue 
of the 40-hour work week and undermines the commitment that 
those that are going to have the management skills would be 
excluded but others would be covered.
    I think it is very clear what the direction is, and that 
effectively, at least as far as I am concerned--as far as I am 
concerned--is the emasculation of the 40-hour work week. We 
have seen it come in other forms, comp time, other ways, but 
clearly, this is where it is going.
    Now, I am interested, did the Department follow the 
requirements of that Regulation 12866?
    Mr. Radzely. Yes, Senator. The Department did follow 
Executive Order 12866.
    Senator Kennedy. Which requires that you review the cost 
assessments both in terms of business and workers?
    Mr. Radzely. Yes, Senator, the Department did.
    Senator Kennedy. Do you have that material with you? Can 
you share that with us?
    Mr. Radzely. Senator, I don't have the material with me, 
but that was--the Department's analysis was laid out in the 
analysis as part of the Notice of Proposed Rulemaking.
    Senator Kennedy. But can we have that in this committee? 
Will you submit that for us to review?
    Mr. Radzely. I would be happy to, Senator.
    Senator Kennedy. And did you also follow that in terms of 
your issuing of your regulations on the L2?
    Mr. Radzely. Yes, Senator. We followed all applicable 
statute, rules, and regulations----
    Senator Kennedy. And you gave what the impact was going to 
be on business and workers?
    Mr. Radzely. Yes, the Department--the Employment Standards 
Administration for both regulations did do that analysis.
    Senator Kennedy. Do you remember what you did with regard 
to workers, because I have gotten a record with regard to what 
the implication was going to be in terms of the overtime to 
businesses, but I wasn't able to find anything on what the 
impact was going to be for workers.
    Mr. Radzely. Senator, again, this would have been analysis 
prepared by the Employment and Standards Administration, but I 
believe the analysis indicated that 1.3 million low-wage 
workers would be guaranteed overtime under the Department's 
proposal.
    Senator Kennedy. I am talking about the L2 regulations now, 
the L2, which requires you to get the impact on both the 
employers and the workers. I am familiar with what your 
submission was in terms of how it would reduce the burden on 
employers, but I didn't find the analysis of what the impact 
would be on the workers.
    Mr. Radzely. Senator, with regard to the LM2, and I 
apologize if I misunderstood your question earlier, the 
Department did prepare a detailed analysis as part of the 
Notice of Proposed Rulemaking. Again, that would have been 
prepared by the Employment Standards Administration. And in 
addition to that, there was a separate Paperwork Reduction Act 
analysis prepared, both of which were published in the Federal 
Register for comment.
    Senator Kennedy. Now, as I understand, you referred to the 
materials that you submitted with written responses, but those 
materials only included the unsupported numbers from the Office 
of Labor Management Standards. They don't have any information 
obtained directly from the unions about their finances or their 
technological or accounting abilities.
    Mr. Radzely. Senator, the Department's analysis was based 
on the best available information at the time. The Department, 
as this committee is aware, has received a substantial number 
of comments on the LM2 proposal. We are currently in the 
process of analyzing those comments, the Employment Standards 
Administration----
    Senator Kennedy. That is not my question. I know they are 
getting a number of comments. I am talking about when you 
issued it, what efforts you made in terms of it. We have seen, 
for example, in the SEC, before the SEC began its electronic 
filing, it spent 5 years developing the system, tested the 
system through a pilot program, finally adopted a phased-in 
schedule over 2 years. The process took nearly 10 years from 
adoption to final implementation and the SEC's implementation 
period after the software was already completed still took 4 
years.
    I want to know what you did or the Labor Department did. 
The only previous agency that has followed these kinds has been 
with the SEC and this is the extent that they went to. I can't 
find in reviewing the documents where you made any survey at 
all or any assessment about the capability or the competency of 
unions to be able to deal with these areas in terms of the 
computers.
    Mr. Radzely. Senator, the Employment Standards 
Administration and the Office of Labor Management Standards did 
an extensive outreach to unions prior to promulgating the 
Notice of Proposed Rulemaking, invited in a number of unions, 
many of whom took up the Department and met with the Department 
in a series of meetings in an effort to obtain information.
    Senator Kennedy. So the point is that you don't have--your 
answer is that they did, Employment Standards did outreach to 
them, but you don't have any of the kinds of surveys that were 
done about the number of unions and the rest, about how many 
unions are affected. I think it is 5,500 that are affected, 141 
of them are national. You are talking about reports in the L2 
of $200,000 or more. Do you know whether these regulations were 
consistent with the Generally Accepted Accounting Principles?
    Mr. Radzely. Senator, again, as I indicated in my written 
response, my involvement in the proposed stage was limited. I 
don't know specifically----
    Senator Kennedy. Well, they weren't.
    Mr. Radzely. --whether they are consistent----
    Senator Kennedy. They were not. They are not consistent at 
all with the Generally Accepted Accounting Principles. These 
are the accepted accountability procedures for all the 
regulatory agencies and the L2 are not. I am just trying to 
understand what the basis for this was. There are some very, 
very clear requirements that have to be followed. There are 
requirements, for example, unions that have $6 million or less 
in terms of total assets. There is also the Small Business 
Regulatory Flexibility Act. Did you comply with that, do you 
know?
    Mr. Radzely. Yes, Senator, we did. The Department did 
comply with SBRFA in preparing the LM2 regulations.
    Senator Kennedy. Maybe you can distinguish about how the 
compliance with the Regulatory Flexibility Act and the rest of 
the L2 requirements, what is the distinction that you had in 
terms of the compliance figures, the requirements that you had?
    Mr. Radzely. I am sorry, Senator. I am not sure I 
understand the question.
    Senator Kennedy. Well, under the Regulatory Flexibility 
Act, that applies under the Small Business Act for entities 
that are $6 million or less. That has very specific 
requirements. You say that your L2 requirements have taken 
those into consideration. I am asking you how.
    Mr. Radzely. Senator, the Employment Standards 
Administration prepared a detailed regulatory flexibility 
analysis which was part of the Notice of Proposed Rulemaking.
    Senator Kennedy. We don't have them. They are not up here. 
You are the man in charge. You are the man.
    The Chairman. No, he is not. Let me just note for the 
record that this gentleman is in an acting position right now 
and is the Solicitor, not the operational side of the 
Department. But I understand the Senator's desire to get these 
issues on the record. I have no problem with that and I am 
happy for him to continue.
    Senator Kennedy. Well, these have enormous impact on 
working families at a time, an extremely difficult time in 
terms of our economy. When we have the situation where, in 
terms of the accounting, we have very specific lessons that 
have been learned when there was a similar effort made with the 
SEC and the time that they took and the effort they made and 
the surveys they followed and the requirements that they had in 
order to get an accepted program and how they followed the 
Generally Accepted Accounting Principles that are applicable to 
all of the agencies, and then to find out that the Department 
of Labor went off entirely differently, didn't follow those 
Generally Accepted Accounting Principles, didn't follow the 
practice on all of these, and it is difficult to find out what 
the basis for making these judgments and decisions were.
    They said, well, they have complied with the regulatory 
Order 12866, which is very specific on what the burdens are 
going to be and the benefits are going to be, both on the 
employer and the worker. I have asked what they are here today 
and I hear that there is some other agency that has done that 
in this. It makes it very difficult.
    Let me just move to another area, and then I know my time--
I have taken a good deal of time. This is on the citations on 
the ergonomic issues and plans. You mentioned that there were 
nine examples. I could only find six on the website. I could 
only find six. You have got your nine there. This is Alpha 
Health Services, Alpha Health Services, Alpha Health Services, 
Security Metal Products, Super Value, and Brown Printing. Those 
are the six that I found.
    Mr. Radzely. Senator, I believe----
    Senator Kennedy. You have three others?
    Mr. Radzely. Yes. I believe there were three that were 
recently issued, one against two nursing homes in Denver, 
Colorado, Mariner Health Care----
    Senator Kennedy. You have got the times and the dates of 
those?
    Mr. Radzely. I don't recall the time of Mariner Health 
Care. It would have been probably within about the last month, 
I am assuming, and there were two citations for facilities in 
the Denver, Colorado, area. About 2 weeks ago, I think, there 
was a citation issued against Tri-State Coca-Cola, a beverage 
distribution facility in Cincinnati, Ohio.
    Senator Kennedy. Let me mention these. This is an Alpha 
Health Services. This is Alpha Health Services. This is one of 
the nine, February 21. Proposed penalty, $900. Final penalty, 
$270. Alpha Health Services, second one, $900. Final penalty, 
$265. Again, Idaho, Alpha Health Services, $900, again, $265. 
Security Metals Products, Oklahoma, $5,600. Final penalty, 
$2,800.
    I draw the difference between what was done in OSHA under 
the general duty ergonomics citation during Bush I, and I would 
like to include both of these in the record, Mr. Chairman.
    [The information of Senator Kennedy follows:]

    
    
    Senator Kennedy. You had Empire OSHA penalty, an $640,000 
initial penalty. ConAgra Poultry, Missouri, $1 million. Ford 
Motor Company, $1.9 million. The list goes down, hundreds of 
thousands of dollars, and we are talking about nine cases, six 
of which we got online. Three of these were $900 reduced to 
$260. Not a strong record.
    I do that against a background of changing the forms that 
the Department has done on ergonomics, and I would like to put 
these in the record, Mr. Chairman.
    [The information of Senator Kennedy follows:]

    
    
    Senator Kennedy. We had the old OSHA on repeated trauma and 
they had, even under the--that goes back to--I will put in the 
exact date, but it was prior to President Clinton. The Clinton 
administration shortened it, but they also had musculoskeletal 
disorders and they had the listing down there so that they 
would know the numbers of days, the number of incidents. What 
they have is the log of work-related injury and illnesses and 
that was listed, as it had been listed under the old order, 
under the old order. What do you know, the Bush administration 
reissued the Clinton with all but one line, musculoskeletal 
disorders.
    Now, how can we possibly take seriously, as I want to do 
and as I do, Secretary Chao indicating to us that she is going 
to be serious about dealing with the problem in the workplace, 
when we have an enforcement record like we have and when we 
have this kind of--and I didn't submit these to you prior to 
the record. You may be familiar with it. If not, you can take a 
look at it.
    How can we be reassured, and more importantly, how can the 
workers of this country be reassured that you are serious about 
dealing with this when they see this kind of record?
    Mr. Radzely. Senator, regarding the recordkeeping, I 
believe you are referring to a decision made by OSHA, I believe 
in June, regarding whether or not to have a separate column on 
the recordkeeping requirement where there would be a check if 
the employer thought it was an MSD. I would like to make a 
couple comments on that.
    First, the column is not needed for enforcement. Under the 
recordkeeping, employers are still required, as they have been, 
to report all injuries, including MSDs. And when OSHA goes in 
to do an enforcement action, OSHA would not have ever looked at 
a particular column. OSHA looks very specifically at the injury 
and illness logs and makes a very specific determination about 
what the particular MSDs are, and that is what OSHA uses and 
the Solicitor's Office uses in enforcement.
    Moreover, Senator, the data currently kept by BLS allows 
for much more data in the sense that you can sort it by 
industry, you can sort it by specific body type, and the 
checkoff column would not have allowed for that information to 
be gathered or analyzed.
    Senator Kennedy. Well, it is still the only way for the 
public to get information, the aggregation of the data. This 
was the only column that was eliminated. It is the only column 
that was eliminated from this and I find it troublesome.
    On overtime, we have looked at the Federal Register and we 
see nothing that fully describes the impact on various job 
classifications. You do talk about the effect on businesses, 
but not on worker classifications. I mean, what is the effect 
on legal aides, lab workers, airline ticket agents? Isn't this 
your responsibility?
    Mr. Radzely. Senator, again, that analysis would have been 
prepared by the Employment Standards Administration and I don't 
believe there is any requirement that they analyze specific 
industry by industry or State by State under the law, and the 
analysis that they would do is within the Employment Standards 
Administration.
    Also, Senator, I should add that we are currently in the 
rulemaking process----
    Senator Kennedy. I understand that.
    Mr. Radzely. --for analyzing and so it remains to be seen 
what the final rule will look like, because under the APA, as 
you are aware, it has to be based on the rulemaking record.
    Senator Kennedy. I think you are absolutely right, but I am 
trying to find out, when you issued it originally, what the 
basis of it. You have a requirement under the Regulation 12866 
to do the cost to workers, and in looking at the Federal 
Register, I don't see it on the cost to workers.
    I just have one final question in this area, Mr. Chairman--
I have taken a good deal of time--and that is on the 
tuberculosis record. This one was in effect for ten to 11 
years. The Centers for Disease Control, Dr. Gerberding is one 
of the outstanding public health officials in our country, of 
which we have several, and we had them before this committee 
recently and she has just done an extraordinary job.
    But tuberculosis is a killer. I believe it is 15,000. It 
has gone from 17,000 to 15,000 over the last 3 years, but it is 
15,000, and in a number of communities, like the District of 
Columbia, it is going up.
    When you have that requirement about the rule, you have 
important kinds of protections that exist in there and you have 
enforcement and you have information and the workers get that 
information and we have enforcement requirements. The 
Department effectively vitiates that rule and says, we are 
going to use the Centers for Disease Control, which is not 
necessary embraced, not required, accepted in some places, not 
accepted in others, as the principal protector for workers. 
What was your reaction to that?
    Mr. Radzely. Senator, you are, I believe, referring to 
OSHA's decision announced in the regulatory agenda that it is 
going to withdraw the TB rule. I believe the Department has and 
will continue to have a vigorous enforcement in the area of 
tuberculosis. Under Directive 2.106, the Department has very 
specific means of enforcing this. There have been over 150 
citations in tuberculosis over the last, I believe it is--I am 
not sure of the exact time, and 40 General Duty Clause 
citations.
