[Senate Hearing 110-752]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 110-752
 
                      NOMINATION OF GREGORY JACOB 
                           AND HOWARD RADZELY

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

                                HEARING

                                 OF THE

                    COMMITTEE ON HEALTH, EDUCATION,
                          LABOR, AND PENSIONS

                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                                   ON

 NOMINATION OF GREGORY JACOB, OF NEW JERSEY, TO BE SOLICITOR OF LABOR, 
U.S. DEPARTMENT OF LABOR; AND HOWARD RADZELY, OF MARYLAND, TO BE DEPUTY 
              SECRETARY OF LABOR, U.S. DEPARTMENT OF LABOR

                               __________

                            NOVEMBER 1, 2007

                               __________

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


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          COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS

               EDWARD M. KENNEDY, Massachusetts, Chairman

CHRISTOPHER J. DODD, Connecticut     MICHAEL B. ENZI, Wyoming,
TOM HARKIN, Iowa                     JUDD GREGG, New Hampshire
BARBARA A. MIKULSKI, Maryland        LAMAR ALEXANDER, Tennessee
JEFF BINGAMAN, New Mexico            RICHARD BURR, North Carolina
PATTY MURRAY, Washington             JOHNNY ISAKSON, Georgia
JACK REED, Rhode Island              LISA MURKOWSKI, Alaska
HILLARY RODHAM CLINTON, New York     ORRIN G. HATCH, Utah
BARACK OBAMA, Illinois               PAT ROBERTS, Kansas
BERNARD SANDERS (I), Vermont         WAYNE ALLARD, Colorado
SHERROD BROWN, Ohio                  TOM COBURN, M.D., Oklahoma

           J. Michael Myers, Staff Director and Chief Counsel

           Katherine Brunett McGuire, Minority Staff Director

                                  (ii)

  




                            C O N T E N T S

                               __________

                               STATEMENTS

                       THURSDAY, NOVEMBER 1, 2007

                                                                   Page
Kennedy, Hon. Edward M., Chairman, Committee on Health, 
  Education, Labor, and Pensions, opening statement..............     1
Enzi, Hon. Michael B., a U.S. Senator from the State of Wyoming, 
  opening statement..............................................     3
Brown, Hon. Sherrod, a U.S. Senator from the State of Ohio, 
  statement......................................................     4
Radzely, Howard, of Maryland, Nominee to be Deputy Secretary of 
  Labor, U.S. Department of Labor................................     5
Jacob, Gregory F., of New Jersey, Nominee to be Solicitor of 
  Labor, U.S. Department of Labor................................     6

                          ADDITIONAL MATERIAL

Statements, articles, publications, letters, etc.:
    Letters of Support...........................................    22
    Response to Questions of Senator Kennedy by:
        Gregory Jacob............................................    23
        Howard Radzely...........................................    29
    Response to Questions of Senator Clinton by:
        Gregory Jacob............................................    27
        Howard Radzely...........................................    37
    Response to Questions of Senator Gregg by Gregory Jacob......    28

                                 (iii)

  


                      NOMINATION OF GREGORY JACOB 
                           AND HOWARD RADZELY

                              ----------                              


                       THURSDAY, NOVEMBER 1, 2007

                                       U.S. Senate,
       Committee on Health, Education, Labor, and Pensions,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 10:40 a.m. in 
Room SD-430, Dirksen Senate Office Building, Hon. Edward M. 
Kennedy, chairman of the committee, presiding.
    Present: Senators Kennedy, Brown, and Enzi.

                  Opening Statement of Senator Kennedy

    The Chairman. We'll come to order.
    Today, our committee is considering the nominations of Mr. 
Howard Radzely, to be Deputy Secretary of Labor, and Gregory 
Jacob, to be Solicitor of Labor. Along with the Secretary of 
Labor, these positions are vital in determining Department 
policy and enforcing the law on behalf of America's workers. 
These are positions of great influence and responsibility that 
affect the lives of every man, woman, and child in America. 
They ensure that hardworking families who rely on overtime pay 
will be able to make ends meet. They protect the safety and 
health of workers performing difficult and dangerous work, and 
they determine whether parents who need to care for sick 
children can meet their family needs and still return to their 
jobs. They defend vulnerable workers who are abused by 
unscrupulous employers.
    It's essential that these officials have the experience and 
dedication to defend America's working families, especially 
now, when this Administration has shown a troubling lack of 
commitment to protect workers' rights.
    Under this Administration, workers have seen their overtime 
rights under attack. More than 6 million workers lost overtime 
rights when the Department revised its overtime rules in 2004. 
Workers have also lost the vital protection of our prevailing 
wages. After the Gulf Coast storms, when workers were desperate 
to support their families, the Administration suspended Davis-
Bacon protections, preventing workers in the recovery zone from 
earning a living wage.
    We've seen appalling failures in mine safety. In 2006, we 
had 72 mining fatalities, the highest rate in 5 years, while 
MSHA's inspection rate dropped to a record low level.
    We also have seen a complete failure to enforce essential 
ergonomics regulations. In 2005, there were more than 375,000 
ergonomic injury cases, and yet, the Administration issued only 
one citation for ergonomic injury.
    We've also seen an unprecedented decline in enforcement 
activity. Since this Administration took office, the number of 
workers whose workplaces have been inspected by OSHA has 
declined by 42 percent, the Wage and Hour Division has 
completed 30 percent fewer enforcement actions, more workers 
are getting back wages, but the Division is not pursuing real 
penalties against the employers who violate the law. Civil 
penalties have declined by more than 25 percent under this 
Administration.
    But, while the Department claims to be focusing its 
enforcement efforts on low-wage workers, its record in such 
industry has been dismal. The number of concluded cases is down 
by 68 percent in the garment industry, 39 percent in the 
agricultural industry, 32 percent in the healthcare industry, 
since this Administration took office.
    The Department of Labor was created to protect American 
workers. We're looking to these two nominees for realistic 
assurances that they'll carry out their important missions.
    We know that working families are facing unprecedented 
challenges that are likely to increase in the coming years. 
We've lost more than 3 million manufacturing jobs to 
outsourcing. Seven of the ten occupations with the largest job 
growth are low-skill, service-sector jobs, where workers are 
vulnerable, wages are low, and violation or evasion of our 
labor laws is common. Failure to enforce the laws has serious 
economic consequences for all employees and for the entire 
Nation.
    In facing these challenges, employees can't go it alone. In 
many areas, such as the enforcement of the Occupational Safety 
and Health Act, or enforcement of prevailing wage protections, 
workers have no remedy under the law. They have no way to 
protect their rights, unless the Department of Labor is willing 
to fight for them. Now more than ever they need the Department 
firmly in their corner, aggressively battling for workers' 
rights.
    We need to return to the days when the Department of Labor 
was a proactive partner in the fight for working families. We 
need a more effective enforcement of the laws. We need 
compliance audits to assure how well our laws are protecting 
workers. We need comprehensive information about the challenges 
facing working families. We need reforms to protect workers and 
prevent the kinds of workplace crises that cost American lives.
    The positions before us today will help determine whether 
the Department can fulfill these critical missions. The Deputy 
Secretary of Labor is the No. 2 official in the Department. He 
manages all of the legislative, regulatory, legal, and policy 
issues under the Department's jurisdiction, and oversees its 
$59 billion budget; under the leadership of the Secretary, the 
Deputy determines what the Department's priorities will be.
    The Solicitor of Labor is in charge of enforcing more than 
180 labor laws, addressing issues of vital importance to all 
working families, oversees a staff of more than 400 attorneys, 
and provides advice and guidance on policy, legislative, 
regulatory, and enforcement initiative. The Solicitor is truly 
the workers' lawyer, and must be a zealous advocate for 
workers' rights.
    These are challenging and important responsibilities. The 
laws enforced by the Department of Labor are about basic 
fairness. We need strong leadership at the Department to make 
these rights a reality for all Americans. And we thank you for 
joining with us today, and we'll look forward to introducing 
you after the comments of my friend and colleague Senator Enzi.

                   Opening Statement of Senator Enzi

    Senator Enzi. Thank you, Mr. Chairman. And I thank you for 
holding this nomination hearing. And I thank these two for 
being willing to go through the process. Quite often, not just 
in this committee, but in other committees, I wonder why 
anybody ever volunteers to take one of these appointments that 
has to go through the nomination process.
    But today we will be considering the President's nominees 
for two of the most significant labor positions in the Federal 
Government, that of the Deputy Secretary of Labor and that of 
the Solicitor of Labor. The individuals who fill these 
positions will be crucial in assisting the Secretary of Labor 
in implementing and overseeing our Nation's key labor and 
employment laws.
    Last year, we passed two monumental pieces of legislation 
that were enacted into law: the Mine Improvement and New 
Emergency Response Act, to the MINER Act, and the Pension 
Protection Act. These laws were the first comprehensive update 
of Federal mining and employee retirement benefit laws since 
the 1970s. Currently, the Department of Labor is working on 
implementing both through regulations, guidance, and 
enforcement oversight.
    The Deputy Secretary of Labor and the Solicitor of Labor 
will be instrumental in ensuring that these laws and other key 
laws overseen by the Department are properly implemented and 
given the appropriate regulatory and enforcement oversight. 
Individuals seeking these two prominent positions must possess 
the skills, qualifications, and knowledge to carry out these 
duties.
    Mr. Radzely is well known to the committee, as he's 
successfully served as the Solicitor of Labor for the past 4 
years. And Mr. Jacob previously served as Mr. Radzely's Deputy 
Solicitor for nearly a year and a half, and has served in other 
jobs throughout the Administration. This hearing will give both 
nominees the opportunity to outline their skills and expertise 
for these two highly prominent labor positions.
    The committee has received a letter of support for Mr. 
Radzely from the Sergeants Benevolent Association of New York 
City, which is the police labor organization, representing over 
10,000 active and retired New York City police sergeants. And I 
request that this letter be made a part of the hearing record.
    The Chairman. It'll be so included.

    [Editor's Note: The information previously referred to may 
be found in Additional Material.]

    Senator Enzi. Again, thank you for holding this hearing, 
and I look forward to the hearing with the nominees as they 
present their qualifications before the committee.
    The Chairman. Thank you very much.
    Senator Murray, who's the chairman of our subcommittee, 
intended to be here, but was unable to. They're in a 
conference.
    Senator Brown will be representing, and we'd welcome it, if 
you wanted to make a brief comment.

                   Opening Statement of Senator Brown

    Senator Brown. Thank you, Mr. Chairman.
    In considering our nominees today, we have to do so in the 
context, I believe, that Senator Kennedy suggested, in the 
context of Department of Labor's overall performance over the 
past 7 years or so. As we've seen throughout this 
Administration, there's a trend of appointing officials who 
don't appear to believe in the laws that they're asked to 
protect, which seems to be the case, as we've seen, this week, 
with the Consumer Product Safety Commission.
    New and emerging challenges face the Nation's workforce, 
and how well the Federal Government helps workers meet these 
challenges will define our record generations from now. In my 
view, we're way behind in meeting these challenges.
    Particularly troubling to me are three areas. First is, as 
the chairman said, the record of hostility protecting overtime 
and wages. Since the Wage and Hour Division has been 
underfunded, it shouldn't be surprising that enforcement is 
failing, the actual number that the enforcement--enforcement of 
these provisions, is falling. The annual number of concluded 
wage-and-hour cases has declined 31 percent since 2001, while 
the number of complaints has remained the same. There have also 
been failures by the Administration to protect the rights of 
men and women rebuilding the Gulf Coast by suspending the 
prevailing wage laws under Davis-Bacon.
    Second, the Department has suspended OSHA enforcement after 
catastrophes, leaving workers without protections from serious 
hazards.
    And, third, the Department's attempts to weaken the Family 
Medical Leave Act. In an economy where inequality is rising, 
and middle-class families are struggling to get by, families 
often need two salaries just to afford life's necessities. 
Congress intended the Family Medical Leave Act to be used for 
unscheduled, intermittent needs of workers, yet this 
Administration has continually altered the treatment of 
intermittent leave under the Family Medical Leave Act.
    The list goes on and on, but I will not do that.
    What I'm interested in hearing from our nominees is not 
just why they believe they're qualified--and they are--I'd also 
like to know what attracts them to defending the rights and 
protections of hardworking men and women. I hope to determine 
from your answers this morning whether you will fight to 
advance the well-being of workers or to continue to undermine 
their well-being.
    I look forward to hearing from you today.
    Thank you, Mr. Chairman.
    The Chairman. We welcome Howard Radzely, who has served at 
the Department of Labor since 2001, as Deputy Solicitor of 
Labor, Solicitor of Labor, and currently as Acting Deputy 
Secretary of Labor. Prior to his time in public service, he was 
in private practice with Wiley, Rein & Fielding, a labor and 
employment law firm here in Washington. Mr. Radzely holds an 
undergraduate degree from the University of Pennsylvania's 
Wharton School of Business, law degree from Harvard. He is 
joined today by his wife, Lisa, his young sons, Brendan and 
Devin, and his parents, Ed and Jackie Radzely, and his mother-
in-law, Janet Burton.
    I believe Brendan was here the last time at your 
confirmation. I believe that was 5 years ago. And if our 
records are correct, I commented on what a patient and well-
behaved young man he was----
    [Laughter.]
    The Chairman. [continuing]. Being able to last through 
these hearings. So, we welcome him back. I'm sure we'll have as 
successful a hearing today, as well, as then. But we're glad 
that you have the members of your family with you.
    Gregory Jacob has recently served as Special Assistant to 
the President for Domestic Policy. Prior to joining the White 
House, Mr. Jacob served as the Deputy Solicitor of Labor, as an 
attorney in the Office of Legal Counsel, Department of Justice; 
he received a bachelor of arts from Amherst College, and a law 
degree from the University of Chicago. He is joined here today 
by his parents, Fred and Debbie Jacob, and his brother, Scott. 
Today's a family affair.
    Mr. Radzely, we look forward to hearing from you.