    In addition to that, as part of OSHA's national emphasis 
programming in the nursing industry, TB is one of the main 
things that they are looking for. In addition to that, Senator, 
there are some 80 local emphasis programs that are in place for 
TB.
    Senator Kennedy. Well, from 1999, 17,531, 16,377 for 2000, 
15,989, I mean, it is down a trickle. These are cases, not 
deaths. But in 20 States, they have increased. In 20 of the 50 
States, they have increased, and increased here in the District 
of Columbia. Asthma has increased dramatically. Children dying 
of asthma has increased dramatically.
    When we have these airborne diseases and pathogens, SARS 
out there, monkeypox out there--SARS certainly is--and with all 
of the dangers that we are having out here in terms of these 
airborne pathogens, the threat is still out there. This agency 
is to be protecting workers, protecting workers, both their 
health and their safety as well as their wages. These are just 
indicators that I find distressing.
    We didn't have a chance to go through some of the other 
parts of your record which have, I must say, been positive. I 
have used a good deal of my time, so I thank the chair.
    The Chairman. Thank you, Senator. Senator Murray?
    Senator Murray. Thank you, Mr. Chairman. I appreciate the 
opportunity, Mr. Radzely.
    Let me start with the personal protective clothing rule 
under the Department. For several rules, OSHA has had a rule 
pending that would require employers to pay for OSHA-required 
personal equipment, such as hard hats, safety gloves, 
protective eyewear, those kinds of things. Paying for that kind 
of safety equipment is particularly hard, I think we all know, 
for a lot of our low-income workers in hazardous industries--
construction, poultry plants, garment shops.
    The rulemaking record overwhelmingly supported OSHA's 
determination that a rule was needed to protect workers from 
the risks posed by their employers' failure to pay for 
protective equipment. Workers who are required to purchase and 
pay for their own safety equipment are put in a position of 
making decisions that may compromise their own health and 
safety to avoid personal economic loss. In fact, the agency 
found that issuance of a rule requiring employer payment for 
protective equipment would significantly reduce the risk of 
injuries, preventing over 47,000 injuries and seven fatalities 
every year.
    In your testimony, your written testimony, you point to the 
fact that low-wage and vulnerable workers are the workers who 
most need our assistance. We know they need protection because 
they often work in dangerous jobs and industries. We also know 
that fatalities and injuries have risen 15 percent among 
immigrant and Hispanic workers, while the rate decreased by 15 
percent for other groups of workers.
    So given the overwhelming weight of evidence in support of 
a rule, why haven't you been more assertive in your role as 
Acting Solicitor to move forward with the policy decision and 
rule that has been supported by the record?
    Mr. Radzely. Senator, as you are aware, that is a decision 
that initially is made by the Occupational Safety and Health 
Administration and I have not reviewed the record so I do not 
know what the contents of that record are, whether it would or 
would not support a final rule. I do know that OSHA is studying 
the issue and is working on this----
    Senator Murray. Well, to your knowledge, is there a legal 
impediment to OSHA's proceeding with the final rule?
    Mr. Radzely. Senator, I do not know whether there is or is 
not a legal impediment since I am not aware of the comments 
that have been made under the rule, and under the APA, any 
final rule would have to be responsive to those comments.
    Senator Murray. Well, in the past 3 years, has OSHA cited 
any employer for failing to pay for required safety equipment?
    Mr. Radzely. Senator, I am not aware of any citations. 
There may have been, as you may be aware, under--there are 
specific standards which do require payment of certain PPE, and 
there may have been citations under that, but I am not aware if 
there was a citation for failure to pay for PPE, no.
    Senator Murray. For the record, could you get responses 
back to those questions for me?
    Mr. Radzely. Sure.
    Senator Murray. Let me then follow up. Senator Kennedy 
asked you about ergonomics guidelines, and I think when the 
Secretary of Labor announced her plan following the repeal of 
OSHA's rule, she committed the Department to a comprehensive 
approach. Senator Kennedy focused on some of the reporting and 
forms. I wanted to ask you, I thought there were six, too, but 
apparently you are saying there are nine Duty Clause citations 
by the Department of Labor, is that correct?
    Mr. Radzely. Yes, Senator.
    Senator Murray. And my understanding is that some of the 
highest-risk industries, like meat packing, auto parts, and 
hospitals, haven't been included in any of those citations?
    Mr. Radzely. Senator, there are no citations. OSHA does 
have local emphasis programs in those industries that you 
mentioned, but there are no citations.
    Senator Murray. In any of the high-risk industries. Can you 
tell me how many cases DOL inspected for ergonomic hazards and 
considered issuing a citation?
    Mr. Radzely. I don't--that would be a question you would 
have to direct to OSHA. I am not aware specifically of the 
number of cases. I do know that OSHA has reviewed it as part of 
its nursing home national emphasis program and a number of 
local emphasis programs, but I don't know the number that you 
are asking.
    Senator Murray. Well, we are asking because we have been 
told we are going to have a comprehensive force on this and I 
am just trying to get the scope of it from your perspective as 
Acting Solicitor.
    Can you tell me if the Department is currently conducting 
targeted inspections and tell me which industries are being 
targeted?
    Mr. Radzely. Yes, Senator. In addition to the nursing home 
that I mentioned earlier, the targeted local and regional 
programs are in auto parts, meat packing, hospitals, and 
warehousing.
    Senator Murray. But you don't know if any of those have 
been issued any citations or----
    Mr. Radzely. Senator, the citations that have been issued 
since January of this year, when I became Acting Solicitor, are 
the nine that I mentioned and I don't believe any of the nine 
were in those----
    Senator Murray. Do you know how many have been inspected?
    Mr. Radzely. No. That would be a question that OSHA would 
have the information on.
    Senator Murray. OK. Well, you do cite in your statement the 
final settlement that was negotiated with the Beverly Nursing 
Homes as an accomplishment during your tenure as Acting 
Solicitor. Beverly has finally identified the first 60 
facilities in the process of adopting ergonomics programs. Can 
you tell us why Beverly or the Department of Labor has failed 
to provide a copy of the facilities list to the Service 
Employee International Union, which represents the workers at 
Beverly and was a party to those proceedings and the settlement 
of the case?
    Mr. Radzely. Senator, I have recently been made aware of 
the SEIU's request and have been very supportive of it, and in 
fact, we have notified the company about 7 days ago that unless 
they file a legal action to prevent us from doing it under a 
reverse Freedom of Information Act, that we want to turn that 
over. The SEIU has been a full partner in that nursing home 
case and we have been very supportive of them getting the data.
    Senator Murray. OK. So you are committing to this committee 
that you will provide that information to the union, to the 
SEIU?
    Mr. Radzely. We are, again, just so I am clear, in the 
event that Beverly does not file a reverse FOIA lawsuit, we 
will provide it probably this week or early next week. If they 
do file a reverse FOIA lawsuit, we will have to evaluate their 
claims. But I am committed to trying to get the information to 
them as quickly as possibly because they were a full partner in 
that resolution.
    Senator Murray. General Duty Clause cases are often very 
expensive and time consuming and difficult. You cited the 
Beverly case in your statement. That is a case that took 10 
years before the Solicitor's Office was able to reach any kind 
of settlement. Would you agree that enforcement under the 
General Duty Clause is no substitute for a strong enforceable 
standard?
    Mr. Radzely. Senator, I believe enforcement of the General 
Duty Clause will protect American workers and I believe the 
Department has learned a significant amount in terms of its 
prior experiences on ergonomics----
    Senator Murray. Even though it takes 10 years to reach any 
kind of decision on it?
    Mr. Radzely. Senator, I think any time you are filing new 
cases, it takes longer. Once the case law is developed, it is 
much easier and much quicker to file cases. And I have no 
assurance under any particular standard that it would go 
quicker. There are cases under OSHA standards that take years 
to resolve themselves.
    Senator Murray. Thank you very much, Mr. Chairman.
    The Chairman. Senator Enzi?
    Senator Enzi. Thank you, Mr. Chairman, and I appreciate 
your holding this hearing. I think it is extremely important 
that we get this nominee confirmed. Seldom do we have an 
opportunity to have someone come before us that has actually 
been doing the job. I have heard no fault with the job that he 
is doing. I am pleased with the record he developed in his 
previous position and the job that he is doing now.
    I do have a complete statement that I would like to be made 
part of the record.
    The Chairman. Of course.
    [The prepared statement of Senator Enzi follows:]

                   Prepared Statement of Senator Enzi

    Mr. Chairman, one of our most important duties on this 
Committee is to fulfill our Constitutional duty to provide our 
advice and consent to the President's nominees for those 
positions that fall under our jurisdiction. Today we will be 
reviewing the qualifications of his nominee for the Solicitor 
of Labor, Howard Radzely. This position is of great interest 
and importance to me personally because of my service as 
Chairman of the Subcommittee on Employment, Safety and 
Training.
    The Department of Labor plays a critical role and has a 
great effect on the day to day lives of the American workforce 
as well as the operations of our business community. The 
Solicitor of Labor serves in a key position that ensures the 
Department is functioning effectively, efficiently, and on firm 
legal footing. As I reviewed Mr. Radzely's record, I was 
pleased to note his outstanding background that makes him 
highly qualified to continue to face the rigors of this 
position.
    Mr. Radzely is a magna cum laude graduate of Harvard Law 
School who worked in private practice, concentrating on labor 
and employment law, prior to joining the Department of Labor. 
He has been Acting Solicitor from June 2001 to January 2002, 
and again, since January 2003. During his service at the 
Department of Labor, Mr. Radzely has demonstrated his ability 
to be an effective Solicitor of Labor.
    As our Committee considers this important nomination, we 
have to keep in mind the role of the Solicitor and his 
qualifications relative to the position he has been asked to 
fill. Therefore, we must note what the role of Solicitor is and 
is not.
    The Solicitor of Labor serves two primary functions. First 
of all, the Solicitor is responsible for enforcing the nearly 
200 statutes that fall under the Department's jurisdiction. 
Secondly, the Solicitor provides legal advice to the Secretary 
and agencies within the Department of Labor. The Solicitor 
monitors agency activities and provides legal advice to ensure 
that the Department's agencies and employees comply with 
applicable laws and regulations. The Solicitor advises 
rulemaking agencies about the legal implications of the rules 
they propose. The Solicitor's position is not a policy 
position. The Solicitor does not advise from an ideological 
viewpoint, but from a legal perspective.
    As we consider Mr. Radzely's nomination, we couldn't have a 
better or more complete record. From his previous service we 
know the kind of individual Mr. Radzely is, and we also know 
how well he handles the responsibilities of a very demanding 
job. As Acting Solicitor, he has shown that he is indeed well-
qualified to perform the functions that this position demands.
    Mr. Radzely's has demonstrated his commitment to vigorously 
enforce the laws within the Department's jurisdiction. I 
believe his record speaks for itself on this key point.
    During his service as Acting Solicitor, the Department of 
Labor filed suit against Enron, the Administrative committee, 
Kenneth Lay, Jeffrey Skilling and the outside members of the 
Enron Board of Directors for breach of fiduciary duty under the 
Employee Retirement Income Security Act (ERISA).
    Part of the Department of Labor's comprehensive approach to 
reducing ergonomic injuries in the workplace is an enforcement 
program under the OSH Act's `general duty' clause. Since 
becoming Acting Solicitor earlier this year, the Department has 
issued nine ergonomics citations under the general duty clause 
against companies in a wide variety of industries.
    As I completed my review of the materials on Mr. Radzely's 
nomination and his already impressive track record of service, 
there was only one conclusion that could be drawn about his 
ability to continue to serve in this important capacity. Simply 
put, he has done and will continue to do an excellent job if 
given the chance. He knows the law and he knows the importance 
of enforcing it.
    During today's hearing I look forward to evaluating this 
nominee based on his qualifications and suitability for office, 
not on policies developed outside of the Solicitor's purview. 
Our evaluation of Mr. Radzely's qualifications should not be 
confused with our evaluation of policies on which the Solicitor 
provides legal advice.
    The President has chosen an individual with excellent 
qualifications and sent him to us for our review and 
consideration. His choice of Howard Radzely is a good one, and 
I strongly support his nomination and confirmation by the full 
Senate.
    Senator Enzi. I am impressed with your qualifications and 
suitability for the job. I do realize that your job is not the 
head of OSHA. Your job is not the head of the Department of 
Labor. I realize that, or I am pretty sure that you are not the 
one who is supposed to develop the policies or come up with 
initiating new regulations. Am I correct on that?
    Mr. Radzely. Yes, Senator.
    Senator Enzi. Can you tell me what role you do play in the 
rulemaking process?
    Mr. Radzely. Yes, Senator. The Solicitor's Office's role in 
the rulemaking process is to ensure that all applicable rules, 
regulations, executive orders are complied with in the Notice 
of Proposed Rulemaking stage and that in any final rule, those 
statutes are complied with and the comments are carefully 
considered in developing a final rule.
    Senator Enzi. Thank you. I appreciate some of the comments 
that the Senator from Massachusetts had earlier. It 
particularly caught my attention when he mentioned the 
Department of Labor and Generally Accepted Accounting 
Principles. I have been a little disappointed in all Federal 
agencies in their Generally Accepted Accounting Principles and 
with the audits that have been done in agencies and 
departments. I think we have a lot of room for improvement 
there.
    We have subjected the corporations of this country to some 
real scrutiny, but we have kind of passed over our own, and by 
our own, I mean even the accounting that deals with the budgets 
for our offices. I tried doing some things when I first got 
here with that and found that that is kind of difficult.
    I appreciate your putting the forms into the record. Since 
I have been here, I have mentioned that I wished that there was 
a lot more done with the forms. I have tried to get some 
compiled numbers. We require the businesses to make some 
compilations, but when it gets to the Federal level, there is 
not much done with them after that. I think that it would be a 
tremendous help when you are doing auditing and accounting, you 
try and find the worst first and I think there is some 
potential there for doing that and pursuing it. But in the 7 
years I have been here through two administrations, I think 
there could be some room for improvement in that, drastic 
improvement.
    I am glad you brought up uniformity of fines. I know that 
has been a tremendous difficulty. I have asked that there be 
some published fines so that we would have some uniformity 
across the Nation. Different States, especially State plan 
States, have different methods of evaluating it, and then, of 
course, in the non-State plan States, there is just a 
tremendous range also. I think there ought to be a little bit 
more uniformity in that and I think it would help in the 
enforcement. It would also help the companies, because they 
would have a little better idea of really what they are dealing 
with. Sometimes it would be easier to understand the penalties 
than it would be the rules, and then we could work backwards 
from there.
    When you mentioned TB tests, what it brought to mind was 
when I was in grade school, we used to get TB tests. They used 
to come in and put some little pin pricks on the back of our 
hand and then the next week when we went to school, they would 
have some nurse there that would evaluate whether the lump had 
grown or receded. I do recall that we don't do that anymore. I 
suspect that it is because there is less TB. So sometimes if we 
change it in the schools, we probably change it in the 
workforce, as well, not that it isn't an important thing to 
watch out for, but that there are changes.
    Of course, the comments by the Senator from Washington 
about protective gear, I used to work with some of those safety 
issues and the difficulty wasn't as much in getting the safety 
gear for the employees as it was getting the employees to wear 
the safety gear when they had it. Of course, when an employee 
doesn't wear the safety gear, it isn't the employee that gets 
fined, it is the employer that gets fined, and if the employee 
doesn't wear it twice and they are inspected, then the employer 
is the bad actor.
    So there need to be some things done on a responsibility 
area there, too, that I hope is built in at the same time that 
we work on who provides the equipment. I never ran into a 
problem with anybody understanding who was buying what, but I 
am glad that there is some work being done on clarifying that.
    Again, I thank you for being here today to testify. It was 
delightful to look at your record and I look forward to your 
speedy confirmation.
    Thank you, Mr. Chairman.
    The Chairman. Senator Harkin?
    Senator Harkin. Thank you very much, Mr. Chairman.
    Mr. Radzely, I apologize for being a little late. I did 
look over your statement earlier, however. I just wanted to 
cover a couple of areas with you, one being the issue of 
overtime.
    Again, before I do that, I again want to stress that the 
Solicitor is not only the Department's lawyer but the workers' 
lawyer, and you don't disagree with that. You are the 
Department's lawyer, but you are the workers' lawyer, also.
    Mr. Radzely. Senator, yes. The Solicitor's Office brings 
cases on behalf of workers.
    Senator Harkin. Exactly. On workplace safety and health, 
workers depend on the Department of Labor because the laws do 
not provide workers with a private right of action to enforce 
their statutory rights. The Solicitor acts as the top legal 
advisor to the Secretary on virtually every policy, 
legislative, regulatory, and enforcement initiative of the 
Department or its agencies.
    So again, I have some concerns about the role the 
Solicitor's Office has played--not you, since you haven't been 
there--but has played, specifically on the law that protects a 
40-hour work week and overtime pay.
    In March, DOL proposed a new rule that would essentially 
take away the overtime pay protection from millions of working 
Americans who currently have it. DOL officials said they simply 
wanted to simplify and update the rules that were part of the 
FLSA in 1938, but it appears they didn't just simplify the 
rules, they made them more vague than ever, allowing employers 
to easily reclassify workers to disqualify them from overtime 
pay protection and require them to work longer hours with pay.
    Again, I don't understand how the Solicitor, who is 
supposed to be the workers' lawyer, would allow such an extreme 
proposal to go forward. Again, I am also concerned with the 
dropping enforcement and compliance of civil rights laws on 
Federal contractors, and I want to talk about that also.
    But again, on the issue of overtime, wasn't it the intent 
of Congress and the President in 1938 to establish a 40-hour 
work week with few narrow exceptions under the Fair Labor 
Standards Act? That is my question. Wasn't that the intent? And 
isn't it your job as an advocate for the workers to insist that 
any exceptions to the 40-hour work week be narrowly limited as 
Congress intended?
    Mr. Radzely. Senator, Congress in enacting the Fair Labor 
Standards Act gave the Secretary of Labor authority to define 
these three particular exemptions, administrative, executive, 
and professional. I believe that as such, terms are defined and 
delimited from time to time by regulations of the Secretary of 
Labor. It is the Office of the Solicitor's job to ensure that 
any regulations, both the Notice of Proposed Rulemaking and any 
final rule, are consistent both with the Fair Labor Standards 
Act and, in particular, the phrase I just read, as well as the 
Administrative Procedures Act and some of the other Executive 
Orders and statutes that Senator Kennedy mentioned earlier.
    Senator Harkin. Let me see if I understand what you just 
said. You said you are to make sure that what they are doing is 
consistent with the exemptions of administrative, executive, 
and professional.
    Mr. Radzely. I apologize if I gave a confusing answer, 
Senator. No, the job of the Solicitor's Office is to make sure 
that any proposed regulation is consistent with the language, 
quote, ``as such terms are defined and delimited from time to 
time by regulations of the Secretary of Labor.'' In that, 
Congress essentially delegated to the Secretary of Labor 
decisions as to how those three particular exemptions should be 
defined.
    Senator Harkin. But again, I go back to what I initially 
asked. Was it not the intent of Congress at that time to 
narrowly limit--I mean, it wasn't a broad exemption, it was to 
narrow them down at that time, and that is the way it has--has 
that not been the way it has been implemented since 1938? A 
narrow exception is put in there by Congress.
    Mr. Radzely. Senator, the exception--the words of the 
language give the Secretary of Labor the authority to define 
those terms.
    Senator Harkin. In your written responses, you said you 
reviewed the proposed regulations for compliance with the Fair 
Labor Standards Act, is that correct?
    Mr. Radzely. Yes, Senator. That is correct.
    Senator Harkin. In your written responses, you also say 
that the Secretary of Labor has authority to define the terms 
executive, administrative, and professional employees, what you 
just said here. Are you suggesting that the Secretary has 
unlimited authority to define those terms?
    Mr. Radzely. Senator, I am not suggesting that the 
Secretary of Labor has unlimited authority, but what I did 
indicate in my written responses was that the Solicitor's 
Office did review the proposed----
    Senator Harkin. Mr. Radzely, if the Secretary does not have 
unlimited authority to define what is executive, 
administrative, or professional, what are the limits?
    Mr. Radzely. Senator, again, I would have to react to a 
specific proposal. The Solicitor's Office did review the 
proposed regulation and determined that it was consistent both 
with the Fair Labor Standards Act and other applicable laws, 
Executive Orders, and other regulations.
    Senator Harkin. Well, again, I have got to figure out, what 
are the limitations? If it is not unlimited, you are saying the 
limitations are what you define them to be at any point in 
time, is that right?
    Mr. Radzely. No, Senator. Again, we would have to take a 
look at a specific proposal and----
    Senator Harkin. Well, we have a specific proposal.
    Mr. Radzely. And the Solicitor's Office did look at that 
specific proposal and determined that the proposal was 
consistent with the Fair Labor Standards Act. And again, we are 
in the comment period now. We have received, I believe it is 
some 78,000 comments----
    Senator Harkin. A lot of comments.
    Mr. Radzely. --and the Employment Standards Administration 
will be reviewing that and the Solicitor's Office will review 
any decisions that they make for consistency with all 
applicable rules and regulations, most particularly the 
Administrative Procedure Act.
    Senator Harkin. I know this is not within your purview, but 
this is just my comment, the fact that I find it very strange, 
indeed, that a rule that affects so many people in this 
country--a proposed rule that affects so many people in this 
country, not one hearing was held on it. Not one public hearing 
was held by the DOL anywhere in the United States on this. I 
find that just astounding. I mean, I can see some rules that 
don't affect a lot of people that are minor in nature, you 
don't have to have public hearings. But something like this, I 
find almost to the point of being bizarre that not one hearing 
was held.
    But let me get back to the limitations, Mr. Radzely. Isn't 
one limitation on this authority, one limitation on the 
authority of the Secretary to define this, isn't one limitation 
the fact that Congress clearly did not intend for the FLSA's 
40-hour work week to be limited only to low-income workers? Do 
you agree that it would be inconsistent with the FLSA, for 
example, for the Secretary to issue regulations that have the 
effect of bringing every worker earning more than $22,100 
within the exceptions to the 40-hour work week? Do you want me 
to repeat that?
    Mr. Radzely. Yes, would you.
    Senator Harkin. Do you agree that it would be inconsistent 
with the FLSA for the Secretary to issue a regulation saying 
that every worker in America who earns over $22,100 a year is 
in the exception to the 40-hour work week?
    Mr. Radzely. And thus would not be entitled to overtime?
    Senator Harkin. Yes.
    Mr. Radzely. You are saying every worker earning over 
$22,100?
    Senator Harkin. Yes.
    Mr. Radzely. Senator----
    Senator Harkin. Would that exceed her authority or his 
authority?
    Mr. Radzely. I would want to think about it more, but yes, 
I believe it likely would. If it were just anyone over $22,100, 
that probably would exceed the Secretary's authority.
    Senator Harkin. So that would be a limitation. Isn't 
another limitation the fact that Congress clearly did not 
intend for these exceptions to be based solely on income? 
Again, do you agree that it would be inconsistent with the 
FLSA, for example, for the Secretary to issue regulations that 
disqualify from overtime protection every worker earning more 
than, say, $65,000, regardless of the worker's job duties?
    Mr. Radzely. Again, Senator, I would want to specifically 
study any particular proposal, but my initial reaction is if 
the only requirement were making $22,100 or whatever the dollar 
figure was, that likely would be inconsistent with----
    Senator Harkin. So someone earning more than $65,000 a year 
is not just automatically disqualified from overtime? It 
depends, again, upon what their job is?
    Mr. Radzely. Yes, Senator, I think that likely is right. 
Again, I would want to look at----
    Senator Harkin. So that would be a limitation. OK. I have 
just one more. Isn't another limitation the fact that Congress 
intended for these exceptions to apply only to a narrowly-
limited class of individuals? Again, do you agree, Mr. Radzely, 
that it would be inconsistent with the FLSA, for example, for 
the Secretary to issue regulations that disqualify from Federal 
overtime protection 90 percent of workers earning more than 
$22,100 a year? Again, do you agree it would be inconsistent 
for the Secretary to issue regulations that would automatically 
disqualify from overtime protection 90 percent of workers 
earning more than $22,100 a year?
    Mr. Radzely. I am sorry, Senator. I am not sure I 
understand how you get to the 90 percent of workers over 
$22,100----
    Senator Harkin. Well, what I am saying, Congress intended 
for exceptions to apply to a narrowly-limited class. I am 
asking you, do you agree that it would be inconsistent with 
FLSA if the Secretary were, for example, to issue regulations 
that would just disqualify 90 percent of people earning more 
than $22,100 a year?
    Mr. Radzely. Again, Senator, I am not sure I understand 
your question. I believe, and again, I would want to study it 
more, but I think that a pure salary test, accepting the 
hypothetical of your earlier questions, $22,100 or whatever it 
is, would likely be inconsistent with the authority in the Fair 
Labor Standards Act. But I am not sure I understand----
    Senator Kennedy. Would the Senator yield?
    Senator Harkin. Yes.
    Senator Kennedy. He is talking about the duties 
requirement. You can emasculate the overtime provisions by 
altering and changing the duties requirement. You have two 
different items. One, you have the level of the wages, and two, 
you have the duties requirement, and if you redefine those 
duties requirements, you can redefine overtime right out of the 
Act. That is what I think is beginning to happen. I mean, we 
have a difference on that, but at least that is what I thought 
that the Senator was trying to ask.
    You say that you have the authority to issue the 
regulations. You have the power to do it. You have compliance 
requirements, which I don't think have been myself lived up to, 
which we have been over earlier and I won't go over now. But if 
you keep redefining the duties requirement, you can effectively 
emasculate the whole overtime issue.
    I apologize----
    Senator Harkin. No, the Senator correctly sort of 
embellished what I was saying, and he is right. If the 
Secretary issued a rule that redefined these duties to the 
point where 90 percent of the workers making more than $22,100 
a year were barred from overtime, do you feel that would be 
inconsistent with the FLSA?
    Mr. Radzely. Senator, again, accepting the premise of your 
hypothetical, I would need to look at how that rule was 
defined. The Fair Labor Standards Act isn't in terms of 
percentages. It talks about as the terms executive, 
administrative, and professional are defined and delimited from 
time to time, so I would need to know how the proposal 
attempted to define those----
    Senator Harkin. But if we looked at the effect of it, I 
think that is what we were saying. If we looked at the effect 
of it and the effect was to exclude 90 percent or 80 percent or 
70 percent or whatever automatically, again, it is my feeling 
that it would be inconsistent with the FLSA. The rule sort of 
swallows up or does away with the FLSA by changing the rule, as 
Senator Kennedy said, and I just wanted to get your thoughts on 
that.
    Again, I think you see where I am coming from. I just think 
that the proposed rules that came out and the reason they got 
so many comments on it is an overreaching. It is something that 
Congress never clearly intended. We limited the power of the 
Secretary. And by changing this, it just basically makes her 
power, or his power, whoever the Secretary is, unlimited in 
this area. And yet, you say, and my question to you did say 
that there were limitations. It is not an unlimited power. But 
if the Secretary redefines the duties so that it exempts 90 
percent of the workers, that is almost an unlimited power.
    The Chairman. I think he responded to your point and I 
think you made the point.
    Senator Harkin. I appreciate it. Thanks, Mr. Chairman.
    The Chairman. And I think you have got a hearing to make 
your point again on Thursday.
    Senator Clinton?