STATEMENT OF HOWARD RADZELY, OF MARYLAND, NOMINEE TO BE DEPUTY 
          SECRETARY OF LABOR, U.S. DEPARTMENT OF LABOR

    Mr. Radzely. Thank you, Mr. Chairman, Senator Enzi, and 
distinguished members of the committee. It is an honor to 
appear before you today as you consider my nomination to be the 
Deputy Secretary of Labor.
    At the outset, I would like to express my gratitude to the 
President of the United States for nominating me for this 
position, and to the Secretary of Labor, Elaine L. Chao, for 
the support and confidence she has demonstrated in recommending 
me for this position.
    I would also like to thank the committee for considering my 
nomination and holding this hearing today during this very busy 
time.
    Finally, I would like to thank my wife, Lisa, my 7-year-old 
son Brendan, and my 3-year-old son Devin, who are with me 
today, for all the sacrifices they have made to allow me to 
serve in the government for the past nearly 6\1/2\ years, and 
for the sacrifices they will make if I am confirmed to be the 
Deputy Secretary of Labor.
    The Department of Labor arguably has one of the broadest 
reaches of any domestic department and handles issues of 
importance to nearly every American, from youth to retiree. The 
Department regulates a workforce of over 150 million workers, 
and oversees programs for Americans who are hoping to acquire 
additional skills and education to either further or change 
their careers. The Department enforces statutes and regulations 
ranging from child labor protections to provisions that protect 
American workers, retirement security, and everything in 
between.
    I see the Department of Labor as having one of the most 
important missions in the Federal Government. The Department 
has an extremely critical task to help prepare the workforce 
for the challenges of the 21st century. Through the Employment 
and Training Administration, the Veterans Employment and 
Training Service, the Office of Disability Employment Policy, 
the Women's Bureau, and Job Corps, DOL provides programs and 
assistance to help Americans obtain the skills needed to 
succeed in today's economy.
    For those already employed, the Department has enforcement 
functions in a wide range of areas to help protect workers. 
Among the Department's many important tasks are enforcing 
health and safety laws, wage and hour laws, the Family Medical 
and Leave Act, Executive Order 11246, the Employee Retirement 
Income Security Act, numerous whistleblower laws, the Labor 
Management Reporting and Disclosure Act, and the Uniform 
Services Employment and Re-Employment Rights Act.
    The Department also has a number of critical additional 
tasks carried out by agencies such as the Office of Workers 
Compensation Programs, the Bureau of Labor Statistics, and the 
Bureau of International Labor Affairs.
    Since coming to the Department of Labor, in June 2001, and 
serving as Deputy Solicitor, Acting Solicitor, and Solicitor, I 
have worked with the dedicated career attorneys in the 
Solicitor's Office to use the Department's resources and 
enforcement tools effectively. Since becoming designated Acting 
Deputy Secretary earlier this year, I have had the opportunity 
to work on many important issues in a new capacity.
    If confirmed as Deputy Secretary, I would function largely 
as the chief operating officer of the Department. I am prepared 
to help the Department advance its important mission in a new 
role. I am eager to continue working with the career 
professionals at the Department on management, program, and 
regulatory initiatives to serve American workers.
    I am also committed to seeing that the Department 
implements in a timely manner the new laws for which the 
Department has responsibility, including the Pension Protection 
Act and the MINER Act, both enacted into law last year. Many of 
the requirements of these new statutes have already been 
implemented, and the Department is preparing to complete a 
number of additional critical tasks over the coming months.
    In sum, as Acting Deputy Secretary, and if confirmed as 
Deputy Secretary, I understand and appreciate the great 
responsibility I bear. Thank you, again, for considering my 
nomination, and I would be happy to answer any questions that 
you may have.
    The Chairman. Fine.
    Mr. Jacob.