    Senator Clinton. Mr. Chairman, I think, Mr. Radzely, that 
you understand our concerns, because clearly, we are a nation 
that believes in the rule of law. It is very difficult to 
follow the logic behind this rule change, which seems to be a 
grab for power by the Secretary, albeit on behalf of the 
administration, with respect to issues that have not been 
legislatively addressed.
    The Fair Labor Standards specific language seems to run 
absolutely counter to what the implications and effects of this 
rule change would be in the real world, and that is very 
troubling, because if you look at the people who do work 
overtime in our country, police officers and firefighters and 
health technicians and EMTs and paralegals and all kinds of 
people, millions and millions of people, for people who do work 
overtime, their overtime pay constitutes 25 percent of their 
wages.
    I don't think anyone in this Congress believes we should in 
any way diminish the income by 25 percent of literally millions 
of people on the basis of a rule change. That is not the 
appropriate province of the Secretary, and as the nominee for 
Solicitor, we view your responsibility in this matter to be 
paramount. I mean, you are the Secretary's lawyer, in effect, 
as well as the defender and enforcer of workers' rights.
    We are talking about eight million people being affected by 
this rule, and I know that the Department has put out other 
figures, but any independent analysis about who will be 
affected with, in effect, these changes is as high as eight 
million people, and I don't think any of us want to face our 
firefighters and our police officers, to say nothing of 
reporters, who are going to have 25 percent of their income at 
risk.
    So this is an incredibly serious matter, and as the 
questioning from both Senators Kennedy and Harkin suggested, it 
is very difficult to understand where the Secretary is getting 
the authority to do this, to, in effect, through rule changes, 
redefine executive, administrative, professional, the duty 
test, the salary limits. It is just not in there.
    So we will look for cooler heads to prevail on this matter, 
although I suppose if you want the administration and the 
President to stand for reelection with eight million folks, 
including a lot of police officers and firefighters, being told 
their income has been cut by 25 percent, I suppose that is a 
choice you can make. I would not advise it.
    I have a very specific question, and that is concerning the 
New York City Employment and Training Administration Office, 
which oversees job training programs for approximately 200,000 
people annually at one-stop job centers and manages as many as 
400,000 unemployment insurance claims per week. The Department 
of Labor has decided to subsume this office into the Boston 
office, and with all due respect to my colleague, the ranking 
member, I am not at all convinced that this will be the best 
decision on behalf of the people and the workforce in New York.
    It seems inefficient and inexcusable to relocate the ETA 
office that serves New York City more than 200 miles away. 
There are a lot of people who are dependent on public 
transportation in that city. There are people who cannot 
possibly afford to get on an airplane, a train, or a bus to go 
to Boston to deal with their unemployment claims.
    I have written to Secretary Chao twice to ask her to 
reconsider this ill-conceived idea. She has responded that the 
move will not affect service but instead will make the offices 
more effective, but she does not cite any analysis to really 
back up this point.
    Now, I realize you may not have been directly involved in 
this decision, but I would appreciate it if you would explain 
to me in writing, in response to this question, how this move 
could possibly make the office more effective for the people of 
New York City, the hundreds of thousands of them who are under 
the supervision or at least required to deal with this 
Department, and I would like to know why the Department thinks 
it is an appropriate move, given that New York City has been in 
recession since September 11, has an employment rate of 8.1 
percent citywide, higher than that in several of our boroughs, 
and directly and direly needs the employment and training 
services provided by the ETA. So I would appreciate that 
response in writing, Mr. Radzely.
    And on another issue, with respect to the LM2 regulations, 
you have said that lawyers in the Solicitor's Office have been 
working with the Office of Labor Management Standards on the 
LM2 rules to ensure that any decisions regarding the final rule 
consider all the comments in the record, that they are 
supported by the record, consistent with the Labor Management 
Reporting and Disclosure Act, the Administrative Procedures 
Act, and all other applicable statutes, regulations, executive 
orders, and case law.
    I assume the Regulatory Flexibility Act, which looks at the 
impact of rules on small entities, and Executive Order 12866, 
which requires agencies to describe the costs and benefits of 
proposed rules for rules with an economic impact of $100 
million or more, the Executive Order requires a formal economic 
analysis, are two of those laws. So I would look to you to 
assure that the Regulatory Flexibility Act and Executive Order 
12866 are part of your analysis.
    Let me ask you, why hasn't the final rule been issued? Any 
insight you could give us on that?
    Mr. Radzely. Yes, Senator. The Department is currently 
reviewing the some 36,000 comments that it received on the 
rulemaking and is carefully analyzing them. The Office of Labor 
Management Standards and the Employment Standards 
Administration are working on that, and I don't have a 
timetable for when they are going to complete that.
    Senator Clinton. Do you know if the proposed rule has been 
reviewed for its conformance with the Regulatory Flexibility 
Act or the Executive Order I referred to?
    Mr. Radzely. Yes. Attorneys in the Solicitor's Office did 
review that analysis prepared by the ESA for compliance with 
those acts and the Executive Order.
    Senator Clinton. And will you provide that analysis to this 
committee so that we could also review it?
    Mr. Radzely. Senator, I believe in response to a written 
question from the committee, I did provide the analysis that 
the Solicitor's Office reviewed from the Employment Standards 
Administration.
    Senator Clinton. But in our review of that, there were no 
specific studies or estimates on the economic impact of the 
rule on small entities, so perhaps there is some additional 
information that has been developed that could be provided.
    Mr. Radzely. Senator, there undoubtedly will be additional 
information prepared with the final rule because there were a 
significant number of comments, obviously, on some of the 
analyses that you mentioned.
    Senator Clinton. We have no evidence in your testimony or 
in any other submission from the Department that there was an 
economic analysis conducted in conformance with Executive Order 
12866.
    Mr. Radzely. Senator, I believe the determination by the 
Employment Standards Administration was that it would not have 
an effect of more than $100 million, and therefore----
    Senator Clinton. But there are two different standards, Mr. 
Radzely. There is a small firm or entity impact standard and 
then there is a larger standard.
    Mr. Radzely. Yes, Senator. I believe the larger standard 
you are referring to would be the Regulatory Flexibility Act 
and the Regulatory Flexibility Analysis, which the Department, 
and the Employment Standards Administration in particular, did 
prepare. I believe there were specific costs and estimates in 
those and we did receive comments on whether those estimates 
were consistent with what the experience of the commenters.
    Senator Clinton. Well, if I could, I would like to submit 
in writing our assessment and analysis of what we have received 
from you and on behalf of the Department raising some 
additional questions, because that is not my perspective on 
what has been done. So we will submit that to you and expect to 
have answers with respect to our questions.
    [The information was not received by press time.]
    Senator Clinton. Thank you.
    The Chairman. Senator Reed?
    Senator Reed. Thank you very much, Mr. Chairman. Welcome, 
Mr. Radzely.
    I just want to go back to some of the regulatory analysis 
that is underlying the overtime rule that Senator Clinton, and 
I think others have talked about also. First, is it your view 
that, generally, people who work overtime should receive 
additional compensation and that exceptions to that general 
rule should be narrowly construed?
    Mr. Radzely. Senator, the Secretary of Labor, as defined in 
the Fair Labor Standards Act, has the authority and 
responsibility to delimit from time to time the terms 
administrative, executive, and professional.
    Senator Reed. Thank you, but that doesn't respond to the 
question. Do you think the presumption is that most people 
should be granted overtime if they work over 40 hours a week 
and that there are certain limited exceptions, so those 
exceptions have to be narrowly construed? It is this issue of 
construction, not what her authority is.
    Mr. Radzely. Senator, again, it is the Congress 
specifically stated that the Secretary of Labor needs to define 
and delimit executive, professional, and administrative, and 
those positions are exempt from the overtime requirements.
    Senator Reed. So the Secretary can say, anyone who makes 
over $50,000 a year basically must be an executive, since I 
would suspect that is high above the average wage in America.
    Mr. Radzely. Senator, again, I think that there would need 
to be--a pure salary test likely would not be consistent with 
the Secretary's statutory authority because that is limited to 
defining administrative, executive, and professional employees.
    Senator Reed. So someone who supervises one other person 
can be an executive?
    Mr. Radzely. Senator, I believe under the Department's 
proposal, which didn't change this requirement, it is one of 
the tests for executive is supervise two or more individuals.
    Senator Reed. So you could be making $35,000 a year, 
supervising two people, a wage earner, and be denied overtime.
    Mr. Radzely. Senator, there are other requirements in both 
the current rule and the proposed rule.
    Senator Reed. OK. Very good. That just goes back to the 
question I asked initially. How broad is the ability of the 
Secretary to include people as executives or exclude them, 
which goes to the basic sort of premise, is this a narrowly 
construed exception that deals with very special cases where 
someone has all of these characteristics, relatively high 
salary, significant responsibilities, or is this something that 
is so amorphous the Secretary can sort of at whim say, well, 
that is an executive, that is an administrator----
    Mr. Radzely. Again, Senator, any decisions made by the 
Secretary are reviewed--would be potentially reviewable in 
court----
    Senator Reed. That is obvious, but what is the answer to 
the question? What is your view about whether this is an 
exception that should be narrowly construed or whether it is 
one that should be broadly construed, because that is at the 
heart of what the Secretary is doing.
    Mr. Radzely. Senator, I believe that Congress, in drafting 
the statute and this particular exemption, gave the Secretary 
the authority to define those terms.
    Senator Reed. Broadly.
    Mr. Radzely. Those terms were not defined. Senator, I 
believe legally, the Secretary could define it broadly, again, 
accepting the hypothetical. Obviously, the Department believes 
there are substantial benefits to its proposal by employees.
    Senator Reed. Well, I would think the Department might find 
that for thousands and thousands of wage earners, they would 
find that to be very unattractive. Senator Clinton mentioned 
firefighters and police officers, many of whom supervise 
several people. Many of them have reasonably good compensation 
levels but see themselves as protected by this law. In my view, 
you keep referring to what Congress says, in my view, this 
should be a narrowly construed exception generally providing 
that people who work for wages and who work overtime, past 40 
hours a week, should get overtime pay, and obviously, you don't 
think the Secretary has that view.
    Mr. Radzely. Senator, I think as the Secretary has 
indicated and the Department has indicated, the Secretary 
believes that the proposal has substantial benefits for 
employees. And again, I should caution----
    Senator Reed. For the employees who lose their overtime?
    Mr. Radzely. Senator, the Department did an analysis and it 
determined that 1.3 million low-wage workers would be 
guaranteed overtime under this proposal.
    Senator Reed. All right. According to your analysis, as I 
read it, there are 645,000 paid hourly workers working overtime 
in occupations with exempt administrative and professional 
duties that could be converted to salaried employees. Is that 
correct?
    Mr. Radzely. I believe that is part of the Department's 
analysis, yes, Senator.
    Senator Reed. Right. But it just strikes me in terms of 
just the analytical approach here is that those are the people, 
as I read this, that are currently receiving overtime. Isn't 
there a logical category of people that are entitled to 
overtime that don't receive it, and why shouldn't that number, 
rather than the 644,000, be the figure that you use to do your 
analysis?
    Mr. Radzely. Senator, I am not sure I understand 
specifically what all of these numbers mean. Again, that 
analysis would have been prepared by the Employment Standards 
Administration.
    Senator Reed. OK. As I understand, also, in terms of the 
analysis, Deputy Assistant Secretary for ESA Mark Wilson and 
Fred Reuter, the chief analyst for CONSAD, which is the DOL 
contractor that prepared the regulatory analysis of the 
proposed rule, claim that the Solicitor of Labor prevented them 
from answering questions about the rule's regulatory impact, 
talking about numbers. Can you tell us why you or your staff 
prevented the agency and CONSAD from answering factual 
questions such as which occupations are included in the 
estimate of professional employees who would lose overtime 
protection?
    Mr. Radzely. I am sorry, Senator. I am not sure I 
understood your question. Can you repeat it?
    Senator Reed. Certainly. Deputy Assistant Secretary for ESA 
Mark Wilson and Fred Reuter, chief analyst for CONSAD, the DOL 
contractor that prepared the regulatory analysis of the 
proposed rule, claim that the Secretary of Labor--Solicitor of 
Labor, excuse me, prevented them from answering questions about 
the rule's regulatory impact. Can you tell us why you or your 
staff prevented the agency and CONSAD from answering factual 
questions such as, quote, ``Which occupations were included in 
the estimate of professional employees who would lose overtime 
protection?''
    Mr. Radzely. I am sorry, Senator. I am just not aware of 
what they are referring to. That was--I don't believe that was 
any advice that I personally gave.
    Senator Reed. Well, can you make yourself aware of what 
they are talking about and inform the committee of why you 
would, at least under their view, interfere with the simple 
fact gathering?
    Mr. Radzely. I would be happy to, Senator.
    Senator Reed. Thank you.
    The Chairman. Thank you. Senator Kennedy has a couple of 
follow-up questions and then we will finish the hearing up.
    Senator Kennedy. Just in response to the question of 
Senator Clinton, you said that the effect would be less than 
$100 million, so a full economic analysis is not necessary. But 
your submissions to OMB indicate that this is an economically 
significant rule. I have got it right here, economically 
significant rule.
    Mr. Radzely. Senator, are you referring to the LM2?
    Senator Kennedy. Yes. This is on the L2.
    Mr. Radzely. Well, Senator, I may have misspoken. Again, I 
didn't prepare that analysis. My recollection was that it was a 
significant rule, which there are two--my understanding is 
there are two criteria under which under 12866 there would be 
OMB review. One is an economically significant rule, which I 
believe is $100 million or more standard, and another is just 
if it is a significant rule under certain standards.
    My understanding was, and I could be mistaken, was that it 
was the latter of those two categories, not the $100 million, 
but if you have that document, then I must have been mistaken 
and----
    Senator Kennedy. Well, this gets to what we are talking 
about, and that is whether the Department did fully comply with 
the Executive Order.