   STATEMENT OF GREGORY JACOB, OF NEW JERSEY, NOMINEE TO BE 
          SOLICITOR OF LABOR, U.S. DEPARTMENT OF LABOR

    Mr. Jacob. Thank you, Mr. Chairman.
    Mr. Chairman, Senator Enzi, and distinguished members of 
the committee, it is an honor to appear before you today as you 
consider my nomination to be Solicitor of Labor. I am eager to 
get to work enforcing the Nation's labor and employment laws on 
behalf of the job seekers, wager earners, and retirees of the 
United States, and I am deeply grateful for the committee's 
expeditious scheduling of today's hearing.
    I want to thank the President of the United States for 
nominating me for the position, and Secretary Elaine L. Chao 
for the confidence she has shown in me by recommending me for 
the position.
    Finally, I want to thank the family members and friends who 
are here supporting me today.
    I have been blessed, in my career as an attorney, with 
diverse experiences that have been both challenging and 
rewarding. After a time in private practice, I decided to 
embark upon a career of public service. My first position with 
the Federal Government was as a career attorney in the Justice 
Department's Office of Legal Counsel. My first day was the 
Monday after September 11. I remember thinking that morning, as 
I walked through the Department's massive front doors on 
Pennsylvania Avenue, that, at a time when the entire Nation was 
hurting and every citizen was looking for a chance to 
contribute, I had been given a rare and awesome opportunity, 
but also entrusted with a heavy responsibility, to fairly and 
faithfully administer the law, and to advise other Federal 
agencies on how to do the same.
    I later served as Deputy Solicitor at the Department of 
Labor, a position that expanded my legal horizons, not only to 
the management of an office of more than 425 attorneys and 
nearly 600 employees, but also to the application and 
enforcement of a body of laws that touch and affect the lives 
of virtually every worker in America.
    Most recently, I served at the White House as Special 
Assistant to the President for Domestic Policy, with a 
portfolio that included justice and immigration issues. During 
the recent immigration debate in Congress, I got to spend a lot 
of time here at the Dirksen building and over at the Capitol, 
and had the pleasure of getting to know many members of your 
staffs.
    As a government official, I believe it is important to stay 
directly in touch with the impact that government policy has on 
ordinary citizens. Accordingly, while serving in each of the 
positions I have held with the Federal Government, I have 
simultaneously been involved in one or more cases outside the 
government on a pro bono basis. I entered each of these cases 
through the auspices of Justice for Children, a nonprofit 
organization that seeks to provide legal representation to 
protect children who are the victims of physical or sexual 
abuse. This work, which has been among the most meaningful of 
my career, has kept me actively involved in both trial and 
appellate litigation, and has given me the opportunity to 
personally get to know some truly courageous individuals, 
parents who persevere through every difficulty and frustration 
to protect their children from the horrible specter of abuse, 
and men and women who have dedicated their lives to providing 
those families the support and resources they need to succeed.
    In addition to my work experience, I have tried to remain 
academically engaged, as well. I have written one law journal 
article each year for the last 5 years, and, since early 2002, 
I have served as editor and then senior editor for the law 
journal The Green Bag.
    I believe my tripartite career of public service, regular 
pro bono representation, and scholarly endeavor has prepared me 
well for the challenges of running the Solicitor's Office. I 
like to think of the Office of the Solicitor as the Labor 
Department's muscle on the ground, playing a critical role in 
helping the Department fulfill its mission to foster and 
promote the welfare of the job seekers, wage earners, and 
retirees of the United States.
    Inspectors and investigators alone cannot secure full 
compliance with the law. If workers are to truly enjoy the 
rights and protections Congress has established for them, the 
Department's enforcement agencies must be backed by active and 
dedicated lawyers who stand ready to prosecute violators.
    Every area of law that the Solicitor's Office enforces is 
important. Nevertheless, there are some enforcement areas that, 
if confirmed, I would make particular priorities:
    Wage and hour enforcement in low-wage industries, such as 
poultry and agriculture, where workers tend to be least able to 
defend their statutory rights, has long been an enforcement 
priority for the Department, and I would continue that 
emphasis.
    Recent tragedies have highlighted the incredible importance 
of enforcing safety and health laws, where the very lives of 
workers are at stake.
    In the area of Federal contract compliance, I believe it is 
critical that the Solicitor's Office expand on its record 
recoveries by continuing to bring cases against those who fail 
to comply with the law and maintain deterrence through vigorous 
enforcement. Aggressive USERRA enforcement is particularly 
important, in light of the continued deployment of our troops 
abroad.
    The reach of the Solicitor's Office is co-extensive with 
that of the Department, and its work must be excellent in every 
area that it touches. No single attorney can be an expert in 
all the areas of law that fall within the purview of the 
Office, but I believe my broad experience as Deputy Solicitor, 
assisting in the enforcement of virtually all the areas of law 
entrusted to the Department, combined with my respect for, and 
good working relationships with, the Department's knowledgeable 
and seasoned career attorneys, have prepared me well to serve 
as Solicitor of Labor. If confirmed, I am confident that my 
background will allow me to hit the ground running in fairly 
and vigorously enforcing the Nation's labor and employment 
laws.
    Thank you, again, for considering my nomination.
    The Chairman. Thank you very much.
    We recognize--Senator Enzi has some questions, and also 
some schedule conflicts, and so, we'd welcome his questions at 
this time.
    Senator Enzi. Mr. Chairman, I thank you so much for the 
courtesy. I have to help solve a couple of other problems, but, 
I'm so pleased that both of you are willing to do this.
    Mr. Jacob, that was a tremendous mission statement that you 
just presented, and I look forward to watching you fulfill 
that. I particularly like the phrase that you will be the 
``muscle on the ground.'' That's good.
    For both of you, I have a question. This committee is 
rightfully proud of both the MINER Act and the Pension 
Protection Act that we did last year. I mentioned that the 
MINER Act was the first major change in mining law in 28 years. 
And, normally, major changes around here only take 6 years. And 
this committee happened to do it in 6 weeks, and it passed both 
houses unanimously, and we're very interested in providing the 
oversight on that and to make sure that, if there are any 
additions that need to be done, that we can do them. But part 
of the critical part of that is the enforcement. And I'd like 
to know what each of your personal experience has been with the 
Mine Safety and Health Act and with ERISA, and would like to 
know what you think the Deputy Secretary and the Solicitor 
should be doing to ensure these laws are enacted in a timely 
and effective manner, and also, what other priorities that you 
plan to be focusing on for the next 2 years.
    Mr. Radzely.
    Mr. Radzely. Thank you. I appreciate the opportunity to 
address that.
    I've had a lot of experience with ERISA, in general, during 
my time in the Solicitor's Office. And, actually, one of the 
things that I focused on, Senator, during my time, was a series 
of amicus briefs on remedies under ERISA. We noticed a 
disturbing trend of attempts to limit the remedies under ERISA. 
And so, we have filed numerous amicus briefs on behalf of 
former participants, arguing that they have standing to be able 
to sue in court. We've also filed briefs arguing that the 
phrase ``appropriate equitable relief'' under the act includes 
money--monetary recoveries against breaching fiduciaries--and 
another area where some have argued that, if you don't sue on 
behalf of every person in a plan, you don't have a right to 
sue, so we argued that individuals or groups can sue on behalf 
of the plan, even if not everyone was affected by the 
particular violation. So, I've spent a lot of time in various 
areas of ERISA enforcement, but that's one particular area. 
And, as Deputy Secretary and as Acting Deputy Secretary, I 
have, and I will, if confirmed, work with the Employee Benefits 
Security Administration to help see that they timely implement 
the many regulations that are required as a result of the 
reforms Congress passed and the President signed last year.
    In terms of the MINER Act, I've worked closely, while I was 
in the Solicitor's Office, with the career professionals in the 
division that handles mine safety legal work in the Solicitor's 
Office. We started, for example, last year a scofflaw 
initiative, in an attempt to go after companies and/or 
individuals that hadn't paid their fines. And so, I've had a 
lot of experience working on the Mine Safety Act, and, as 
Acting Deputy Secretary, and, if confirmed, as Deputy 
Secretary, will work with MSHA to ensure that they implement in 
a timely fashion all of the provisions of the MINER Act.
    Senator Enzi. Thank you.
    Mr. Jacob.
    Mr. Jacob. Thank you, Senator.
    As Deputy Solicitor, I was involved in enforcement 
activities with respect to both enforcement of the Mine Act and 
enforcement of ERISA and the activities of the Employment 
Benefit Safety Administration.
    With respect to the Mine Act, I reviewed a number of briefs 
and helped to make sure that the Department was making the most 
effective enforcement arguments possible to ensure that our 
views of the law were being upheld. I have to say, with respect 
to the MINER Act, which Congress passed last year, in reading 
some of the early briefs, I thought it was a typo, what the 
penalty levels were, and I know that the MINER Act has 
increased those penalty levels. I think that's appropriate and 
will help the Department ensure that it's protecting workers 
adequately.
    Now, with respect to ERISA, part of the problem with being 
Howard's deputy during that time is, there's something known as 
``me too'' to the amicus program. I did a lot of work with 
appellate briefs during my time there, and worked on ensuring 
that workers who were plan participants were able to recover 
their rights, even if not the entire plan was affected by a 
fiduciary breach, and also ensuring that they were able to 
recover losses as equitable relief. And so, both of those 
issues are now before the U.S. Supreme Court, in the LaRue case 
and I believe that the U.S. Supreme Court will ensure that the 
Department's views are upheld in favor of the Department's 
ability to effectively enforce the law.
    Thank you.
    Senator Enzi. Thank you. And my time is expired here. I 
have several other questions, and I would ask to be able to 
submit those, and would ask for your speedy answers.
    The Chairman. Fine.
    Senator Enzi. Thank you, Mr. Chairman----
    The Chairman. Thank you.
    Senator Enzi [continuing]. For your courtesy.
    The Chairman. Good. Thank you. Thank you very much, Senator 
Enzi.
    I want to direct your attention to the issues on wage and 
hour overtime. And I'm going to put a couple of charts up here 
that kind of summarize a bit about where we find ourselves.
    This is the enforcement of wage and hour laws. This is from 
2002, number of wage and hour investigators has declined rather 
dramatically. This is some 25 percent from 2002 through 2007.
    Then, if you look at another indicator on this, you'll find 
out that employers don't face the real penalties for violating 
the wage and hour laws. Lawbreaking employers are facing fewer 
penalties for violating workers' rights. Civil penalties are 
down some 25 percent from 2001 to 2006.
    And then, Department of Labor enforcement efforts in low-
wage industries are inadequate. These are the garment, 
agriculture, and healthcare industries. From 2001, in the 
garment, agriculture, and health--you'll see the number of 
completed cases declined significantly under this 
Administration's watch. This is all data from the Department of 
Labor.
    The annual number of completed wage and hour cases--as I 
mentioned, declined 31 percent, while the number of complaints 
filed has remained about the same. As we mentioned, the trends 
are even starker in the low-wage industries. I appreciate Mr. 
Jacob indicating this is going to be a priority of his. While 
DOL claims to spend 60 percent of its enforcement hours at low-
wage industries, according to DOL's own data there's been a 68-
percent decline in completed cases in the garment industry, 39 
in agriculture, 32 in the health industry. So, we have every 
reason to believe that there's still rampant lawbreaking that 
persists in these industries. The Brennan Center, for example, 
in its recent study, examined 13 low-wage industries in New 
York City, found systematic patterns of lawbreaking, including 
wage theft, overtime violations, and forcing employees to work 
off-the-clock.
    So, Mr. Radzely, how do you explain the disturbing decline 
in the number of wage and hour cases completed by the 
Department? And what do you plan to do, if anything, to reverse 
the decline?
    Mr. Radzely. Mr. Chairman, I appreciate that.
    In terms of low-wage industries, I think one of the things 
Wage and Hour is doing, and plans to do in the coming year, is 
expand the number of low-wage industries that they looked at. I 
think previously the focus has been in three areas: ag, 
healthcare, and garment. And one of the things I believe Wage 
and Hour is doing is trying to expand and broaden the 
industries into other ones, like daycare, restaurants, guard 
services, hotel and motel, janitorial services, temporary help, 
other low-wage industries, where we tend to find violations. 
And, in fact, in fiscal year 2006 the back wages collected in 
these low-wage industries, combined, increased by 10 percent. 
This is going to continue to be a focus for myself and for the 
Department.
    The Chairman. Well, it's difficult for us to put this into 
some proportion when we see what the record has been in recent 
time. During the Clinton administration, the Department 
conducted extensive surveys to determine the level of Fair 
Labor Standards Act compliance in selected industries with 
changing workforce demographics or the poor enforcement 
history. They did surveys with the industries.
    Now, under your Administration, under the current 
Administration, the Department has discontinued these surveys. 
So, if confirmed, are you going to commit to re-instituting the 
industry compliance surveys, where there's at least evidence 
that existing enforcement efforts aren't working?
    Mr. Radzely. Mr. Chairman, I'm not familiar with what 
industry surveys Wage and Hour does now, but I would certainly 
be happy, as Acting Deputy Secretary, and, if confirmed, to 
look into that and get back to the committee.
    The Chairman. I don't know what the reasons were when they 
dropped that in the Department, but it was an attempt to try 
and do the surveys for these different industries so that they 
could be prioritized, and they dropped it, and then, we see a 
corresponding reduction, in terms of the compliance in these 
other areas. So, if you'll take a look at that, I'd be 
interested in your view.
    The Chairman. Mr. Jacob, what do you believe are the 
reasons behind the decline in the number of actions completed 
by the Department? And, if confirmed, what steps would you take 
to increase the Department's enforcement efforts?
    Mr. Jacob. Mr. Chairman, as I mentioned in my opening 
statement, I believe that vigorous enforcement in this area of 
low-wage industries is absolutely essential. We're talking 
about workers who work in these industries who aren't always 
well apprised of what their legal rights are, and it's 
particularly appropriate for the Department to step in, in 
those cases, and ensure that it is making sure that their 
rights are fully protected.
    I certainly will consult with the administrator of the Wage 
and Hour Division to see how the cases are being handled at 
this time. My goal, certainly, as Solicitor, would be to take 
every case that was referred to us by the Wage and Hour 
Division that was well supported, and ensure that we provided 
all of the legal support necessary to ensure that the rights of 
workers were protected.
    Thank you.
    The Chairman. But, do you have any kind of reaction, when 
you see these kinds of figures by the Department? And give us 
any understanding of why this kind of trend--we've listened to 
your statements and comments about what you're going to do in 
the future, but we're asking about these trends that we have 
seen in the recent time by the Department, and we're trying to 
find out how we should evaluate your own performance against 
the background of these indicators. What kind of confidence can 
we have, in the future, that you're going to be able to, or 
willing to, see the kind of protections which I think the law 
requires and that we expect?
    Mr. Jacob. Mr. Chairman, I know that the Department, last 
year in the area of low-wage industries, had record recoveries 
of about $50 million, which was up about 50 percent from 2001. 
So, I know that we are making sure that, with respect to those 
cases that are referred to us in the Solicitor's Office, that 
we're doing everything that we can with them to secure the 
fullest recovery we can on behalf of those workers.
    I know that the Department has expanded its focus within 
low-wage industries, from beyond the traditional agriculture/
healthcare sectors, to now include daycare, restaurants, and 
others. So, whether that has affected the number of cases 
within each particular industry as we've expanded the number of 
industries we've focused on, I'm not entirely certain, but it's 
certainly something that I would be happy to look into and 
report back to the committee.
    The Chairman. OK. I'm going to recognize Senator Brown and 
come back to this. He has to preside over the Senate in a very 
short time. So, we thank him, he's very involved in the 
protection of workers. And we're----
    Senator Brown. Thank you, Mr. Chairman.
    The Chairman [continuing]. Very appreciative of all of his 
good efforts in this area.
    Senator Brown. Thank you, Mr. Chairman.
    I mean, I want to support both of you. I am troubled, 
though, by the history of the Labor Department the last 5 
years. There's a chart that--Mr. Jacob, you said that you want 
to continue this to be a priority enforcement, but how can 
you--when the budget of Wage and Hour in the last--the 
President's proposed budget for this year, compared to the 2001 
levels, the Wage and Hour's gone down 1 percent; OSHA 
enforcement, down 5 percent; and OLMS, which includes the work 
you do on the LM-30, which I want to get to in a moment, has 
gone up 52 percent. How can you even--I mean, convince me that 
it has been a priority. You made the statement you want to 
continue it being a priority. Just convince me of that, both of 
you, that when budget figures speak so loudly to priorities, we 
increase money for the war on terrorism, because we all agree 
that's something we need to do. Many of us want to increase 
money for children's health, because we believe in children's 
health. What are those--don't those budget figures speak pretty 
loudly? Why should I be convinced that you really do want to 
enforce Wage and Hour and OSHA and move in that direction?
    Mr. Radzely. Senator, I see the chart, but I'm not familiar 
with where you're getting those numbers from, because my 
understanding was the Department saw increases in, not only 
OLMS, but also in Wage and Hour and OSHA, and, I believe, in 
this year's budget has sought an increase for additional Wage 
and Hour inspectors, as well. So, my understanding is, the 
Department has----
    Senator Brown. This is----
    Mr. Radzely [continuing]. Sought----
    Senator Brown. I'm sorry to interrupt, but I only have 5 
minutes. I apologize. It's possible that the President 
increased its budget this year, but it's been in context of 
having cut the budget over the last 5 years. So, if, in fact, 
there is now more of an interest than before, there isn't much 
more of one, because it's still been a decrease in the budget 
over the last 7 years, when the Labor Department's entire 
budget has obviously gone up. OLMS has jumped by half, and two 
of the most important functions of this agency, the agency that 
you want to continue to be part of under Elaine Chao, who makes 
these requests--I don't know if it's her priorities or the 
President's priorities or your priorities, but they don't speak 
very loudly about your really wanting to protect workers.
    Mr. Radzely. If I can make two points, I do believe that 
the actual money the President requested this year is 
significantly over the amount in 2001, but I'd be happy to look 
into that.
    Senator Brown. These are----
    Mr. Radzely. But----
    Senator Brown. These are inflation-adjusted, so, they're in 
real dollars.
    Mr. Radzely. OK.
    Senator Brown. So----
    Mr. Radzely. And I----
    Senator Brown. But, either way, you look at the huge 
difference there----
    Mr. Radzely. I think, a couple of things. When I was in the 
Solicitor's Office, I did not hesitate to ask for additional 
resources. And, in fact, I think we would have had additional 
resources in the Solicitor's Office last year, but for the 
year-long CR. And, again, this year there's a significant 
increase in requests in the Solicitor's Office to help 
enforcement, because, in any enforcement program, it's critical 
that you have lawyers to back up the inspectors and bring the 
cases that are contested.
    In addition, I think the reason the OLMS figure is so large 
is that the budget had been significantly cut. I think they 
were down by hundreds of employees from what they had 
previously been, to the point where there had not been, I 
think, a single audit of a large union.
    But, I want to be clear, my priorities are that every 
program the Department has is important and needs to be 
vigorously enforced. And, I think, while I was Solicitor of 
Labor we took a number of steps in each of the program areas, 
including OSHA and Wage and Hour, which demonstrates my 
commitment to that.
    Senator Brown. I am not in any way personally questioning 
the motives of either of you. I do question the philosophy of 
your boss, whichever of your bosses--I mean, whether it's the 
President or whether it's Secretary Chao, and the direction 
which they take.
    So, let me just shift, for the last question. What's the 