    The Chairman. Is that $100 million?
    Senator Kennedy. This says economically significant, and he 
is defining that as--he is saying it is $100 million. All the 
other analysis indicates it is much more than $100 million, but 
on his application, he recognizes that it is economically 
significant on this, and if it is economically significant, 
then there has to be a full analysis, which they had not 
provided.
    Mr. Radzely. Again, Senator, as I think I indicated 
earlier, I had limited involvement in the preparation of the 
rule, but the rule was reviewed by the Solicitor's Office and 
whatever the Employment Standards Administration did was 
consistent with SBRFA and--was consistent with SBRFA.
    Senator Kennedy. Well, just to come back to points that 
have been asked here about the power, the authority, this has 
been really the most distressing part of your testimony, quite 
frankly. We went through some of these related areas, but I 
have a lot of difficulty certainly supporting you if you think 
that power is unlimited in terms of the Department of Labor to 
define what are these areas of overtime.
    Historically, it has been about 80 percent of the workers. 
It has been 80 percent of the workers. That has been since the 
Fair Labor Standards Act. I am not going to support a Solicitor 
or anybody else that thinks that you have an opportunity to go 
far beyond that in terms of their definition. Your testimony is 
that whatever the Secretary decides is executive or 
professional or administrative, anything, school is wide open. 
I don't hear you saying anything that there has been a long-
time historical balance, and it has basically been about 80 
percent. I think you are changing that significantly with these 
other rules and regulations.
    That has been the figure. It has been now for whatever 
number of years it has been in there, 70 years. And you are 
telling this committee you think, well, wait a minute, it might 
have been 80 percent for 70 or 80 years, but my understanding 
as the principal advisor for the Secretary is that it is open-
ended.
    Mr. Radzely. Senator, I apologize if I left any 
misimpression, but I believe in response to Senator Harkin's 
questions I said that it was not open-ended, and clearly, I 
think I said that, likely, the salary, just a salary, $22,100, 
would not be consistent with the Act.
    Also, again, I would need to look at a specific proposal 
and the Department's Notice of Proposed Rulemaking, based on 
the analysis the Department did, and I understand there is a 
disagreement between you and the Department over that analysis. 
But the Department believed that 1.3 million workers would be 
guaranteed overtime who didn't have it and something on the 
order of, I believe it was Senator Clinton said 645,000 could 
potentially lose it. Thus, the Department believes under its 
proposal more workers will actually gain overtime, so----
    Senator Clinton. Mr. Chairman, since I have been referred 
to, could I ask you to yield for just a second, Senator?
    Senator Kennedy. Yes.
    Senator Clinton. I want to be really clear about this, 
because it was actually Senator Reed who specified it. This is 
where I think the Department's actions just don't inspire 
confidence. You are, I understand, in a tough spot, because you 
are not the person promulgating these rules, but you are the 
person who we look to to make sure that what is done in that 
Department is done legally.
    The 644,000 number, if you take your analysis at face 
value, refers to people who are currently receiving overtime. 
That does not count the millions of people who are eligible if 
they are asked to and have to work overtime. The difference is 
that some people on a regular basis work overtime who fall in 
that 645,000 number, but there are up to eight million people 
who have historically been eligible for overtime who, by the 
rule's wording, would no longer be eligible for overtime.
    So it is just not a fair statement to say that this rule is 
going to give more people overtime. That is not a fair 
statement. You are going to be taking away a right that, as 
Senator Kennedy has said, has been accepted as precedent for 70 
years and you are going to say that even if you never got a 
chance to work overtime or never were asked to work overtime, 
if at any time in the future you are, you are no longer 
eligible.
    So that is a very significant difference, and I think it is 
quite disingenuous for the Department or for you on behalf of 
the Department to say that, well, we think because we are going 
to add low-wage workers, we have a net increase. You have a net 
decrease of the people eligible for overtime. That is our 
point.
    The Chairman. I think the Senator has made that point. I 
think all the Senators on that side have made that point ad 
nauseam.
    Senator Kennedy. Mr. Chairman----
    The Chairman. We are not going to just continue to debate 
for the sake of debate. I yield to Senator Kennedy for a couple 
of additional questions. He can ask those questions and then we 
are going to wrap the hearing up. I didn't have any time limit 
on questioning. People have had lots of time to ask questions.
    Senator Kennedy. I think we are really getting----
    The Chairman. We are replowing the ground rather 
extensively here.
    Senator Kennedy. I just wanted to cover the civil rights 
area in one area, if we can and then we will wind it up.
    Senator Harkin. Mr. Chairman----
    Senator Kennedy. We give you assurance that in 10 minutes, 
that we will be----
    The Chairman. We will give Senator Harkin one last 
question, but first, Senator Kennedy, complete your 
questioning.
    Senator Kennedy. Is it on this point?
    Senator Harkin. It is on--just one clarification.
    Senator Kennedy. And then I will just do the civil rights.
    Senator Harkin. It is a very simple question. It is my 
understanding that, periodically from 1938 to now, that the 
income level has been raised but the duties test has always 
remained the same. Is this the first time that there has been 
an expansion of the duties test?
    Mr. Radzely. Senator, I don't believe that the duties test 
has been revised in probably 50 years. I am not sure it is the 
first time. There may have been some revisions in 1938. But I 
think that is probably correct.
    Senator Harkin. OK. That is the only question I had. Thank 
you.
    Senator Kennedy. Just in the area of civil rights 
enforcement, why has the Department's civil rights enforcement 
declined under your watch and how do you plan to improve the 
enforcement of affirmative action nondiscrimination 
requirements for Federal contractors? As I understand, your 
office has filed only six administrative complaints against 
Federal contractors for violating civil rights. It is down 
between 50 and 80 percent from complaints filed during the 
previous administration. Your reaction?
    Mr. Radzely. Yes, Senator. I am very committed to civil 
rights enforcement. As I indicated in my opening statement, the 
first two systemic compensation discrimination cases filed in 
nearly a quarter century were filed while I was Acting 
Solicitor. In addition to that, Senator, recoveries by OFCPP 
and the Solicitor's Office this year are up 40 percent based on 
where we were this time last year.
    In addition to that, I understand that this calendar year, 
we filed six cases against six different companies, which is--
we are on pace to equal or exceed a number of years during the 
prior administration. For example, in 2000, I believe, the 
OFCPP filed cases against four companies. In one of the four, I 
think there were multiple cases against.
    In addition to that, Senator, something that I have 
personally insisted upon since becoming Acting Solicitor is 
that when there have been violations of conciliation agreements 
entered into by OFCPP, I have insisted that there be 
substantial penalties paid by the companies in resolving any 
violations of conciliation agreements with consent decrees up 
to and including debarment of the contractor.
    Senator Kennedy. Just in this one last area, the target of 
the administration has been the delay of the Equal Opportunity 
Survey, as I understand it, a data collection instrument that 
requires contractors to provide data on the demographic 
composition of the workforce, including data on compensation 
practices broken down by sex and race. Such information is 
obviously critical to uncovering illegal pay disparity and 
remedying wage discrimination.
    The survey was finalized after a lengthy and comprehensive 
review process. It represents a balanced approach to further 
the purpose of the OFCPP without unfairly burdening the 
employers. I believe that any change in the survey would 
undermine enforcement efforts. It would be highly premature, 
given that the survey has not been fully implemented, and it 
would send a troubling signal about the administration's 
commitment to fundamental equal opportunity principles. I 
strongly support the survey, and just your reaction.
    Mr. Radzely. Yes, Senator. The Department and this 
administration does, as well, support the survey, and, in fact, 
has contracted with Apt Associates from Cambridge, 
Massachusetts, to provide a detailed study of the ability of 
the EO survey to target individual companies. We are interested 
in improving our enforcement targeting mechanisms and we are 
very hopeful that the study will tell us what parts of the EO 
survey are, in fact, useful in targeting companies.
    Senator Kennedy. Well, to whatever extent you can keep that 
on the move. I understand it had been slowed down, but if you 
can look into that.
    Could we welcome your wife, Lisa, and I understand you have 
got a three-year-old son Brendan.
    Mr. Radzely. Running around----
    Senator Kennedy. We want to tell him what a patient and 
well-behaved young man he is. [Laughter.]
    Senator Kennedy. I will tell you, to have to go through 
this and listen to your father be questioned by all of these 
older grumpy people up here-- [Laughter.]
    Senator Kennedy. But we are very glad to see you and we 
welcome you here to the committee.
    I thank the chair for all of the time that you have given 
us on these kind of things.
    The Chairman. Thank you, Senator, and I want to thank you, 
Mr. Radzely. I think your presentation today has reflected your 
expertise and your professionalism and has reinforced why you 
should be confirmed. You certainly have the talent and the 
ability to do the job. Your answers were very professional and 
on point.
    You got caught, unfortunately, and you have been caught, 
unfortunately, and the only reason we are having this hearing, 
unfortunately, is because you are in the middle of a cross-fire 
between some of my colleagues on the other side and the 
Secretary of Labor and the administration, which is--that is 
the way it works. But I think it does not reflect on your 
talent and ability, which I greatly admire and I think we are 
fortunate to have you as a nominee. Thank you very much.
    [The prepared statement of Mr. Radzely may be found in 
additional material.]
    Senator Kennedy. Thank you very much.
    [Additional material follows.]

                          ADDITIONAL MATERIAL

                Prepared Statement of Howard M. Radzely

    Thank you Mr. Chairman, Senator Kennedy, and distinguished Members 
of the Committee. It is an honor to appear before you today as you 
consider my nomination to be the Solicitor 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 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. 
Finally, I would like to thank my wife Lisa and my 3\1/2\-year-old son 
Brendan for all the sacrifices they have made to allow me to serve in 
the government and for the sacrifices they will make if I am confirmed 
to be the Solicitor.
    Prior to joining the Department of Labor, I was in private practice 
here in Washington, D.C. The main focus of my practice was advising 
clients, primarily employers, how to comply with the various labor and 
employment laws such as the Fair Labor Standards Act, Executive Order 
11246, Family and Medical Leave Act, Occupational Safety and Health 
Act, Service Contract Act, and many others.
    Since coming to the Department in June 2001, I have had the 
opportunity and privilege of working with the employees of the 
Solicitor's Office--some of the finest attorneys and public servants I 
have known--on a wide range of legal issues. In my view, the 
Solicitor's Office has two distinct but vitally important roles.
    First, and foremost, the Solicitor's Office has the important 
responsibility of working in tandem with the individual agencies of the 
Department to vigorously enforce the laws under the Department's 
jurisdiction. Unlike most cabinet agency general counsel's offices, the 
Solicitor's Office has the authority to litigate cases in a wide 
variety of areas including the Occupational Safety and Health Act, Mine 
Safety and Health Act, Employee Retirement Income Security Act, Fair 
Labor Standards Act, Davis-Bacon Act, Service Contract Act, and 
Executive Order 11246, to name a few.
    Second, the Solicitor's Office provides legal advice to the 
Secretary and the agencies in the Department on rulemakings, ethics 
laws, procurement, permissible interpretations of various statutes and 
regulations, and the wide array of other legal matters that arise under 
the nearly 200 laws that the Department administers and enforces.
    With regard to enforcement, it is important for the Solicitor's 
Office to vigorously prosecute cases and to use the full range of legal 
tools at its disposal. Through judicious use of all of its enforcement 
tools, the Department can obtain justice for those who have been 
treated unfairly in violation of the law, and can deter those who might 
choose to violate the statutes and regulations enforced by DOL. For 
example, I have urged Solicitor's Office attorneys to make expanded use 
of Section 11(b) of the OSH Act, a provision which had rarely been 
used. This section of the OSH Act allows the Department to have orders 
of the OSH Review Commission (including settlements) entered as orders 
of the courts of appeals. This statutory authority allows the 
Department to seek contempt and significantly greater sanctions, rather 
than filing a failure to abate proceeding, in the event that the 
employer violates a Commission order. To take one other example, since 
I became Acting Solicitor, I have refused to settle cases in which 
employers have violated OFCCP conciliation agreements without obtaining 
additional penalties--which has included debarment from contracting 
with the Federal Government.
    I also believe it is especially important for the Department to 
focus enforcement efforts on employers who exploit, among others, low-
wage and vulnerable workers as well as on employers who repeatedly 
violate the laws enforced by the Department. Low-wage and vulnerable 
workers are the workers who most need our assistance and who can most 
benefit from the Department's aggressive actions to protect their 
rights. For example, the Solicitor's Office has been aggressively using 
the Fair Labor Standards Act's hot goods provision, which prevents the 
shipment of goods in interstate commerce produced in violation of the 
Act, often in industries that have a high percentage of low-wage 
workers. In addition, I have placed a premium on swift action by 
attorneys in the Solicitor's Office in all enforcement cases, and in 
particular in those cases in which the Department determines that an 
employer retaliated against an employee for exercising his or her 
rights, such as under the Mine Safety and Health Act.
    In the 7 months since I became Acting Solicitor, the Solicitor's 
Office has initiated a number of major enforcement actions in various 
programs. For example, last month, the Department filed suit against 
Enron, the administrative committee, Kenneth Lay, Jeffrey Skilling, and 
the outside members of the Board of Directors for breach of fiduciary 
duty. Attorneys in the Solicitor's Office continue to support the 
Employee Benefits Security Administration as it investigates a number 
of other corporate fraud cases.
    In the OSHA area, since I became Acting Solicitor in January, the 
Department has issued nine ergonomic citations under OSHA's general 
duty clause. These citations were issued in a variety of industries, 
including nursing homes, the printing industry, warehousing, and the 
beverage distribution industry. Solicitor's Office attorneys throughout 
the country are prosecuting these cases. In the wage-hour area, we are 
continuing our efforts to ensure that poultry workers are compensated 
for donning and doffing by litigating against two poultry producers and 
by filing, last month, an amicus brief in the First Circuit Court of 
Appeals in support of private poultry plaintiffs' petition for 
rehearing in Tum v. Barber.
    To take one last example, from the civil rights area, as Acting 
Solicitor I recently authorized the filing of the second systemic 
compensation discrimination case by the Department in over 25 years. 
The only other systemic compensation discrimination case filed by the 
Department in the last 25 years was one that I authorized while Acting 
Solicitor in 2001.
    In addition to approving enforcement actions and working with 
attorneys to strengthen those actions, I have also intervened in cases 
when such intervention would facilitate reaching favorable settlements. 
I believe it is important for the Solicitor, or the Acting Solicitor, 
to demonstrate to attorneys in the Solicitor's Office, to investigators 
in the client agencies, and to the regulated community his or her 
commitment to enforcement by personal involvement when such 
intervention can improve the chance for favorable results. For example, 
as Acting Solicitor in 2001, I worked with lawyers in the National 
Office and the Philadelphia Office to negotiate a final settlement of 
the Beverly Nursing Home ergonomics case. One significant feature of 
this settlement is that the terms extend beyond the cited facilities to 
a nationwide agreement. Similarly, I worked with career civil servants 
in the Solicitor's Office and the Wage and Hour Division to negotiate 
one of the largest Wage-Hour settlements ever, a $10 million settlement 
with Perdue for failing to compensate employees for donning and 
doffing.
    Regarding the second important mission of the Solicitor's Office, 
the legal advisory functions, I believe that attorneys must provide 
their client agencies with clear, concise, easy-to-understand legal 
advice that is based on a careful review of all relevant legal 
authorities. Whether it is legal advice on a newly passed statute, an 
ethics issue, a proposed or final regulation, or any other question, 
attorneys must inform their clients of the range of options that are 
legally available and the legal risks attendant to or prohibitions on a 
particular course of action. As with any legal organization, 
Solicitor's Office attorneys must be responsive, thorough, and 
objective. They must have the confidence and trust of their client 
agencies.
    In addition to enforcement and legal advice functions, the 
Solicitor of Labor also manages one of the nation's largest law firms--
a staff of approximately 700 employees including some 500 attorneys 
working throughout the country. Throughout my tenure at the Department, 
and particularly since I became Acting Solicitor in January 2003, I 
have stressed the need to share cases, experiences and work among the 
various offices. For example, a number of OFCCP cases have been shifted 
among regions and the national office to ensure that they would be 
handled more quickly.
    Close coordination among offices also enables the Solicitor's 
Office to properly staff major cases, such as Enron, with attorneys in 
multiple offices helping to litigate against teams of lawyers on the 
other side. Close coordination also facilitates the ability of the 
Solicitor's Office to shift work if one office becomes overloaded and 
to more effectively deploy the legal talent in the various offices. 
Shortly after arriving at the Department in 2001, I requested that the 
Solicitor's Office set up a nationwide internal brief bank to ensure 
that all of our offices had access to key briefs and legal memorandum. 
This internal database should continue to help increase the efficiency 
of the Solicitor's Office. If confirmed as Solicitor, I will continue 
these efforts to improve the Office of the Solicitor's ability to 
litigate all cases, including the increasingly complex cases against 
defendants with numerous lawyers.
    To mention one last management principle that is important to me, 
as Acting Solicitor I have worked hard to give a greater role to the 
Associate and Regional Solicitors in the overall management of the 
office. These dedicated senior career civil servants have tremendous 
substantive knowledge and a keen sense of what is needed to improve the 
management of the Solicitor's Office and thus enhance the Solicitor's 
Office's ability to bring strong enforcement actions and render high-
quality legal advice.
    In conclusion, the Department of Labor Solicitor's Office has a 
long and proud tradition of protecting America's workers and providing 
sound legal advice to its client agencies. I appreciate the great 
responsibility that I will bear if confirmed for the difficult and 
challenging job as Solicitor and understand the need to carry on the 
office's great tradition. Thank you again for considering my 
nomination, and I would be pleased to answer any questions that you may 
have.
      Response to Questions of Senator Kennedy From Howard Radzely
541 Regulations
    The Department of Labor's proposed overtime regulations changes 
have been controversial among a number of critics. There are concerns 
that they will weaken overtime pay protections and exclude hundreds of 
thousands of workers from receiving overtime pay.
    1. Has the Solicitor's office had any involvement in proposed 
modifications to the FLSA ``white collar'' exemption regulations? 
Please describe.
    Answer: Yes, the Solicitor's Office has been providing legal advice 
to the Employment Standards Administration's Wage and Hour Division 
(WHD) throughout the ongoing rulemaking process. The Solicitor's Office 
has had a number of lawyers, principally led by the Associate Solicitor 
far the Fair Labor Standards Division, who have been advising the WHD 
and who reviewed the draft Notice of Proposed Rulemaking, which was 
largely completed last year. Specifically, the Solicitor's Office 
reviewed the policy decisions of the WHD for compliance with the Fair 
Labor Standards Act, the Administrative Procedure Act, and all other 
applicable statutes, regulations, executive orders and case law. Once 
the comment period closes on this Notice of Proposed Rulemaking at the 
end of this month, the Solicitor's Office will work with the WHD to 
ensure that any final rule that the WHD may choose to promulgate 
considers all comments in the record, is supported by the-record, and 
is consistent with all applicable statutes, regulations, executive 
orders, and case law. As Acting Solicitor, and if I am confirmed as 
Solicitor, I will work with the attorneys in the Solicitor's Office to 
ensure the integrity of the rulemaking process and to ensure that the 
Department's policy decisions are supported by the record and 
consistent with all applicable legal authorities.
    2. Was anyone in Congress consulted before these changes were 
proposed? If not, why wasn't Congress consulted about these major 
changes? Will you and the Wage and Hour Division commit to consulting 
with Congress before you further develop this rule?
    Answer: I am aware that the WHD had a number of stakeholder 
meetings before it proposed changes to the ``white collar'' exemption 
regulations. I not aware whether the WHD consulted with any Members of 
Congress before these changes were proposed. The comment period is 
currently ongoing and the record will remain open until June 30, 2003. 
All comments received by that date, including comments from Members of 
Congress, will be considered by the WHD when drafting any final rule. 
Under the Administrative Procedure Act and applicable case law, any 
final rule promulgated by the WHD must be based on the rulemaking 
record. Should the Department decide to finalize a new ``white collar'' 
exemption regulation, as Acting Solicitor, and if I am confirmed as 
Solicitor, I will work with the attorneys in the Solicitor's Office to 
ensure the integrity of the rulemaking process and to ensure that the 
Department's policy decisions are supported by the record and 
consistent with all applicable legal authorities.
LM-2 Initiative
    The Department of Labor has proposed a major expansion of the LM-2 
financial reporting requirements for labor organizations. I understand 
that the Department's justification for the rules is that they will 
enhance financial transparency and accountability. Critics are 
concerned that therules dramatically expand the recordkeeping and 
reporting burden on labor organizations, at a cost of hundreds of 
millions of dollars, with questionable benefits to workers.
    1. What has been the involvement of the Solicitor's office in this 
rulemaking? What has been your involvement?
    Answer: The Solicitor's Office has had a number of lawyers, 
principally led by the Associate Solicitor for the Labor Management 
Laws Division, providing legal advice to the Employment Standards 
Administration's (ESA) Office of Labor-Management Standards (OLMS) 
during the promulgation of the proposed rule and during OLMS's ongoing 
review of the comments received during the comment period. The Notice 
of Proposed Rulemaking (NPRM) was published on December 27, 2002. My 
involvement at the proposal stage was limited. Since the comment period 
closed on March 27, 2003, as Acting Solicitor, I have been working with 
the Associate Solicitor for Labor Management Laws and other attorneys 
in the Solicitor's Office to ensure that any decisions regarding the 
final rule made by the Department consider all comments in the 
``record, are supported by the record, are consistent with the Labor-
Management Reporting and Disclosure Act of 1959, as amended, the 
Administrative Procedure Act, and all other applicable statutes, 
regulations, executive orders, and case law. As Acting Solicitor, and 
if confirmed as Solicitor, I will work with attorneys in the Solcitor's 
Office to ensure the integrity of the rulemaking process and to ensure 
that the Department's policy decisions are supported by the record and 
consistent with all applicable legal authorities.
    2. The major burden of the rules will be borne by small labor 
organizations, many of which are run by volunteers. More than 90 
percent of affected unions fall within the Small Business 
Administration's definition of ``small entities.'' Yet the proposed 
financial reporting rule makes no attempt to distinguish between the 
requirements imposed on small entities as cot pared to larger 
organizations. Did the Office of the Solicitor review the proposed file 
for its compliance with the various statutes; regulations, and 
executive orders requiring agencies to take special account of the 
impact of their rules on small entities? If so, who conducted that 
review, what did it entail, and what were the conclusions reached? 
Please provide copies of any reports or documents provided to your 
office regarding the impact of the rules on small entities.
    Answer: Yes, prior to publication of the NPRM on December 27, 2002, 
lawyers in the Solicitor's Office reviewed the proposed rule for its 
compliance with all legal authorities requiring agencies to take 
special account of the impact of the proposed rule on small entities 
and insisted that ESA include an initial regulatory flexibility 
analysis in the NPRM. The Associate Solicitor for Labor Management 
Laws, with the assistance of attorneys in her office and attorneys in 
other divisions who have experience in drafting and reviewing 
regulations, reviewed the analysis performed by ESA, as well as the 
entire NPRM, for compliance with all legal authorities that require 
agencies to take special account of the impact of the proposed rule on 
small entities. Following this review, the Solicitor's. Office 
concluded that the NPRM published in the Federal Register last December 
complied with all relevant legal authorities. I have attached behind 
Tab A copies of the following reports and documents, which reflect 
ESA's analysis of the impact of the proposed rule on small entities and 
which were reviewed by the Solicitor's Office prior to publication of 
the NPRM: the Initial Regulatory Flexibility Analysis section of the 
NPRM and the Technical Feasibility Study for an On-line Financial 
Downloading System prepared for OLMS by SRA International, Inc.
    3. The Department states that the rules will not have an economic 
impact of more than $100 million, and as a result, has not performed an 
economic analysis of the benefits and burdens of the proposed rule as 
required by Executive Order 12866. Did your office review that 
determination? If so, who conducted that review and what did it entail? 
What documentation was your office provided concerning the likely 
economic impact of the rules? Please provide copies.
    Answer: Yes, the Solicitor's Office last year reviewed the 
determination required by EO 12866 that the proposed rules will not 
have an economic impact of more than $100 million. That review was 
conducted by the Associate Solicitor for Labor Management Laws in 
consultation with attorneys in her Division and other divisions. I 
understand that the review entailed an examination of the NPRM, 
particularly the section concerning the Paperwork Reduction Act, and 
the additional analysis contained in the full Paperwork Reduction Act 
package submitted to the Office of Management and Budget (OMB). The 
NPRM is attached in response to the prior question behind Tab A. I have 
attached behind Tab B a copy of the Department's Paperwork Reduction 
Act package submitted to OMB.
Ergonomics Enforcement
    When the Secretary of Labor announced her plan on ergonomics 
following the repeal of OSHA's ergonomics rule, she committed the 
Department to a vigorous enforcement initiative under the OSH Act's 
``general duty'' clause. The Office of the Solicitor obviously plays a 
key role in designing such an enforcement program.
    1. What has been your involvement in developing a general duty 
enforcement program on ergonomics?
    Answer: I have worked closely with attorneys in the Solicitor's 
Office's Occupational Safety and Health Division as well as with 
attorneys in regional offices throughout the country to develop for 
prosecution ergonomics cases under the OSH Act's ``general duty'' 
clause. For example, in the five months since becoming Acting Solicitor 
in January 2003, I have personally reviewed and approved eight general 
duty clause ergonomics citations in a number of different industries. 
(See answer number 3 below for further details.) In addition, while I 
was Acting Solicitor from June 2001 through January 2002, I was 
personally involved in the Beverly Enterprises nursing home ergonomics 
case and was able to negotiate a settlement which provided for 
nationwide abatement of ergonomics hazards at all facilities within 
OSHA's jurisdiction, even though the citations involved only five 
facilities in Pennsylvania. Moreover, at my request, attorneys from the 
OSH Division of the Solicitor's Office provided training and continue 
to provide assistance to state attorneys in state plan states 
concerning prosecution of ergonomics citations under the general duty 
clause. I have also worked closely with attorneys in the OSH Division 
and the Regional Solicitors' offices to develop procedures that will 
ensure successful prosecution of ergonomics cases under the OSH Act 
general duty clause. Additionally, I worked with OSHA and; ``attorneys 
from the OSH Division to develop ergonomics emphasis programs in 
several industries. (See below for more details.) As Acting Solicitor, 
and if I am confirmed as Solicitor, I intend to work closely with OSHA 
and attorneys throughout the Solicitor's Office to ensure successful 
prosecution of ergonomics cases.
    2. Please describe the Department's general duty enforcement 
program on ergonomics. Is the Department conducting targeted 
inspections? If so, which industries and employers are being targeted? 
What standards or criteria is your office using to determine whether or 
not to bring a general duty enforcement case on ergonomics, e.g., 
number/type of injuries, presence of serious hazards, etc.? What is the 
Department's definition of a ``recognized'' ergonomics hazard? Please 
provide any documents describing the Department's general dirty 
enforcement program on ergonomics.
    Answer: The Department's general duty clause enforcement strategy 
for ergonomics is based on its prior experience in ergonomics cases, 
including the successful resolution of the Beverly Enterprises case, 
the Occupational Safety and Health Review Commission's decisions in the 
Beverly Enterprises and Pepperidge Farms cases, and the Department's 
efforts under the general duty clause for other workplace hazards. 