impetus behind the LM-30 changes? A question for either of you.
    Mr. Radzely. I think OLMS took a look at their forms, and 
started by looking at the LM-2, which hadn't been updated, I 
think, in some 40 years or so--and, similarly with the LM-30--
that it was a confusing form, relatively few people filed it, 
OLMS worked with, I believe it was, the AFL-CIO to get 
individuals to file it under a grace period. And I think their 
experience was that it was a confusing form, it didn't provide 
useful information, it was difficult to fill out, and that OLMS 
wanted to revise the form to provide meaningful information to 
union members so they can exercise their rights under----
    Senator Brown. So----
    Mr. Radzely [continuing]. The law.
    Senator Brown [continuing]. A ``confusing form'' would lead 
me to think you would want to shorten it. The form now has gone 
from 2 pages to 9 pages; instructions, from 9 pages to 17 
pages. Does that connote clarity?
    Mr. Radzely. I believe it does. I think a lot of the 
transactions, even folks who filed it--and I think there are 
about 100 filings a year, before the grace period, and many of 
them had trouble filing them. I think there were a number of 
instances where they were filed wrong. And these are people 
that obviously were trying to comply with the law. So, I think 
OLMS felt the need to make the form clear, but also to provide 
meaningful information in the 21st century economy, with a 
sophistication of transactions, to enable union members to 
exercise their rights under the act.
    Senator Brown. Newt Gingrich, back in 1992, asked for a 
similar--I know it's ancient history, but he sent a memo to the 
last Republican administration's Department of Labor chair 
calling for more audits and more--some of us would say 
``harassment,'' and others could say ``oversight''--of these 
mostly volunteer or not well-paid union officials. He said, 
``We should weaken our opponents and encourage our allies.'' I 
just find it curious that this is an Administration that does 
no oversight and no recordkeeping and no auditing, or very 
little, of contractors spending billions of dollars in Iraq, 
and then you put this kind of effort into disclosing mortgages 
and car payments and all the information that volunteer union 
activists have to disclose about their financial lives. And I 
just find that--I mean, I know you're not in charge of auditing 
Blackwater or Halliburton or Bechtel or the hundreds of other 
companies that have squandered and lost billions--tens of 
billions of dollars in Iraq, but I just find the inconsistency 
curious, that this is the group you want to go after in the 
Department of Labor, especially when they're volunteers, to 
disclose all of this financial information.
    Mr. Radzely. Senator, I think OLMS tried to balance the 
need for information against the burden on union officials; and 
so, for example, increased the de minimis exemption to $250. 
But I will say, as I indicated earlier--and Secretary Chao 
feels the same way--each of the laws within our jurisdiction 
needs to be vigorously enforced, and we've taken similar 
vigorous enforcement efforts, for example, under ERISA, which 
is probably the closest compare there to OLMS and the 
Department of Labor, and had record recoveries there in recent 
years.
    Senator Brown. OK. Thank you very much, Mr. Radzely.
    The Chairman. Thank you very much, Senator Brown.
    Just to come back, Mr. Jacob, on the issue of the back pay 
and the indication of the recovery of the back pay, which you 
mentioned has increased over the period of these last few 
years, I think that's understood, and certainly valuable and 
useful. But, when the Department, as has been reported, settles 
easy cases quickly, that's not really deterring the employers 
from violating the law. So, it's critical to remember that the 
back pay is just giving workers what they were owed in the 
first place, it's not really punishing the employers for 
breaking the law. And, when you look at the monetary penalties 
assessed by the Wage and the Hour Division, that number 
actually decreased substantially last year. Do you know why 
that was?
    Mr. Jacob. Mr. Chairman, I do not know why there was a 
decrease, but it is certainly something that I would look into. 
I think that it is important that the Solicitor's Office use 
all of the tools in its arsenal to defend the rights of 
workers, including not just recovery of back pay, but also 
civil monetary penalties, where that's appropriate. And I would 
commit to assessing that in every case----
    The Chairman. All right.
    Mr. Jacob [continuing]. That is brought to my attention.
    The Chairman. Let me go through some other particular 
areas. One, tip workers. Mr. Radzely, while you were serving as 
the Solicitor, were there any efforts to improve enforcement of 
wage and hour laws among restaurant workers? Has the Department 
undertaken any special initiatives to educate workers in this 
industry about their rights? We know, from the recent study in 
New York City, almost 60 percent of tip workers are reported of 
being a victim of overtime pay violations. In a series of 
articles, the New York Times recently reported even more 
appalling abuses: restaurant delivery workers being paid as 
little as $1.40 an hour, far less than the Federal minimum 
wage.
    Mr. Radzely. Senator, yes, the Department is focused on the 
restaurant industry. In fact, I think, the largest industry in 
which we do low-wage-directed cases or do low-wage cases--I 
believe most of them are restaurants. In fact, out of the some 
11,000 cases in the last fiscal year, some 4,300-plus were 
actually in the restaurant industry. So, this is a focus of 
Wage and Hour, and I would expect it to continue to be a focus 
of Wage and Hour and its low-wage-industry effort in the coming 
year.
    The Chairman. Mr. Jacobs, if you're confirmed as the 
Solicitor General, Labor, what steps would you take to improve 
the enforcement of the wage-and-hour tipped employees? Would 
you address the unique enforcement challenges facing that 
population, which is particularly vulnerable?
    Mr. Jacob. Mr. Chairman, I would. I believe that it's a 
particularly important area to ensure that we are vigorously 
enforcing, and I would certainly consult with the career 
attorneys in the office and with the administrator of the Wage 
and Hour Division to determine the most effective way to 
address the issues that you've raised.
    The Chairman. Let me move to the safety and health issues 
that we've had. In the aftermath of 9/11, Hurricane Katrina, 
brave Americans answered the call to help fellow citizens. 
These workers face serious risks to their health. The New York 
City firefighters, the police officials, construction workers 
were immersed in the clouds of hazardous dust and debris. Gulf 
Coast reconstruction workers faced a new toxic stew of mold and 
asbestos. After both disasters, the Bush administration 
suspended OSHA enforcement--for approximately 9 months at 
ground zero, and almost a year in New Orleans. Workers are now 
paying a high price for the Administration's neglect. Tens of 
thousands of ground zero workers have terrible respiratory and 
gastrointestinal issues which could have been prevented, I 
believe, if OSHA had enforced its standards, requiring personal 
protective equipment, like respirators. We've heard no such 
problems in California, where thousands of firefighters 
recently battled the terrible wildfires.
    Time is enormously important, in terms of these disasters. 
I mean, 1 or 2 days, or 3 days, understandable, but 8 or 9 
months--does that make sense, when we're facing these kinds of 
tragic circumstances, whether it is ground zero or whether it's 
New Orleans, whether it is other kinds of disasters?
    Mr. Radzely. Mr. Chairman, my understanding is, they did 
not suspend enforcement, but they suspended directed 
investigations. So, if there were complaint investigations and 
were there any fatalities in the affected zone, OSHA would, and 
I believe did, go out and investigate those, if there were any. 
However, what they were focused on is making sure that the 
workers had the protective equipment and were trained in using 
it. In the case of ground zero, many of the workers, in fact, 
were not within OSHA's jurisdiction, because they were local or 
State workers, and they would have been workers that would not 
have been within OSHA's jurisdiction to take enforcement 
action, in terms of a directed investigation.
    The Chairman. Well, there were still the suspension of the 
requirements. In my understanding, New York City officials 
repeatedly asked regional OSHA officials to enforce the 
respirator standard, because they were concerned about workers' 
health. I thought the New York officials made the argument to 
OSHA that only the fear of citations would motivate employers 
to make sure that workers had respirators. And that was one of 
the powerful examples.
    It seems to me that, in these kinds of circumstances, the 
workers who are most vulnerable and--disaster workers are the 
most vulnerable, they need the greatest kinds of protections, 
rather than the suspension of the protections. What is your 
view? I mean, generally speaking.
    Mr. Radzely. Mr. Chairman, I think the Department should do 
everything it can in those situations to protect workers. And 
if that means devoting additional resources to working with 
employees, unions, employers cooperatively to make sure that 
they have the necessary expertise, in terms of working in a 
very dangerous situation, both in terms of possible 
respirators, but many other types of potential injuries and 
illnesses, which, my understanding was, were avoided after 9/
11, despite the significant dangers to workers, of slipping, 
falling, you know, possibly getting killed in the recovery 
effort. But I think there needs to be a balance, and I think 
the tradition in OSHA has been to focus on complaint and 
fatality inspections, while working with the first responders, 
and not doing directed investigations during that period of 
time.
    The Chairman. Well, it seems that it is particularly 
important that the Department enforce the OSHA standards, 
because, in times of crisis, the workers obviously can't 
enforce the law themselves.
    Let me ask you, Mr. Radzely, about the Department. Why did 
the Department deny the petition for an emergency temporary 
standard for pandemic flu?
    Mr. Radzely. Mr. Chairman, the Department denied the 
standard--emergency temporary standard for pandemic flu because 
the Acting Solicitor in the Solicitor's Office, determined that 
it did not meet the legal requirements for an emergency 
temporary standard. But the Department is, and has been for a 
number of years, taking steps to work and be prepared for a 
pandemic flu, should one hit. They have put out guidance to 
employers and employees on steps to take. We are currently 
working, and expect to release in the near future, a respirator 
stockpiling guideline. Numerous materials are available to 
assist employees and employers. And, as well, there are many 
standards that would come into play, should a pandemic hit--for 
example, the respirator standard and others--that could be 
used, and would be used by OSHA, were a pandemic flu to hit.
    The Chairman. Well, CDC actually recommended exposure 
controls, in addition to the use of respirators. And those 
other measures aren't covered by the OSHA's action, are they?
    Mr. Radzely. I'm not intimately familiar----
    The Chairman. OK.
    Mr. Radzely [continuing]. With the CDC standards.
    The Chairman. Also, why is the Department taking so long to 
issue the specific standard against TB in the workplace. Do you 
know why?
    Mr. Radzely. As I recall, Senator, the Department does have 
an enforcement program in TB, and has issued a number of 
citations, I believe, under the general duty clause, but I'd be 
happy to look into that----
    The Chairman. Yes, please.
    Mr. Radzely [continuing]. And get back to you.
    The Chairman. Also, about diacetyl, why did the Department 
deny the petition for a temporary standard for that, do you 
know?
    Mr. Radzely. Mr. Chairman, I think, for similar reasons, 
that it did not meet the legal test for an emergency temporary 
standard. But the Department is taking a number of actions on 
diacetyl, as well. In addition to issuing a safety and health 
information bulletin, engaging on a national emphasis program, 
the Department also recently announced that it was engaging in 
rulemaking on the issue, and had a stakeholder meeting, I 
believe it was last month or the month before, to begin the 
process.
    The Chairman. Yes. I think the point that is of enormous 
concern to the American people--that is, if the pandemic flu 
isn't a potential emergency, what is?
    Mr. Radzely. Senator, we believe it's a potential 
emergency, and we are taking steps to be very proactive. In 
fact, I led a tabletop exercise at the Department just recently 
to test our preparedness and what we needed to work on and to 
improve. So, we are taking numerous steps to be prepared for a 
pandemic flu, should one hit.
    The Chairman. Well, the question is, will it be too late to 
issue the standard? Is there any evidence that employers are 
voluntarily complying with any standards now on pandemic flu?
    Mr. Radzely. The entire Administration is focused on 
working on this issue, and we are working with outside groups, 
in terms of, as I said, stockpiling respirators, as well as 
providing numerous materials to guide them on steps to take 
now, rather than waiting until a pandemic flu hits.
    The Chairman. What about the protections for workers and 
first responders? We have some biologic or chemical kind of--I 
mean, if we have some kind of an attack--what are we doing to 
make sure that workers that we're going to send out as the 
first responders are going to have the kind of protections that 
they're going to need?
    Mr. Radzely. Again, I think, depending on what the hazard 
is, an assessment will have to be made about what is necessary 
to protect the workers, and OSHA will work with the affected 
first responders, State agencies, etc, to respond to any such 
incident.
    The Chairman. What do you have, in effect, now to protect 
those workers? Would you have any regulations or rules to 
protect them now?
    Mr. Radzely. Senator, there are numerous rules and 
regulations that would apply, depending upon what the situation 
is, from the respirator standard to hazardous communication, 
etc. I think it would depend upon the particular disaster that 
the first responders were responding to.
    The Chairman. On ergonomics, it's obviously, a very 
important worker safety problem in America today, that affects 
hundreds of thousands of workers every year. After the 
regulations were withdrawn, the Department of Labor announced 
that it would issue voluntary industry-specific guidelines to 
help employers prevent ergonomic injuries, but, since that 
time, the Department has only completed three sets of 
guidelines, covering only 5.3 million workers. The original 
regulations would have covered over 100 million workers. So, 5 
years have passed, Mr. Radzely--they've passed since the 
Department announced its plan. Why has the Department finalized 
only 3 of the 16 guidelines it promised? If you are confirmed, 
will you commit to issuing the rest of the guidelines before 
the end of the Administration? And how can we expect employers 
to protect workers if the Department fails to even issue the 
voluntary guidance?
    Mr. Radzely. The Department's doing a number of things in 
the ergonomic area. First of all, the fourth guideline in 
shipyards is now out for public comment, or recently just 
finished public comment, and that will be finalized shortly. 
OSHA is now currently considering the next sets of guidelines 
that it wants to focus on. In addition, earlier this year, OSHA 
announced a policy of following up on the ergonomic hazard 
alert letters it issued, to see if the employers have taken the 
steps that were recommended in the letters; and, if not, we'll 
evaluate those particular employers for citation. The 
Department's overall approach to ergonomic injuries has 
resulted, I think--between 2002 and 2005--the ergonomic injury 
rate declined by 25 percent during this period.
    The Chairman. Well, how many general duty citations for 
ergonomic injuries have been issued over the last 2 years?
    Mr. Radzely. I believe, since the Department announced its 
policy, there have been 17, total, under the general duty 
clause.
    The Chairman. It's only 17 general duty citations total--
and only 8 in the 4 years, since you've been in, Mr. Radzely 
and none in the last 2 years. These are the figures that we 
have from 2001, 2002, 2003, 2004, and 2005. Your reaction, or 
your response, on it?
    Mr. Radzely. I think the ergonomic hazard alert letter 
follow up policy which OSHA is embarking on will likely lead 
them to evaluate a number of cases for possible citation and 
referral to the Solicitor's Office for litigation.
    The Chairman. But why hasn't OSHA still issued any 
citations this year, do you know?
    Mr. Radzely. Senator, I'm not aware, but I do know that 
they're focused on the hazard alert letter follow up policy, 
and that will be a big focus over the coming year.
    The Chairman. OK.
    On the issue of immigration--nice to see Mr. Jacob--I know, 
who has not forgotten about our days on immigration, and we'll 
be justified in the course of history. We have to take that 
satisfaction.
    [Laughter.]
    The Chairman. It's quite clear about what the law is in the 
circumstances where the undocumented, as I understand, are 
picked up, and where there's a labor dispute, that there has to 
be the resolution of the labor dispute. I think you're probably 
familiar with this recent case in Tennessee. If confirmed, Mr. 
Jacob, what steps would you take to ensure the violations of 
the labor law--discovered by ICE--are thoroughly investigated 
and pursued by the Department of Labor? And how can DOL and ICE 
effectively communicate about labor law violations without 
creating a disincentive for undocumented workers to report the 
violations?
    Mr. Jacob. Mr. Chairman, we have a memorandum of 
understanding with ICE, at this time, that allows us to consult 
about violation of the labor and employment laws that they may 
happen upon, so that we can take those into account, refer 
those to our enforcement agencies, and take appropriate 
enforcement action. Of course, we also need to make sure that 
we are not discouraging people from making reports of things. I 
know that one of the things the Solicitor's Office confronted 
when I was Deputy Solicitor was the--ICE using--pretending to 
be OSHA enforcement officers.
    The Chairman. Yes.
    Mr. Jacob. And we strongly objected to that, and we have 
worked with them to----
    The Chairman. Yes.
    Mr. Jacob [continuing]. That they, as a matter of policy, 
do not do that anymore. So, I will certainly commit to you, if 
confirmed as Solicitor, that I will continue to work with them 
to ensure that undocumented workers are not intimidated during 
the course of those investigations, so as to ensure that labor 
and employment violations can be brought to our attention 
freely so that we can enforce the law.
    The Chairman. OK. Has an agreement been reached between ICE 
and the Department to ensure that ICE officials can't pose as 
Wage and Hour inspectors or MSHA inspectors or other DOL staff?
    Mr. Jacob. Mr. Chairman, although I haven't been at the 
Department for the last year or so, it is my understanding that 
we do have such an agreement.
    The Chairman. All right. Would you find out and let us know 
about that?
    Mr. Jacob. Yes, Mr. Chairman.
    The Chairman. On the Uniform Service Employment and Re-
Employment Rights Act--we mentioned that in the earlier 
comment--it protects the men and women returning from the 
military service. With more than 500,000 members of the 
National Guard and Reserve mobilized since 9/11, record numbers 
of workers are facing potential discrimination when they 
return. Unfortunately, GAO reports that the agencies charged 
with enforcing USERRA, including the Department of Labor, have 
been ineffective in assisting our returning service members. 
For example, if DOL cannot resolve a Federal employee's claim, 
the employee can ask DOL to refer his case to the Office of 
Special Counsel for litigation, but GAO reports that, in half 
of such cases, DOL failed to notify servicemembers of these 
rights. In addition, over a year and a half DOL has referred 
only six cases to OSC, and DOL recommended litigation in only 
one case. Incredibly, their office took an average time of 247 
days to review and refer each of these six claims.
    So, Mr. Radzely, if confirmed, what actions will you take 
to improve the Department's enforcement of USERRA? And what, 
specifically, will you do to resolve these claims faster and 
ensure that servicemembers are informed of their rights?
    Mr. Radzely. Certainly, Mr. Chairman.
    The Department has embarked, over the last number of years, 
on an aggressive outreach program to inform returning 
servicemen and servicewomen of their rights. I'm not familiar 
with the GAO report you mention, but if the Department did fail 
to notify servicemen and servicewomen of their rights to have 
the case referred, that would certainly be something that needs 
to be swiftly rectified, if it already hasn't been. And 
servicemen and servicewomen need to know that. And we have 
recently, last year, signed an MOU with the Department of 
Justice, who handles the non-Federal cases, to more 
successfully bring those cases, and are working closely with 
the Office of Special Counsel, as well.
    The Chairman. So, Mr. Jacob, don't you agree, 8 months is 
far too long to review and refer the cases? And what'll you do, 
as Solicitor, to reduce these waits? And what'll you do to 
ensure the Department refers more cases for litigation?
    Mr. Jacob. Mr. Chairman, it is my understanding that the 
Department has already begun to look into this issue. 
Certainly, if I am confirmed as Solicitor, I will do everything 
I can to review the structure that exists right now, by which 
cases are referred to us, and to see whether there are things 
that we can do, from a management perspective, to ensure that 
those referrals are done more expeditiously. And if there are 
any places where we can trim that time down to make sure that 
people have their rights enforced as quickly as possible, I 
certainly believe that that's an important function for the 
Solicitor's Office to fulfill.
    The Chairman. I'm going to submit some questions to you, 
and hopefully we'll get early answers and get real resolutions 
for these, on your nominations.
    But, I want to thank you very, very much for your 
responses, congratulate you on the nominations, and thank you 
for your willingness to serve. And we will be in touch with you 
very soon, and we're grateful for your presence and for all of 
the service that you've given in the past.
    Thank you very much.
    The committee stands in recess.
    [Additional material follows.]