Specifically, the Department is focusing on cases in which it can meet 
the four prongs of the general duty clause-the existence of an 
ergonomics hazard; whether the hazard is recognized; whether the hazard 
is causing or is likely to cause serious physical harm to employees; 
and whether a feasible means exists to reduce the hazard. As part of 
the Department's enforcement program, specialized training has been 
provided to OSHA inspectors and attorneys from the Solicitor's Office 
on how to inspect a workplace for ergonomics hazards, how to prepare a 
citation for ergonomics hazards, and how to prosecute a citation to 
successful resolution. The Department's general duty clause enforcement 
program on ergonomics includes inspections scheduled in several ways: 
targeting workplaces in industries with relatively high rates of 
injuries thought to be related to ergonomics hazards and where feasible 
means to reduce those hazards are available; reviewing ergonomics 
conditions during inspections conducted as part of OSHA's regular 
inspection program; and responding to specific complaints.
    As part of the Department's general duty clause enforcement 
program, OSHA has one National Emphasis Program in the nursing home and 
personal care industry. Additionally, OSHA has fourteen Regional 
Emphasis Programs and three Local Emphasis Programs that target 
ergonomics hazards in four industries: meatpacking, auto parts, 
hospitals, and warehousing.
    The criteria that the Solicitor's Office uses in deciding whether 
to bring an ergonomics case are whether the Department can establish 
the four criteria necessary to prove a general duty clause violation: 
the existence any one ergonomics hazard; whether the hazard is 
recognized; whether the hazard is causing or is likely to cause serious 
physical harm to employees; and whether a feasible means exists to 
reduce the hazard.
    The Department's definition of ``recognized'' hazard is taken from 
well established case law detailing what OSHA must establish to 
demonstrate that a hazard is ``recognized'' for purposes of the general 
duty clause. OSHA has had success in general duty clause cases, 
including those involving citations for ergonomics hazards, 
establishing recognition of a hazard on the basis of industry 
recognition, employer recognition, and, in some cases, commonsense 
recognition. How the Department will prove recognition of the hazard 
necessarily depends on the facts of each individual case, including the 
specific ergonomics hazard which is causing serious injuries. Among the 
specific means OSHA has used in the past are 4igh rates of work-related 
injuries recorded by the company, internal company investigations, 
reports from experts, and recommendations by insurance companies on how 
to reduce injuries/illness rates.
    I have attached behind Tab C the following documents describing the 
Department's general duty enforcement program on ergonomics. I have 
attached OSHA Directive Number: 02-03 (CPL-2), OSHA's National Emphasis 
Program-Nursing and Personal Care Facilities SIC 8051, 8052, 8059 (July 
17, 2002). I have also attached OSHA Instruction CPL 2.103, Field 
Inspection Reference Manual (FIRM), September 26, 1994 (pp. III-8 to 
III-13) which provides guidance on application of the general duty 
clause in OSHA inspections and is referenced in the National Emphasis 
Program. I have also attached documentation on twelve of the seventeen 
Regional and Local Emphasis Programs provided to me by OSHA. An 
additional document, the Ergonomic Case Development Procedures, is an 
internal privileged and confidential document developed by attorneys in 
the Solicitor's Office OSH Division and 08HA employees to ensure that 
the Solicitor's Office can successfully prosecute ergonomics citations. 
Because release of this internal document could seriously compromise 
the Department's enforcement efforts, I have not attached this document
    3. How many general duty ergonomics enforcement cases have been 
brought since the repeal of the ergonomic rule? Please provide 
information on all such cases, including the employer cited, the nature 
of the citations, the penalty assessed, and the outcome of the cases in 
terms of penalties and abatement.
    Answer: Since becoming Acting Solicitor in January 2003, I have 
approved and the Department has issued ergonomics citations against six 
facilities and I have approved two additional citations which are 
expected to be issued shortly. The issued citations, which are 
described as requested in the chart below, are against three nursing 
homes, a manufacturer of heavy doorframes, a printing, company; and a 
food distribution warehouse facility: (The citations I have approved, 
but which have not yet been issued, are also against nursing homes.) 
Between early 2001, when the ergonomics regulation was repealed under 
the Congressional Review Act, and January 2003, OSHA issued a number of 
ergonomics hazard alert letters, but brought no ergonomics cases.
OSHA Ergonomics Enforcement Actions 2001-June 9, 2003
    Alpha Health Services.--Three nursing homes located in Idaho. 
Employees were experiencing back injuries from resident handling 
activities.
    Nursing Home NEP inspection.--Ergonomics citations (one to each 
nursing home) issued February 21, 2003, settled March 13, 2003. The 
penalty proposed for the ergonomics citation for each location was 
$900. The settlement provided for payment of penalties of $265 for each 
of two locations and $270 for the third. The nursing homes agreed to 
implement a policy for transferring and lifting non-weight-bearing and 
partial-weight-bearing residents that mandates the use of appropriate 
mechanical lift assist and transfer devices to the extent possible.
    Security Metal Products.--Clinton, Oklahoma--manufactures custom 
door frames. Employees were experiencing back injuries due to lifting, 
pulling and pushing of heavy doorframes during the assembly, finishing 
and painting process.
    Ergonomics citation issued February 26, 2003, settled March 18, 
2003 (together with nine other nonergonomics citation items). A penalty 
of $5,600 was proposed. The employer agreed to a program providing for 
the implementation of all feasible engineering controls by November 17, 
2003. The penalty for this citation was reduced to x2,800 in the 
settlement.
    Brown Printing Co.--East Greenville, Pennsylvania--lithographic 
printing of catalogs and magazines. Employees were experiencing back 
and shoulder injuries from reaching, pulling, lifting and flipping 
stacks of printed material.
    Ergonomics citation issued May 27, 2003. The proposed penalty is 
$4,500. The company has contested the citation.
    Supervalu Holdings, Inc.--Hazelwood, Missouri--supermarket food 
distribution warehouse facility. Employee/order selectors experiencing 
back and shoulder injuries from reaching, pulling and lifting heavy 
grocery packages.
    Ergonomics citation issued May 22, 2003. A penalty of $6,300 was 
proposed for this citation. The company has 15 working days after 
receipt of the citation to file a notice of contest.
Payment for Personal Protective Equipment
    For several years, OSHA has had a rule pending that would require 
employers to pay for OSHA-required personal safety equipment, such as 
hard hats and safety gloves. Paying for this safety equipment is 
particularly hard on low-income workers. OSHA initiated the rulemaking 
after the Occupational Safety and Health Review Commission decided that 
OSHA's policy requiring employers to pay for this equipment was not 
entitled to deference. The rulemaking record closed several years ago, 
but the rule has languished and is listed as ``next action 
undetermined'' in the most recent Regulatory Agenda.
    1. Has your office been consulted about proceeding with a final 
rule on payment for personal protective equipment? Have you been 
involved in such consultations? Please describe.
    Answer: Attorneys in the Solicitor's Office's OSH Division have 
been providing legal advice to OSHA as the Department considers what 
action to tine next in response to the comments received on OSHA's 
Notice of Proposed Rulemaking. Solicitor's Office attorneys have been 
working with OSHA to ensure that any Departmental decision is 
consistent with the rulemaking record, the OSH Act, the Administrative 
Procedure Act, and all applicable statutes, regulations, executive 
orders and case law and they have kept me apprised of their work. When 
the Department makes final decisions on personal protective equipment 
(PPE) and a draft Federal Register notice is completed, I will, as 
Acting Solicitor, and if I am confirmed as Solicitor, work with 
attorneys in the OSH Division to ensure that the Department's decisions 
consider the comments in the rulemaking record, are based on the 
rulemaking record, and are consistent with all applicable legal 
authorities.
    2. Is there a legal impediment to OSHA's proceeding with a final 
rule requiring employer payment for PPE? If so, please explain.
    Answer: As noted above, the Department's final decision must be 
consistent with the rulemaking record and applicable legal authority. I 
have not had the opportunity to review the comments to the proposed 
rule; therefore I do not at this time have any opinion about whether 
there are any legal impediments to OSHA proceeding with a final rule 
requiring employer payment for PPE.
    3. In the past three years, has OSHA cited any employers for 
failing to pay for required safety equipment? Has your office been 
involved in any such cases? Please provide details about any such 
cases, including the nature of the case and its outcome.
    Answer: I am unaware whether OSHA has cited any employers for 
failing to pay for required safety equipment in the past three years. 
However, a number of specific standards require-employers to pay for 
certain PPE, and OSHA may have cited employers under these standards. I 
have consulted with the Associate Solicitor for Occupational Safety and 
Health and the eight Regional Solicitors and they were not aware of any 
litigated cases in the past three years which, if successful, would 
require employers to pay for PPE.
Tuberculosis Rule
    I understand that the Department of Labor does not plan to pursue 
the tuberculosis (TB) regulation that was previously on the OSHA 
agenda.
    1. Was your office involved in this decision? Was a decision made 
that TB does not pose a significant risk to workers who experience 
occupational exposure?
    Answer: The Department announced in its Spring Regulatory Agenda 
that it intends to withdraw the TB regulation. Before the agenda was 
published, OSHA consulted with attorneys in the Solicitor's Office's 
OSH Division to ensure that the Department's decision withdrawing the 
rule was consistent with the rulemaking record and in accord with the 
OSHA Act and all applicable statutes, regulations, executive orders and 
case law. I am advised that the Solicitor's Office's OSH Division 
advised OSHA that OSHA's decision was, in its view, consistent with the 
rulemaking record and in accord with all applicable legal authorities. 
I am not aware of any decision, based on the rulemaking record, 
regarding whether TB poses a significant risk to those workers who 
experience occupational exposure. Because any final decision closing a 
rulemaking must be based on the rulemaking record and because the 
Federal Register notice withdrawing the proposed rule has neither been 
completed nor reviewed by me, I do not know at this time the specific 
bases on which the rule is proposed to be withdrawn. I understand that 
OSHA has publicly stated its rationale in a press release dated May 30, 
2003.
    2. Does the Department have plans to protect against occupational 
exposure to TB under the general duty clause? If so, what criteria have 
been established to determine whether a recognized hazard exists?
    Answer: Yes; the Department has a plan in place to protect against 
occupational exposure to TB under the general duty clause. Although 
OSHA does-not have a specific TB standard, it does have a number of 
other standards relevant to TB exposure. Since 1996, OSHA has had in 
place Directive CPL 2.106, Enforcement Procedures and Scheduling for 
Occupational Exposure to Tuberculosis (February 06, 1996). This 
Directive remains in effect. I understand that OSHA has issued 
approximately 150 citations pursuant to this Directive, including some 
40 general duty clause citations. Moreover, one of the components of 
the National Emphasis Program or nursing homes, described above, is 
inspecting for occupational exposure to TB. I am also aware that TB is 
a component of several regional and local emphasis programs.
    As noted above, the Department's definition of ``recognized'' 
hazard is taken from well-established case law detailing what OSHA must 
establish to demonstrate that a hazard is ``recognized'' for purposes 
of the general deity clause. OSHA has had success in general duty 
clause cases establishing recognition of a hazard on the basis of 
industry recognition, employer recognition, and, in some cases, common 
sense recognition. In case of TB, the Department has also utilized 
guidelines published by the Centers for Disease Control and Prevention. 
How the Department will prove recognition of the hazard necessarily 
depends on the facts of each individual case.
Statutory Authority for Proposed 541 Regulation
    What is ;our understanding of the intent of the Fair Labor 
Standards Act (FLSA)? Now is the proposed 541 regulation consistent 
with this legislative intent?
    Answer: As the Supreme Court has indicated on a number of 
occasions, the Fair Labor Standards Act (FLSA) was intended to 
establish minimum wage standards and to more widely distribute work 
among more employees. Regarding the exemptions for administrative, 
executive and professional employees, Congress expressly provided the 
Secretary of Labor with authority to define these terms. See 29 U.S.C. 
213(a)(1) (``as such terms are defined and delimited from time to time 
by regulations of the Secretary'').
    In Mitchell v. Kentucky Finance Co., 359 U.S. 290, 295 (1959), the 
Court stated that exemptions to the FLSA must ``be narrowly 
construed.'' Do you believe that the proposed regulation meets that 
standard? Please explain.
    Answer: Yes. The Solicitor's Office, principally led by the 
Associate Solicitor for the Fair Labor Standards Division, reviewed the 
notice of--proposed rulemaking and determined that the proposal was 
consistent with the Fair Labor Standards Act. Section 13(a)(1) of the 
Act expressly provides the Secretary with the authority to define the 
terms ``executive,'' ``administrative,'' and ``professional.'' See 29 
U.S.C. 213(a)(1) (``as such terms are defined and delimited from to 
time by regulations of the Secretary'').
    Aren't the proposed changes in the duties tests uniformly favorable 
to employers and unfavorable to employees?
    Answer: No. In addition to increasing the salary level below which 
a worker is automatically entitled to overtime from $155 to $425 per 
week, the Wage and Hour Division's (WHD) proposal would, for example, 
make it more difficult than it, is under current law to qualify as an 
exempt executive. The standard test in the proposed rule, which applies 
to all employees earning less than $65,000 per year, adds a third 
requirement that the employee ``has the authority to hire or fire other 
employees or whose suggestions and recommendations to the hiring, 
firing, advancement, promotion or any other change of status of other 
employees will be given particular weight''--to the two requirements 
oft he existing short test, which is used today to test nearly all 
employees for the executive exemption.
    Isn't, creating a new exemption of ``highly compensated employees'' 
in clear violation of legislative intent to create only three 
exemptions? Didn't Congress reject a salary ceiling in 1938?
    Answer: As proposed by the WHD the test for highly compensated 
employees contains the requirements that employees perform non-manual 
work, that employees perform an identifiable executive, administrative 
or professional function, and is consistent with the Fair Labor 
Standards Act. As I understand, since at least the 1950s the 
regulations have contained a different duties test for highly 
compensated employees. For example, the current section 541.119 is 
entitled ``Special proviso for high salaried executives.'' See also 
current Section 541.214 (``Special proviso for high salaried 
administrative employees'') and current Section 541.315 (``Special 
proviso for high salaried professional employees''). The WHD Notice of 
Proposed Rulemaking (NPRM) does not contain a salary ceiling because it 
has a duties test in add non to a salary level and thus many employees 
earning over $65,000 will be non-exempt under the Department's 
proposal.
    I have heard the argument that it is necessary to relax the duties 
test in order to increase the minimum salary test. Why is that the 
case?
    Answer: There is no legal reason why the salary levels cannot be 
changed without changing the duties test or vice versa.
Impact of Proposed 541 Regulation
    I understand that the Solicitor's Office has been providing legal 
advice to the Wage and Hour Division throughout the ongoing rulemaking 
process on the 541 regulation. Were you involved in the decision to 
promulgate a new regulation?
    Answer: In conjunction with a team of attorneys led by the 
Associate Solicitor for the Fair Labor Standards Division I have 
provided legal advise to the WHD on its NPRM.
    What is the goal of the new regulation.
    Answer: Tammy McCutchen, Wage and Hour Administrator, has explained 
that the goal of the WHD'S new regulation is to strengthen protections 
for low-wage workers and to make the rules easier to understand, apply, 
and enforce.
    What legal and/or Policy parameters did the Solicitor's Office 
impose, recommend, and/or, suggest during the rulemaking process?
    Answer: During the preparation of the NPRM, which was largely 
completed last year, the Solicitor's Office reviewed the policy 
decisions of the WHD for compliance with the Fair Labor Standards Act, 
the Administrative Procedure Act, and all other applicable statutes, 
regulations, executive orders and case law.
    Did you advise against any proposal that would have exempted fewer 
workers?
    Answer: The Solicitors Office reviewed the WHD's NPRM for 
compliance with all applicable legal authorities. The role of the 
Solicitor's office is to advise rulemaking agencies about the legal 
ramifications and sustainability of specific proposals.
    Did you advise in favor of any of the provisions that have the 
effect of exempting more workers?
    Answer: The Solicitor's Office reviewed all of the provisions of 
the WHD's NPRM to ensure that they were consistent with all applicable 
statutes, regulations, executive orders and case law.
    Is there any reason--statutory, regulatory, policy, or otherwise?--
why the benefits to employers of any revision to the 541 regulation 
must be greater than benefits to employees?
    Answer: Accepting the premise of your question, I am not aware of 
any legal reason why the benefits to employers of any revision to the 
541 regulations mast be greater than the benefits to employees or vice 
versa. However, as ESA/WHD have stated, the Department obviously 
believes that there are substantial benefits for employees in this 
NPRM.
    Isn't it possible to ``clarify'' rules without exempting any more 
workers?
    Answer: it would be nearly impossible, as a practical matter, to 
make clarifying changes to the rules without affecting the status of 
any non-exempt or exempt employee. However, it is the job of the 
Solicitor's Office to advise on legal requirements and sustain ability.
    Isn't it possible to ``avoid litigation'' without exempting any 
more workers?
    Answer: It would be nearly impossible as a practical matter, to 
make changes to the rules to ``avoid litigation'' without affecting the 
status of any non-exempt or exempt employee. However, it is the job of 
the Solicitor's Office to advise on legal requirements and sustain 
ability.
    Does ``modernizing'' and ``updating'' the regulations necessarily 
require exempting more workers?
    Answer: It would be nearly impossible, as a practical matter, to 
modernize'' and ``update'' the rules without affecting the status of 
arty non-exempt or exempt employee. However, it is the job of the 
Solicitor's Office to advise on legal requirements and sustainability.
    The proposed regulation claims that a greater increase in the 
minimum salary test would cause job loss in the South. Was there any 
economic analysis support conclusion.
    Answer: Yes. I understand that the Employment Standards 
Administration (ESA) prepared an economic analysis to support this 
conclusion.
    Did you analyze how many Wage and Hour opinion letters ruling that 
particular employees are non-exempt would be reversed by the proposed 
regulation?
    Answer: I am not aware of any analysis regarding whether, and if 
so, boor many, opinion letters would be affected by the proposed 
regulation.
    Would you please explain why 1.5 to 2.7 million on currently exempt 
workers who would otherwise become non-exempt due to the increase in 
the salary test
    ill continue to be exempt due to changes in the duties test. 
Wouldn't workers making over $22,100 fall under the short test?
    Answer: Under the proposed regulation, all workers earning less 
than $22,100 will automatically be non-exempt irrespective of their 
duties. I understand that the Department's economic analysis shows that 
1.5 million to 2.7 million currently exempt salaried workers will 
become more readily identified as exempt salaried workers as a result 
of clarifying the duties tests. I have been informed by ESA/WHD that 
the Department's analysis shows that these 1.5 million to 2.7 million 
workers, all of whom earn in excess of $22,100, are not eligible for 
overtime under the current rules and will remain exempt salaried 
workers under the proposed rule.
    I have been informed by ESA/WHD that one sentence in the preamble 
to the NPRM is apparently creating some confusion. This sentence 
states: ``The PRIA [preliminary regulatory impact analysis) indicates 
an additional 1.5 million to 2.7 million employees will be more readily 
identified as exempt from the overtime requirements of the FLSA because 
the updated duties tests will replace the duties tests in determining 
their exemption.'' This sentence would have been clearer if it had 
said: ``The PRIA indicates an additional 1.5 million to 2.7 million 
currently exempt salaried employees will be more readily identified as 
exempt from the over time requirements of the FLSA because the updated 
duties tests will replace the duties tests in determining their 
exemption.''
    What is the minimum amount of education required red to qualify as 
a professional under the proposed regulation?
    Answer: The minimum education requirement to qualify as a 
professional is the same under both the current and proposed 
professional exemption. Both the current and proposed rules require, 
among other things, that the employee be performing work in a field of 
science or learning that ``customarily'' requires an advanced, 
specialized degree. Since 1949; section 541.301(d) has explained that 
``customarily'' means that employees with equal status and attainment, 
but without a degree--such as ``the occasional chemist who is not the 
possessor of a degree in chemistry''--``are not barred from the 
exemption.'' The proposed rule continues this standard, as proposed 
section 541.301(d) states that ``customarily'' ``generally restricts 
the exemption to professions where specialized academic training is a 
standard prerequisite for entrance into the profession.''
    What is the minimum amount of education required to qualify as an 
employee with a high level of skill or training under the 
administrative exemption in the proposed regulation?
    Answer: Neither the current nor the proposed administrative 
exemption contains an education requirement.
Poultry and Meatpacking Industries
    A recent court decision held that some work activities--in 
particular, waiting in line for necessary equipment and walking to 
workstations to receive necessary equipment--may not be compensable 
activities. Do you agree, and if not, will you consider filing an 
amicus to the expected appeal?
    Answer: I do not agree with the First Circuit's recent decision in 
Tum v. Barber Foods, Inc. On June 17, the Department of Labor, under my 
direction as Acting Solicitor, filed an amicus curiae brief in support 
of the plaintiffs' motion for panel rehearing and rehearing en banc. 
Among other things, the brief argues that: ``The time spent by the 
poultry processing employees waiting and walking after performing their 
first principal activity and before performing their fast principal 
activity is compensable `hours worked' . . . .''
    In the settlement with Perdue, and the subsequent litigation with 
Tyson, the Department of Labor took a very principled stand in support 
of ensuing that poultry workers were paid for all time worked. In the 
opinion letter issued by the Wage and Hour Administrator (which 
invalidated a prior opinion Letter) regarding workers in meatpacking, 
however, the Department reached a very ?different decision by declining 
to ensure that all workers in meatpacking were similarly protected. 
Please discuss the contradiction in these policies, and the reasons why 
poultry workers are, in the view of Department of Labor, more worthy of 
FLSA coverage than meatpacking workers.
    Answer: First, to clarify; while I was personally involved in the 
Perdue negotiations, the Tysons negotiations and subsequent litigation, 
and the decision to sue George's Processing for, among other things, 
failing to compensate employees for donning and doffing, I was recused 
from consideration of the opinion letter you referenced until a few 
days before it was issued by the WHD. The opinion was requested by a 
then-partner at my prior law firm while I was under a one-year bar from 
consideration of particular matters invoking my prior firm.
    The opinion letter you referenced concerns the issue whether 
section 3(o) of the FLSA could apply to employees ``putting on [or] 
taking off'' ``protective equipment'' in the meat packing industry. As 
you know, Section 3(o) provides that ``there shall be excluded any time 
spent in changing clothes or washing at the beginning or end of each 
workday which was excluded from measured working time during the week 
involved by the express terms of, or by custom or practice under a bona 
fide collective bargaining agreement applicable to that particular 
employee.''As the Department has indicated in discovery of the Tysons 
case, depending on the facts of the particular case, the WHD's opinion 
letter applies in poultry, as well as meat packing, cases. Moreover, 
the Department's position that donning and doffing is compensable in 
the poultry industry applies to similarly situated workers in meat 
packing and other industries.
H-2A and H-2B workers
    In 2001, the Department of Labor failed to publish the adverse 
effect wage rates that apply to H-2A temporary foreign agricultural 
workers until a lawsuit was filed to enforce the Department's own 
regulation. Why did the Department decide not to publish the adverse 
effect wage rates in 2001 until sued, and to delay publication in 2002 
until a court heating was scheduled--and what role did the Solicitor's 
office play in these decisions? Why did the Department decide to appeal 
the decision of the District of Columbia federal district court and 
what role did the Solicitor's office have in deciding to make (and 
later, drop) the appeal?
    Answer: During the litigation, the government submitted a 
declaration by Christopher T. Spear, Assistant Secretary for Policy, 
explaining the reasons for its actions. The Declaration explained that 
while the Department usually publishes the adverse effect wage rate 
(AEWR) in February or March, the regulations require the Department to 
publish the AEWR ``at least once in each calendar year, on a date or 
dates to be determined by the Director'' and ``unusual circumstances'' 
caused the Department ``to delay its publication.'' The Declaration 
noted, among other things, that the Department ``ha[s] received 
correspondence from a number of members of Congress from both parties 
which indicate that the Congress is examining various legislative 
options to reform or replace the H-2A program. These legislative 
options include possible adjustments to the nature and scope of an 
employer's wage obligation. These members of Congress requested that 
the Department refrain from publishing an AEWR for the current calendar 
year until Congress has had an opportunity to address the issue since 
the issuance of an AEWR for this calendar year may negatively impact 
the progress and resolution of this legislative endeavor.'' Lawyers 
from the Solicitor's Office's Employment Training and Legal Services 
Division worked closely with the Justice Department throughout this 
litigation.
    As is common in cases in which the government receives an adverse 
civil decision from a federal district court, the Department of Justice 
filed a protective notice of appeal on behalf of the Department of 
Labor. The Solicitor's Office made a confidential recommendation to the 
Justice Department concerning whether appeal was warranted in this 
case.
    Under the FLSA, an employer must pay all workers the minimum wage, 
over and above the costs of transportation and other costs incurred for 
the primary benefit of the employer. The Eleventh Circuit, relying on 
Department of Labor opinion letters, held in Armada v. Florida Pacific 
Farms that this means an employer must reimburse temporary nonimmigrant 
workers for transportation and visa costs to the extent these expenses 
reduce workers' wages below the federal minimum. What steps is the 
Department or the Soficitor's office taking to enforce this decision in 
administering the H-2A and H-2B programs in the Eleventh Circuit and in 
other circus?
    Answer: The WHD is currently analyzing the Eleventh Circut's 
decision in Arriaga v. Florida Pacific Farms. The WHD, supported by the 
Solicitor's Office, has an active agriculture enforcement program. One 
of the WHD's national initiatives is in agriculture. I understand that 
during every agriculture investigation Wage-Hour investigators look 
for, among other things, violations by employers of H-2A and H-2B 
workers of various statutes, such as the FLSA and the Migrant and 
Seasonal Agricultural Worker Protection Act, including minimum wage 
violations. I have been informed that the WHD has one investigation 
from Florida which raises, among other things, the issues considered by 
the court in Arriaga. I am not aware of any cases referred to the 
Solicitor's Office that raise these issues.
    In how many instances has the Department of Labor documented non-
compliance with the FLSA minimum wage rules for H-2A or H-2B workers? 
Has use Department of Labor pursued enforcement of these rules? Has our 
office been involved in any such cases? Please provide the number of 
such cases, and the details of any such cases you have handled, 
including the nature of the case and its outcome.
    Answer: The Department has an aggressive program to combat minimum 
wage violations against H-2A and H-2B workers, and works to remedy any 
such violations as a major component of its agricultural initiative. I 
do not have statistics on the number of cases in which the WHD has 
documented non-compliance with the FLSA minimum wage rules for H-2A or 
H-2B workers. However, the WHD specifically investigates to determine 
if there are any such violations and is often successful at recovering 
back wages without the direct intervention of the Solicitor's Office. 
While I do not have exact statistics on cases riled by the Solicitor's 
Office in the last few years, I am aware of the following three cases 
involving FLSA minimum wave or overtime violations: pending litigation 
against the North Carolina Grower's Association where the employers 
failed to pay overtime to H-2A forestry workers; pending litigation 
against Sun and Moon Construction for failure to pay minimum wage to H-
2B workers; and a January 2002 injunction and unpaid minimum wage and 
overtime compensation of $33,392 against Color Spot Christmas Trees 
which employed H-2A, workers. As Acting Solicitor, and if confirmed as 
Solicitor, I stand ready to assist in these efforts.

    [Whereupon, at 11:34 a.m., the committee was adjourned.]

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