                          ADDITIONAL MATERIAL

                           Letters of Support
                  Sergeants Benevolent Association,
               Police Department, City of New York,
                                        New York, NY 10013,
                                                      May 31, 2007.
Hon. Edward M. Kennedy, Chairman,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC. 20510.

    Dear Chairman Kennedy: On behalf of the Sergeants Benevolent 
Association of New York City, a police labor organization representing 
over 10,000 active and retired New York City police sergeants, I am 
writing to respectfully request your favorable consideration of Howard 
Radzely's nomination to be Deputy Secretary of the U.S. Department of 
Labor.
    Mr. Radzely has impeccable qualifications for this important 
position. He graduated with honors from Harvard Law School and served 
as a law clerk on the U.S. Fourth Circuit Court of Appeals and the 
Supreme Court of the United States. Following his clerkship, Mr. 
Radzely practiced labor and employment law for several years at a 
highly-regarded Washington, DC. law firm before re-entering government 
service.
    During his tenure at the Department of Labor, Mr. Radzely played a 
central role in re-drafting the nation's overtime laws. This effort 
ensured overtime for many law enforcement officers in America and 
specifically clarified the overtime rights of many police sergeants. 
Mr. Radzely has also been aggressive in enforcing the overtime rights 
of all workers, including poultry workers and other low-wage workers.
    As Solicitor, Mr. Radzely also played a leading role in improving 
the Wage and Hour opinion letter process. He ensured that improvements 
to this process were not delayed by successive changes in leadership at 
the Wage and Hour Division of the Employment Standards Administration. 
His oversight of this process demonstrates the kind of managerial skill 
required to be a successful Deputy Secretary of Labor.
    The SBA has found Mr. Radzely to be an intelligent and hard working 
public servant worthy of the positions of trust he has held and 
deserving of confirmation to the position of Deputy Secretary of Labor.
            Very Respectfully,
                                                Ed Mullins,
                                                         President.
                                 ______
                                 
              National Fraternal Order of Police ,
                                     Washington, DC. 20002,
                                                  October 30, 2007.
Hon. Edward M. Kennedy, Chairman,
Hon. Michael B. Enzi, Ranking Member,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC. 20510.

    Dear Mr. Chairman and Senator Enzi: I am writing on behalf of the 
membership of the Fraternal Order of Police to advise you of our strong 
support for the nomination of Gregory F. Jacob to be the next Solicitor 
for the U.S. Department of Labor.
    Mr. Jacob holds degrees from Amherst College and the University of 
Chicago Law School, and served on the University of Chicago Law Review. 
Prior to serving as Deputy Solicitor of Labor, he served for 1 year as 
a judicial clerk for the Honorable Jacques L. Wiener, Jr. on the United 
States Court of Appeals for the Fifth Circuit. He also served for 2\1/
2\ years as an Attorney Advisor in the Office of Legal Counsel (OLC) at 
the U.S. Department of Justice. Mr. Jacob is currently serving as 
Special Assistant to the President for Domestic Policy where he has 
worked on the President's Prisoner Reentry Initiative, the Justice 
Department's Initiative on Safer Communities, the Summit on School 
Violence and implementation of the Combat Methamphetamine Act of 2005.
    The FOP has worked closely with Mr. Jacob on several occasions, 
most recently and notably on issues surrounding the administration of 
the Hometown Heroes Act of 2003. Mr. Jacob was extremely helpful in the 
effort to ensure that the surviving family members of public safety 
officers killed in the line of duty receive Federal benefits promptly 
and with minimum bureaucratic red tape. On all occasions, Mr. Jacob's 
profound concern for the welfare of workers is evident.
    President Bush has made a fine choice in Gregory Jacob to be the 
next Solicitor for the Department of Labor and, on behalf of more than 
325,000 members of the Fraternal Order of Police , we are proud to 
support his nomination. If I can be of any further assistance on this 
matter, please do not hesitate to contact me or Executive Director Jim 
Pasco at my Washington office.
            Sincerely,
                                          Chuck Canterbury,
                                                National President.
                                 ______
                                 
           Grand Lodge Fraternal Order of Police ,
                                     Washington, DC. 20002,
                                                  October 23, 2007.
Hon. Edward M. Kennedy, Chairman,
Hon. Michael B. Enzi, Ranking Member,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC. 20510.

    Dear Mr. Chairman and Senator Enzi: I am writing on behalf of the 
membership of the Fraternal Order of Police to advise you of our strong 
support for the nomination of Howard M. Radzely to be the next Deputy 
Secretary for the U.S. Department of Labor.
    Mr. Radzely holds degrees from the University of Pennsylvania's 
Wharton School of Business and Harvard Law School, and served on the 
Harvard Law Review. Before entering private practice here in 
Washington, DC., he clerked for the Honorable J. Michael Luttig, U.S. 
Court of Appeals for the Fourth Circuit, and for the Honorable Antonin 
Scalia, Supreme Court of the United States. In June 2001, he joined the 
Labor Department as Deputy Solicitor. For the past 3 years, he has 
served as the Solicitor for the Department, a position he held in an 
Acting capacity from June 2001 to January 2002 and then again from 
January 2003 until his confirmation by the Senate in December of that 
year. In January of this year, Mr. Radzely was named Acting Deputy 
Secretary.
    The FOP his consulted with Mr. Radzely on several occasions 
concerning membership issues involving overtime law and regulations and 
found him to be very responsive and helpful in every instance. He has 
never hesitated to share his keen legal insights, which have been 
extraordinarily valuable, particularly in the months immediately 
following the implementation of the new Federal Labor Standards Act 
overtime rules. On all occasions, Mr. Radzely's profound concern for 
the welfare of workers is evident.
    President Bush has made a fine choice in Howard Radzely to be the 
next Deputy Secretary of Labor and, on behalf of the more than 325,000 
members of the Fraternal Order of Police , we are proud to support his 
nomination. If I can be of any further assistance on this matter, 
please do not hesitate to contact me or Executive Director Jim Pasco at 
my Washington office.
                                          Chuck Canterbury,
                                                National President.
Response to Questions of Senator Kennedy, Senator Clinton, and Senator 
                       Gregg by Gregory F. Jacob

                     QUESTIONS FROM SENATOR KENNEDY


Wage and Hour

    Question 1. Under this Administration there have been several 
instances where the Department has entered into settlement agreements 
in wage and hour cases that undermine ongoing private enforcement 
actions. Such settlements can preclude larger recovery for workers 
through these private actions. If confirmed as Solicitor, what steps 
would you take to ensure that the Department of Labor does not enter 
into settlement agreements that would undermine the private enforcement 
of the Fair Labor Standards Act?
    Answer 1. In settling cases, either through an administrative 
supervised agreement or a consent decree, the Department considers many 
factors, including the merits of the case, the nature of the 
violations, whether the affected employees would benefit from a quick 
recovery of back wages, and whether the settlement would unduly affect 
pending private cases. Guidelines that I assisted in developing as 
Deputy Solicitor in 2005 require that when the Wage and Hour Division 
considers an administrative settlement, it must inquire whether there 
are any pending private lawsuits under section 16(b) of the Fair Labor 
Standards Act and make that information available to the Solicitor's 
Office. Moreover, the Solicitor's Office and the Wage and Hour Division 
typically exclude from litigated and administrative settlements 
employees who have brought or opted into private cases under section 
16(b). If confirmed as the Solicitor, I would seek to ensure that 
settlement agreements do not undermine private enforcement of the FLSA.

    Question 2. In your responses to the committee's written questions 
you state that the new overtime rules ``seem to have been a catalyst 
for compliance.'' What evidence do you have to support this assertion? 
Does DOL have compliance surveys that show improvement?
    Answer 2. Following promulgation of the new overtime rule, there 
were numerous reports that employers were reviewing their employee 
classification policies and deciding to pay employees overtime for the 
first time. For example, the Wall Street Journal reported on April 18, 
2005, that ``[n]ow that the dust has settled from last year's 
acrimonious debate, one thing has become clearer: More workers appear 
to have gained overtime protections than lost them as a result of the 
Bush administration's broad revision of the Fair Labor Standard Act's 
white-collar overtime rules.'' Similar articles appeared in the Raleigh 
News and Observer (April 19, 2004) (after a department of WakeMed spent 
about 10 weeks reviewing all positions, 60 employees will be entitled 
to overtime pay for the first time); Dallas Morning News (April 17, 
2004) (a spokesman for J.C. Penney reported that some department 
managers are receiving a raise above the Part 541 salary level); 
Chicago Sun Times (August 11, 2004) (Sears, Roebuck determined that 
2,000 workers now classified as exempt will be reclassified as non-
exempt); Washington Post (July 28, 2004) (St. Jude Children's Research 
Hospital and the University of Missouri will start paying certain 
employees overtime for the first time). The Wage and Hour Division is 
diligently enforcing the new overtime rules. I understand that in 
fiscal year 2006, it collected over $13.2 million in back wages for 
approximately 12,000 employees for violations of the revised Part 541 
rules. The violation most frequently cited in fiscal year 2006 involved 
situations where an employee's primary duty was not ``the performance 
of office or non-manual work directly related to the management or 
general business operations of the employer or the employer's 
customers.''

    Question 3. At the hearing, you mentioned the importance of 
enforcing wage and hour laws on behalf of low-wage workers. What 
specific steps will you take if confirmed as Solicitor to strengthen 
the Department's enforce efforts on behalf of these vulnerable workers?
    Answer 3. In fiscal year 2006, the Wage and Hour Division, with the 
assistance of the Solicitor's Office, collected over $50.5 million in 
back wages for 86,780 workers in nine low-wage industries--an increase 
of 56 percent in back wages for nearly 25 percent more workers in the 
same low-wage industries compared to fiscal year 2001. The Solicitor's 
Office has aggressively pursued litigation and filed amicus briefs in 
cases involving low-wage workers, including workers in car washes, 
restaurants, call centers, garment shops, construction companies, 
health care facilities, and poultry processing plants. If confirmed as 
Solicitor, I would continue to provide full legal support for the Wage 
and Hour Division's commitment to protect workers in low-wage 
industries. I would also continue to support the Wage and Hour 
Division's efforts to reach out to Mexican consulates and immigrant or 
low-wage communities to ensure that low-wage workers receive the pay to 
which they are legally entitled, and to file amicus briefs and bring 
litigation, including seeking civil money penalties, when appropriate.

FMLA

    Question 1. If you are confirmed as Solicitor, one of your duties 
will be to advise the Department about the legality of proposed 
regulations. In your responses to written questions from the committee, 
you said that the FMLA was intended to protect ``employees needing 
intermittent leave for planned medical treatment such as dialysis, 
radiation treatment or chemotherapy'' and that the ``use of FMLA leave 
for these types of scheduled medical appointments is working well.'' 
Don't you agree the FMLA was also intended to cover employees who need 
periodic partial-day absences that cannot be scheduled in advance? 
Don't you think that a worker undergoing chemotherapy should be able to 
take FMLA leave if she feels too sick to come to work on a day when she 
does not have a scheduled treatment?
    Answer 1. The Department's FMLA regulations cover periods of either 
incapacity or treatment due to chronic serious health conditions. 29 
CFR 825.114(a) (2)(iii) An employee who meets the test for FMLA 
eligibility and experiences unscheduled periodic partial-day episodes 
of incapacity would be covered under the regulations, provided that the 
condition satisfies the regulatory definition of a chronic serious 
health condition and the employee provides the employer with sufficient 
notice of the need for FMLA leave. 29 CFR 825.303 The Department's 
regulations provide that absences due to chronic serious health 
conditions are covered even if the employee does not receive treatment 
from a health care provider during the absence. 29 CFR 825.114(e) 
Accordingly, an employee who is incapacitated due to the effects of 
chemotherapy treatment would be covered under the FMLA provided that 
the condition satisfies the regulatory definition and the employee 
meets the eligibility and notice requirements.

Immigration

    Question 1. At the hearing you testified that, in addition to the 
letter wherein ICE agreed not to masquerade as OSHA officials, the 
Department has also entered into an agreement with ICE prohibiting ICE 
from posing as wage and hour inspectors, MSHA inspectors or other DOL 
staff. Please provide a copy of that agreement, and describe any steps 
the Department is taking to ensure that the agreement is enforced. From 
the perspective of the Solicitor's office, what effect do such abuses 
of power by ICE have on labor law enforcement? What effect do they have 
on labor standards for American workers?
    Answer 1. I believe that it is highly inappropriate for ICE 
officials to pose as investigators for OSHA, MSHA, the Wage and Hour 
Division, or any other Department of Labor agency. Such a practice 
breeds distrust of Federal employment law enforcement and discourages 
immigrant employees from cooperating in DOL investigations, which in 
turn adversely affects maintenance of labor standards. The Solicitor's 
Office raised objections with ICE when it learned of the ICE sting 
operation that occurred on Seymour Air Force Base in North Carolina on 
July 6, 2005. While DHS has not entered into a formal written agreement 
with the Department, Secretary Chertoff subsequently testified that ``I 
think that [the North Carolina operation] was a bad idea and I have 
directed it not happen again  . . I think a ruse that involves safety 
or health is not appropriate.'' See Comprehensive Immigration Reform 
II, Hearings Before the Senate Committee on the Judiciary, 109th Cong., 
1st Sess. 11 (2005). Moreover, DHS's Office of Investigations issued a 
written memorandum to all ICE special agents in charge on March 6, 2006 
stating that ``[t]he use of ruses involving health and safety programs 
undermines efforts to increase safety in the workplace and undercuts 
workers willingness to report workplace safety violations based on a 
fear of law enforcement action being instituted against the reporting 
worker,'' and directing that ``[e]ffective immediately, the use of 
ruses involving health and safety programs administered by a private 
entity or a Federal, State or local government agency, such as OSHA, 
for the purposes of immigration worksite enforcement, will be 
discontinued.'' Memorandum from Marcy M. Forman, Director, to All 
Special Agents in Charge, Re: Use of Ruses in Enforcement Operations 
(March 6, 2006) (emphasis in original). A copy of the testimony and of 
the ICE memorandum is attached.

    Question 2. Last month, ICE detained a group of immigrant workers 
in the Coffee County jail in Tennessee. These workers had complained 
that they had not been paid. Their employer had them arrested on 
trumped-up charges of ``trespassing.'' The charges were quickly 
dropped, but the workers still face deportation for trying to enforce 
their rights. Earlier this year, ICE raided a sweatshop in New Bedford, 
Massachusetts where workers were laboring under appalling conditions. 
Even in cases where workers can file claims for lost wages, these 
experiences strongly deter immigrant workers from asserting their 
rights. If confirmed, what steps would you take to ensure that 
violations of labor law discovered by ICE are thoroughly investigated 
and pursued by the Department of Labor? How can DOL and ICE effectively 
communicate about labor law violations without creating a disincentive 
for undocumented workers to report these violations?
    Answer 2. The November 23, 1998 Memorandum of Understanding between 
the Department of Labor and the former Immigration and Naturalization 
Service (now ICE), which continues in effect, sets out procedures to 
improve communications and coordination between the agencies. Under the 
MOU, when ICE obtains or receives information during the course of its 
worksite enforcement activities that indicates a possible violation of 
statutes within the jurisdiction of the Department of Labor, it is 
required to expeditiously notify the Wage and Hour Division (WHD) of 
the suspected violation. ICE also is required to contact WHD whenever 
ICE removes workers from a workplace so that WHD can ensure that the 
workers' wages are collected and paid. Finally, the MOU provides that 
Labor Department investigators, when responding to workers' complaints 
alleging labor violations, will not refer suspected violations of 
immigration law to ICE. This ensures that there is no disincentive for 
workers to file complaints about labor and employment violations, 
regardless of their status. If confirmed as Solicitor, I would provide 
whatever legal assistance is necessary to the Wage and Hour Division to 
ensure that the MOU is effectively implemented.

    Question 3. Under previous Administrations, there was an inter-
agency worker exploitation task force co-chaired by the DOL Solicitor's 
office and the Assistant Attorney General for Civil Rights. This task 
force was instrumental in addressing inappropriate enforcement of 
immigration laws during labor disputes. If confirmed, would you 
consider re-instituting such a task force? If not, what alternate 
mechanisms would you put in place to ensure that advocates have a 
direct line of communication to the Department when this type of 
inappropriate enforcement takes place?
    Answer 3. The November 23, 1998 Memorandum of Understanding between 
the Department of Labor and the former Immigration and Naturalization 
Service (now ICE), which continues in effect, sets out procedures to 
improve communications and coordination between the agencies. Under the 
MOU (section IV.A.), the agencies agreed to implement policies that 
avoid inappropriate worksite interventions where it is known or 
reasonably suspected that a labor dispute is occurring and the 
intervention may, or may be sought so as to, interfere in the dispute. 
If confirmed, I would examine whether this provision of the MOU is 
working well in practice and whether an interagency task force is 
necessary to correct any deficiencies.

    Question 4. There are reports that the Department of Labor plans to 
alter the H-2A agricultural guest worker program's ``50 percent rule,'' 
which requires employers to hire U.S. workers until half the season has 
elapsed. A study of this practice conducted during the Administration 
of President George H.W. Bush concluded that the benefits to employers 
and U.S. workers of this hiring preference substantially outweighed the 
minimal costs to employers.
        a. Has the Department of Labor uncovered new information 
        calling into question the findings of this study? Has the 
        Department conducted a new study of the 50 percent rule's costs 
        and benefits? If so, what are the findings of the study and the 
        recommendations for policy?

        b. Does the Department plan to recommend changes to the 50 
        percent rule? If so, what are those changes? Why are they being 
        proposed?
    Answer 4. The Department has received anecdotal information about 
the impact of the 50 percent rule from both employers and worker 
advocacy groups. The Department has not conducted any formal studies of 
the impact of the 50 percent rule, however, since 1990.
    On August 10, 2007, the President directed the Department ``to 
review the regulations implementing the H-2A program and to institute 
changes that will provide farmers with an orderly and timely flow of 
legal workers, while protecting the rights of laborers.'' Pursuant to 
the President's direction, the Department is evaluating all aspects of 
the H-2A program. On November 8, 2007, the Department submitted to the 
Office of Management and Budget a draft notice of proposed rulemaking 
that would propose revisions to the current H-2A regulations. That 
proposal is currently under review.

    Question 5. The National Council of Agricultural Employers has 
asked the Department of Labor to change the wage rate formula under the 
H-2A program by adopting a special ``prevailing wage'' approach. Is the 
Department considering such a proposal? What would be the basis for 
such a change?
    Answer 5. On August 10, 2007, the President directed the Department 
``to review the regulations implementing the H-2A program and to 
institute changes that will provide farmers with an orderly and timely 
flow of legal workers, while protecting the rights of laborers.'' 
Pursuant to the President's direction, the Department is evaluating all 
aspects of the H-2A program. On November 8, 2007, the Department 
submitted to the Office of Management and Budget a draft notice of 
proposed rulemaking that would propose revisions to the current H-2A 
regulations. That proposal is currently under review.

    Question 6. The Department of Labor's National Agricultural Worker 
Survey found that 47 percent of crop workers are either U.S. Citizens 
or permanent resident immigrants, and that their earnings are quite 
low, averaging less than $13,000 per year. Do you believe that the H-2A 
program's wages, working conditions and recruitment requirements are 
adequate to protect U.S. workers from adverse effects caused by the 
hiring of guestworkers? If not, what aspects of this program need to be 
improved to better protect domestic workers?
    Answer 6. Several features of the H-2A program are designed to 
protect domestic workers. Specifically, the recruiting requirements are 
designed to ensure that domestic workers are aware of and able to apply 
for all agricultural job opportunities before H-2A workers can be 
solicited, and the housing, transportation, and wage requirements, 
among others, ensure that the total cost to employers of hiring H-2A 
workers does not undercut the wages and working conditions of domestic 
workers.
    On August 10, 2007, the President directed the Department ``to 
review the regulations implementing the H-2A program and to institute 
changes that will provide farmers with an orderly and timely flow of 
legal workers, while protecting the rights of laborers.'' Pursuant to 
the President's direction, the Department is evaluating all aspects of 
the H-2A program, including ways that protections for domestic workers 
can and should be enhanced. On November 8, 2007, the Department 
submitted to the Office of Management and Budget a draft notice of 
proposed rulemaking that would propose revisions to the current H-2A 
regulations. That proposal is currently under review.

LMRDA

    Question 1. The Department has recently issued informal guidance in 
the form of a Frequently Asked Questions document that contradicts its 
new LM-30 regulation in several respects. For example, the final rule 
says that union volunteers must file an LM-30 form to report any of the 
interests described in the instructions, such as a mortgage. Contrary 
to this rule, the Department's FAQ document states that certain local 
members only have to report the time they volunteer and the value of 
that time, but no other financial information. If agency guidance goes 
well beyond the text of a final rule, and even contradicts the rule, 
would you advise that the agency should withdraw the rule and revise 
it, rather than facing a long and costly challenge in the federal 
courts?
    Answer 1. I am not yet fully familiar with the Department's final 
rule on the LM-30. Nevertheless, I understand that the recently issued 
Frequently Asked Questions (FAQs) provide guidance to filers on the 
reporting requirements under the revised Form LM-30 regulation. I 
believe that guidance such as FAQs can be used to clarify regulatory 
requirements, but not to contradict them. However, it is my 
understanding that the FAQs in question are intended to clarify the 
final rule in a way that ameliorates the reporting burden on union 
officials without withdrawing or revising the rule. It is my 
understanding that neither the final rule nor the FAQs require union 
volunteers to file reports; the statutory reporting requirement applies 
only to individuals who are officers or employees of the union, but it 
does apply to all such individuals (other than exclusively clerical or 
custodial employees) who work under the control and direction of the 
union without regard to the amount, or method, of compensation for 
their service to the union.

                      QUESTIONS OF SENATOR CLINTON

    Question 1. One area where the Department of Labor has come under 
criticism in recent months involves OSHA enforcement. Some have charged 
the Occupational Health and Safety Administration with failing to 
conduct a vigorous investigation of dangerous and even life-threatening 
hazards through the Enhanced Enforcement Program. Some have claimed, in 
particular, that even in cases where OSHA has already cited a company 
for a violation at one of its worksites, the company has felt free to 
permit similar or even identical hazards to remain in place at its 
other sites.
    What role have you played in the administration of the Enhanced 
Enforcement Program? Do you believe the Program has been effective? Do 
you believe that OSHA has been sufficiently aggressive in investigating 
violations at multiple worksites within the same employer? Do you 
believe that OSHA needs additional legislative authority in order to 
fulfill its obligation to protect workers by undertaking corporate-wide 
investigations where appropriate?
    Answer 1. It is my understanding that the Office of the Solicitor 
(SOL) has worked closely with OSHA to implement the Enhanced 
Enforcement Program (EEP), an enforcement initiative that targets 
employers who, despite OSHA's enforcement and outreach efforts, ignore 
their compliance obligations under the OSH Act and place employees at 
risk. Under the EEP, OSHA conducts targeted inspections of other 
worksites of the same employer in an effort aimed at obtaining 
compliance corporate-wide. In February 2005, SOL and OSHA issued 
specific guidance to Regional Solicitors and OSHA Regional 
Administrators on how to draft citations and settlements that would be 
suitable for summary enforcement proceedings under Section 11(b) of the 
OSH Act, making this tool an even more effective component of the EEP.
    As of September 30, 2007, after 4 years of implementation, OSHA had 
identified approximately 2,097 cases meeting the criteria for enhanced 
enforcement, many of which involved workplace fatalities. The program 
anticipated the need for aggressive monitoring of such employers and 
includes specific follow-up inspection procedures that may extend to 
other worksites of a company to verify abatement and determine if 
similar violations are being committed. OSHA has also issued eight 
``EEP Alert'' memoranda to its field staff as a result of these 
inspections, which identify specific employers who have had multiple 
EEP cases, targeting them for additional enforcement emphasis on a 
company-wide basis. OSHA's EEP Alerts have resulted in approximately 84 
additional inspections of these employers. OSHA is currently 
considering refinements to the program to make EEP an even more 
effective enforcement tool.
    OSHA has authority under the act to undertake corporate-wide 
investigations where appropriate, and OSHA uses this authority under 
the EEP. If I am confirmed as Solicitor, I would ensure that SOL 
continues its strong support of the EEP program.

    Question 2. One important aspect of the Department of Labor's 
responsibilities involves the lawful admission of temporary, 
nonimmigrant workers into the country through the H-2A program. We have 
heard from many farmers and advocates in the agricultural community who 
feel the Department of Labor has been unresponsive to their concerns 
about the farm labor shortage. Should you be confirmed, what steps do 
you plan to take to improve the effectiveness of the H-2A program in 
the absence of legislation?
    Answer 2. On August 10, 2007, the President directed the Department 
``to review the regulations implementing the H-2A program and to 
institute changes that will provide farmers with an orderly and timely 
flow of legal workers, while protecting the rights of laborers.'' On 
November 8, 2007, the Department submitted a draft notice of proposed 
rulemaking to the Office of Management and Budget. That proposal is 
currently under review. On the enforcement side, WHD has designated 
agriculture as one of nine targeted low-wage industries on which it 
particularly focuses its enforcement efforts. If confirmed as 
Solicitor, I will ensure that the Solicitor's Office provides these 
initiatives the legal advice and support necessary for them to succeed.

    Question 3. Today, women working full-time, year-round, still earn 
only 77 cents for every dollar earned by a man. In 2005, the median 
weekly pay for women was $486, or 73 percent of that for men--$663. A 
2003 GAO report, ``Women Work: Work Patterns Partially Explain 
Difference between Men's and Women's Earnings'' found that even when 
accounting for all the other variables that are often used to justify 
the pay gap, such as time out of the workforce to care for children or 
part-time work, women still earn significantly less than men. The 
report also concluded that 20 percent of the wage gap could not be 
explained by factors other than discrimination.
    Earlier this year, I joined with Senators Kennedy and Harkin to 
send a letter to the Government Accountability Office requesting a 
review of the Department of Labor's and the Equal Employment 
Opportunity Commission's enforcement, outreach and technical assistance 
activities with regard to cases of potential wage discrimination, as 
well as the Department of Labor's treatment of the Equal Opportunity 
Survey and the presence of pay disparities at Federal agencies and 
between job categories. As Solicitor of Labor, will you pledge to 
examine this report when it is released and consider the need to 
implement changes within the Department of Labor based on the findings?
    Answer 3. If confirmed as Solicitor, I will examine the GAO Report 
once it is issued and consider any recommendations it puts forward that 
relate to the mission of the Solicitor's Office.

                       QUESTION OF SENATOR GREGG

    Question 1. Following several court decisions, there are 
outstanding Department of Labor regulations and guidance on minimum 
wage, overtime, and other wage related laws and how they should apply 
to workers with the H-2A visas. Considering the unfortunate lack of 
progress that the Department has made on improving its administration 
of our guest worker programs and being responsive to input from our 
employers, can you please give me a status report on where the 
regulations and guidance are in the process? In addition, as the new 
Solicitor, what do you intend to do to help move the process along more 
expeditiously?
    Answer 1. On August 10, 2007, the President directed the Department 
``to review the regulations implementing the H-2A program and to 
institute changes that will provide farmers with an orderly and timely 
flow of legal workers, while protecting the rights of laborers.'' On 
November 8, 2007, the Department submitted a draft notice of proposed 
rulemaking to the Office of Management and Budget. That proposal is 
currently under review. On the enforcement side, WHD has designated 
agriculture as one of nine targeted low-wage industries on which it 
particularly focuses its enforcement efforts. If confirmed as 
Solicitor, I will ensure that the Solicitor's Office provides these 
initiatives the legal advice and support necessary for them to succeed.

    [Editor's Note: Due to the high cost of printing, previously 
published materials are not reprinted. To review the attachment 
submitted by Mr. Jacob's please go to http://www.gpoaccess.gov. Click 
on ``A to Z Resource List.'' Scroll down to ``Congressional Hearings'' 
and click. Scroll down to ``Search'' and click. Scroll down to ``109th 
Congress'' and click on the box for ``Senate Hearings.'' Scroll down to 
the end of the page and type in ``Comprehensive Immigration Reform 
II'',``109-668''. Click on ``Submit.'' Scroll down the page to number 
``[15]'' and click on ``pdf.'' See pages 11, 21-22, 53-56, 62, and 65.]


     Response to Questions of Senator Kennedy and Senator Clinton 
                          by Howard M. Radzely

                      QUESTIONS OF SENATOR KENNEDY


Wage and Hour

    Question 1. The Department claims to be doing intensive targeted 
enforcement efforts in low-wage industries, including directed 
investigations in high-violation industries. What do these directed 
investigations entail? How does the Department select particular 
workplaces for these investigations? Does the Department typically 
pursue enforcement actions against the employers involved, or provide 
compliance assistance?
    Answer 1. The Wage and Hour Division (WHD) identifies potential 
problem areas by regularly analyzing case data and conducting 
independent research, internal and external audits, and office 
evaluations. For example, the annual DOL performance and accountability 
report for fiscal year 2006 discusses the results of WHD's most recent 
nationwide low-wage survey of prior violators (available at 
www.dol.gov/dol/aboutdol/budget.htm). The analysis developed by the 
national office of WHD is forwarded to local Wage and Hour officials to 
develop appropriate enforcement initiatives for their respective 
offices.
    Directed, or targeted, investigations are conducted primarily in 
industries that employ large numbers of vulnerable, low-skilled workers 
and tend to have high rates of minimum wage and overtime violations. 
WHD does not disclose whether an investigation is being conducted as 
the result of a complaint, so an employer would not know whether a 
particular investigation is complaint-based or directed. The scope of 
the investigation as well as any applicable remedies for violations 
that are found are the same regardless of whether it is generated by a 
complaint or is a directed investigation.
    The industries WHD focuses on include janitorial services, 
restaurants, agriculture, garment manufacturing, health care, day care, 
guard services, hotels and motels, and temporary help. WHD initially 
focused its low-wage program on the garment manufacturing, agriculture, 
and health care industries. In fiscal year 2004, WHD began expanding 
its low-wage program to include a broader group of identified low-wage 
industries. As a result of its analysis, WHD identified approximately 
33 low-wage industries that are regularly targeted for directed 
investigations.

    Question 2. How has the Department determined the impact of the 
2004 overtime revisions? Have you compiled any data on how many people 
gained or lost overtime rights? Does the Department know how many 
people are currently covered by the overtime provisions of the FLSA? 
Why is this information no longer publicly available?
    Answer 2. The Department has not conducted a formal study on the 
impact of the 2004 overtime revisions. In fiscal year 2006, WHD 
collected over $13.2 million in back wages for approximately 12,000 
employees for violations of the revised Part 541 rules.
    After the final rule was issued, there were many articles 
describing workers gaining overtime. For example, the Wall Street 
Journal reported on April 18, 2005, that ``[n]ow that the dust has 
settled from last year's acrimonious debate, one thing has become 
clearer: More workers appear to have gained overtime protections than 
lost them as a result of the Bush administration's broad revision of 
the Fair Labor Standard Act's white-collar overtime rules.''
    ESA estimates that in 2006, 84 million wage and salary workers were 
covered by the overtime provisions of the FLSA. I have been informed 
that under Public Law 104-66, Section 4(d)(1) reports are no longer 
required.

    Question 3. Earlier this year, the Supreme Court upheld a 
Department of Labor regulation stating that home care workers are not 
entitled to Federal minimum wage and overtime protections, even when 
they are employed by third party agencies. Although the Court held that 
the regulation was a reasonable interpretation of Federal law, DOL 
clearly has the authority to alter its rules so that these workers 
receive Federal wage protections. If confirmed, would you start a new 
rulemaking proceeding to protect these workers? If not, what is your 
justification for continuing to deny them fundamental wage protections?
    Answer 3. The Fair Labor Standards Act exempts ``any employee 
employed in domestic service employment to provide companionship 
services.'' 29 U.S.C. Sec. 213(a)(15). The Department's 1975 regulation 
on the companionship exemption concluded that the phrase ``any 
employee'' is most naturally read to include all employees providing 
such services, regardless of who employs them, 40 Fed. Reg. 7404, 7405 
(1975), and the Supreme Court stated in its unanimous decision in Long 
Island Care at Home, Ltd. v. Coke that it could not identify ``any 
significant legal problem with the Department's explanation,'' 127 S. 
Ct. 2339, 2351 (2007). The Department has no present plans to revisit 
this regulation.

    Question 4. You were Solicitor of Labor at the time of the Gulf 
Coast storms. What role did you play in the Administration's decision 
to suspend the prevailing wage protections of the Davis-Bacon Act? Was 
the Administration concerned that suspending prevailing wage rules 
would drive down wages at a time families needed decent wages to get 
themselves and the New Orleans economy back on track?
    Answer 4. The decision to suspend the Davis-Bacon requirements on 
September 8, 2005 (subsequently reinstated on November 8, 2005), was 
part of an Administration-wide effort to remove as many barriers as 
possible to the recovery efforts in the areas impacted by the Gulf 
Coast storms. The Office of the Solicitor (SOL) was consulted on legal 
issues with regard to suspension of Davis-Bacon provisions in the Gulf 
Coast region, and SOL provided guidance on the appropriate legal 
methods to suspend Davis-Bacon requirements.

    Question 5. Despite longstanding clear instructions from the 
Supreme Court, employers continue to violate the rule that workers must 
be paid for time spent donning and doffing necessary protective 
equipment. For example, recently, in Gorman v. The Consolidated Edison 
Company, the Second Circuit ruled that nuclear power plant workers are 
not entitled to pay for time spent going through security or donning 
and doffing protective gear. The court's ruling was based on the 
regulatory definition of ``principal activity'' which the Department 
could change. What steps should the Department take to improve 
compliance with the donning and doffing decision, particularly in 
industries other than the poultry industry, where there has not yet 
been extensive litigation about the requirements governing employers? 
If confirmed as Deputy Secretary would you revisit the regulatory 
definition of a ``principal activity?'' If not, why not?
    Answer 5. I remain concerned about the Second Circuit's recent 
holding in Gorman v. Consolidated Edison Company, No. 05-6546 (May 30, 
2007), petition for rehearing denied (Sept. 17, 2007), that donning and 
doffing of required gear by employees of a nuclear power station is not 
integral to the employees' principal activities and thus not 
compensable. That holding seems to be in conflict with the Supreme 
Court's decision in IBP v. Alvarez, 546 U.S. 21 (2005) (in which the 
Department filed an amicus brief on behalf of the workers), Steiner v. 
Mitchell, 350 U.S. 247 (1956), and Wage and Hour Advisory Memorandum 
No. 2006-2 (May 31, 2006), as well as arguments advanced in amicus 
briefs over the past few years filed by the Department on behalf of 
workers in the poultry and other industries and in litigation brought 
by the Department. For example, in Dege v. Hutchinson Technology, Inc., 
No. 06-3754 (D. Minn.), the Department recently filed an amicus brief 
in support of workers who manufacture disk drive suspension assemblies 
and medical devices who were not paid for time spent donning and 
doffing ``cleanroom'' gear. Also, the Department has settled a number 
of cases in the past few years against major car manufacturers 
requiring them to compensate their employees for donning and doffing of 
required clothing. The Department recently filed suit against a coal 
mining company seeking compensation for donning and doffing of safety 
equipment. The Department is monitoring whether the workers in Gorman 
seek Supreme Court review. If they do, the Office of the Solicitor will 
work with the Solicitor General to determine the appropriate action. 
The Department will continue to monitor this issue.

    Question 6. Under this Administration there have been several 
instances where the Wage and Hour division issued an opinion letter 
that clearly had the potential to influence pending litigation, 
notwithstanding the Department's articulated policy of not issuing 
opinion letters concerning matters which are currently under review by 
the courts. In one such circumstance, for example, the Department 
issued an opinion letter responding to an inquiry from a trade 
association when one of the association's member businesses was 
currently involved in a class action lawsuit addressing the issue that 
was the subject of the association's inquiry. Does the Department 
continue to maintain a policy of not issuing opinion letters concerning 
matters that are the subject of pending litigation? If confirmed, what 
steps would you take to ensure that this policy is not circumvented by 
trade associations or other special interest groups?
    Answer 6. The Department instituted a policy generally not to issue 
an opinion letter where: (1) the opinion is sought by a party to 
pending private litigation concerning the issue addressed in the 
letter, or (2) the opinion is sought in connection with an 
investigation or litigation between a client or firm and the Wage and 
Hour Division (WHD) or the Department of Labor. The Department 
maintains an active amicus program where a party in litigation can seek 
WHD's input by requesting that the Office of the Solicitor, on behalf 
of the Department, file an amicus brief in support of one of the 
parties if there are important legal issues impacting or relating to 
the Department's programs. The Department will issue opinion letters to 
umbrella organizations such as trade associations, national unions, 
employee associations, etc., even though one or more of their members 
may be in litigation, because the purpose of opinion letters is to 
resolve issues of importance as well as to provide interpretive 
guidance on regulatory issues. If umbrella organizations, any one of 
whose many members or constituent unions may be involved in active 
litigation, were precluded from seeking opinion letters, WHD's ability 
to provide guidance would be unduly limited.

    Question 7.  At the hearing, you mentioned that tipped workers have 
been a focal point of the Department's efforts in the Wage and Hour 
Division this year. Please describe the nature of your efforts on 
behalf of tipped workers. Have these efforts focused more on compliance 
assistance for employers, or enforcement actions on behalf of workers? 
What signs can the Department point to suggesting that these efforts 
have been successful?
    Answer 7. WHD balances strong enforcement, compliance assistance, 
and partnership activities to protect workers and to make employers 
aware of their obligations. In fiscal year 2007, in addition to its 
complaint-based investigations, WHD conducted 15 local initiatives 
targeting full-service restaurants. Preliminary fiscal year 2007 
calculations indicate that WHD concluded 23 percent more directed cases 
in the restaurant industry than it did in fiscal year 2006, resulting 
in a 69 percent increase in back wage findings for 17 percent more 
employees. In fiscal year 2006, WHD recovered nearly $17 million for 
over 29,000 workers in the restaurant industry. In fiscal year 2008, 
WHD is planning to pursue over 20 initiatives focusing on the 
restaurant industry. In addition to enforcement activity, WHD 
disseminates compliance assistance materials to employers and employees 
in the restaurant industry. The ``Restaurant and Fast Food 
Establishments'' and ``Tipped Employees Under the Fair Labor Standards 
Act (FLSA)'' fact sheets, which are regularly distributed to employers, 
workers, and associations through various venues, summarize regulations 
related to tip credit. WHD is currently updating the ``Tipped 
Employee'' fact sheet to provide common examples and to address 
questions related to tip credit.

Misclassification

    Question 1. In his written answers to the committee's questions, 
Mr. Jacob said that the Department is considering changes to its 
database to collect information on workers who are misclassified as 
independent contractors. Will you commit to implementing this change, 
if confirmed? What is the time frame for implementing this change?
    Answer 1. In fiscal year 2008, the Wage and Hour Division (WHD) is 
planning to implement changes to track enforcement and compliance 
assistance activities related to the misclassification of workers as 
independent contractors. As Acting Deputy Secretary, and if confirmed 
as Deputy Secretary, I will support WHD's efforts in this area.

    Question 2. Workers who are misclassified as independent 
contractors are often wrongly denied protection under other laws, such 
as State workers' compensation laws and the National Labor Relations 
Act. A recent GAO report faulted the Department for not doing enough to 
refer these cases to other State and Federal agencies. Don't you agree 
that the Department should do everything in its power to prosecute 
these kinds of cases and to alert other agencies when it discovers that 
workers are being denied their rights? If confirmed, would you commit 
to referring cases to agencies to protect workers' rights?
    Answer 2. In response to the GAO recommendation that WHD evaluate 
the extent to which misclassification cases identified through FLSA 
investigations are referred to the appropriate Federal or State agency 
potentially affected by the misclassifications and take action to make 
improvements as necessary, WHD reviewed its internal processes for 
referral of potential employee misclassification to other agencies with 
first-line field managers and reminded them to follow the agency's 
longstanding Field Operations Handbook instructions. The FOH provides 
that possible violations of laws or regulations not enforced by WHD 
should be reported to WHD field managers for a determination of 
appropriate referral steps, if any. WHD recently directed field 
managers that IRS referrals should be made on alleged ``independent 
contractor'' cases where WHD determines that the putative ``independent 
contractor'' is an employee under FLSA.
    WHD believes that an explicit policy of automatic referrals to all 
other agencies could have an adverse impact on WHD's mission and 
ultimately harm those workers whom the agency is tasked with 
protecting.

Immigration

    Question 1. My office has received many complaints that DOL offices 
have become inaccessible in recent years. It is difficult to reach a 
human being at DOL offices, and hard to receive updates on the status 
of a case. This is particularly true for workers with language 
barriers. These communication problems create particular challenges 
when the Department is primarily relying on worker complaints, rather 
than the comprehensive industry compliance audits and targeted 
enforcement that we've seen in previous Administrations. What steps is 
DOL taking to ensure that its offices are accessible to workers, 
particularly workers with language barriers, day laborers, and other 
workers that may have difficulty navigating the system? If confirmed, 
would you commit to conducting a thorough independent audit of the 
accessibility of DOL offices and making substantial improvements in 
response to the findings?
    Answer 1. The Department takes seriously its obligations to provide 
workers with access to DOL offices and provides translations of 
relevant worker protection information on the Department's Web site, on 
worker protection posters required at work sites, and on materials it 
disseminates to workers, employers and community groups. The two 
agencies with the most immediate contact with workers who may have 
``difficulty navigating the system'' are OSHA and the WHD, both of 
which have undertaken significant efforts to provide access to the 
workers in question.
    WHD utilizes a toll-free number with the ability to communicate 
with the public in some 150 languages to assist workers in locating the 
appropriate office to respond to their questions and needs. In fiscal 
year 2008, WHD plans to increase awareness of its toll-free help line 
by listing it on WHD posters and other compliance assistance materials. 
WHD also currently has some 104 compliance assistance materials 
available in languages other than English, including Spanish, 
Vietnamese, Thai, Korean, Chinese, and Haitian. WHD is also working to 
translate materials into Russian and Hmong. WHD has also developed 
worker rights cards and fact sheets for specific worker groups, 
including day laborers.
    As described in its fiscal year 2008 Compliance Assistance Plan, 
WHD also works with organizations that provide assistance to immigrants 
and conducts its own direct outreach. For example, WHD works with 
Mexican Consulates, participates in Spanish-speaking radio programs, 
and attends community fairs. The agency is also considering expanding 
JEWP (Justice and Equality in the Workplace Program) and EMPLEO 
(Employment Education and Outreach) type partnerships--such as TIGAAR 
(The Information Group for Asian American Rights) in Houston, TX; REACH 
(Rapid Employee Assistance in Chinese Hotline) in New York City, NY; 
Alza Tu Voz (Lift Your Voice) in Philadelphia, PA; and PIECE 
(Protecting Immigrant Employees with Compliance and Education) in 
Kansas City, KS--to extend WHD's ability to serve immigrant populations 
throughout the country.
    Other vulnerable populations, such as day laborers, are further 
served through WHD's partnership with Federal and State agencies, as 
well as other organizations and stakeholders. For example, WHD's New 
York City District Office works with local community groups in New York 
City to provide outreach to day laborers. Similarly, other WHD offices, 
including Gulfport, Mississippi, and New Orleans, Louisiana, provide 
outreach to day laborers and frequently visit a variety of venues where 
day laborers congregate, as well as charities and community centers.
    Similarly, OSHA operates a toll-free number, which also acts as a 
call center for after-hours complaints. Through the call center, a 
worker calling in with a complaint or requesting information is routed 
directly to designated individuals to answer questions. If they are 
interested in filing a complaint, they are routed directly to one of 
OSHA's field offices. This system also operates in Spanish. In areas of 
the country where there is a large Hispanic population, OSHA has hired 
Spanish-speaking compliance officers who also perform outreach and 
compliance assistance to the Hispanic community.
    OSHA also conducts extensive outreach to immigrant communities with 
education, training activities and public service announcements (PSAs) 
and provides extensive compliance assistance information in Spanish, 
including OSHA's Spanish-language Web site, OSHA en Espanol, which 
received some 141,210 visits in fiscal year 2006. OSHA also engages in 
extensive outreach to vulnerable populations, such as day laborers. For 
example, in the aftermath of Hurricane Katrina, OSHA hurricane response 
teams provided safety and health advice to employers and employees at 
staging areas, parking lots of building supply stores, and many other 
places at which workers were likely to congregate. OSHA staff also 
worked closely with the Mexican Consulate in Houston and participated 
in a Hispanic Safety Fair in the Gulf Coast area in August 2006 to 
ensure that Hispanic workers had a forum to express concerns about 
workplace safety and health issues.
    As Acting Deputy Secretary, and if confirmed as Deputy Secretary, I 
will work with DOL agencies as they work to further improve 
accessibility to all workers.

    Question 2. In 2001 and 2002, the Department of Labor delayed 
issuing the annual H-2A program wage rates (the adverse effect wage 
rates for each State) until a lawsuit was filed by the United Farm 
Workers and others. This lawsuit was ultimately successful in requiring 
the agency to issue the wage rates each year. If confirmed, what steps 
would you take to make sure that the H-2A program wage rates for 2008 
are issued on a timely basis at the very beginning of the year?
    Answer 2. Beginning in 2003, the Department has annually issued the 
H-2A Adverse Effect Wage Rates (AEWRs) for each State and published the 
AEWRs in the Federal Register between February 21 and March 16 as 
follows:

    February 26, 2003--Vol. 68, Number 38 (pages 8929-30)
    March 3, 2004--Vol. 69, Number 42 (pages 10063-65)
    March 2, 2005--Vol. 70, Number 40 (pages 10152-53)
    March 16, 2006--Vol. 71, Number 51 (pages 13633-35)
    February 21, 2007--Vol. 72, Number 34 (pages 87909-11)

    The Employment & Training Administration (ETA) currently expects to 
publish the 2008 AEWRs in at least as timely a manner as in the past 5 
years. This expectation, however, is based upon timely receipt from the 
Department of Agriculture of farmworker wage survey information, which 
ETA then publishes, by State, for use by our Nation's H-2A agricultural 
employers. As Acting Deputy Secretary, and if confirmed as Deputy 
Secretary, I fully support ETA's goal of continued timely publication 
of AEWRs.

Safety and Health

    Question 1. In March 2007, I requested that the Department provide 
documents related to the withdrawal of two OSHA citations issued to 
Avalon Bay Communities construction sites in Massachusetts. The 
Department has informed my staff that it will not produce responsive 
documents and, instead, provided only limited access to the documents 
at the Department. Can you explain the legal basis for the Department's 
refusal? If confirmed, will you commit to providing the requested 
documents?
    Answer 1. It is my understanding that the Department has provided 
some 1,427 pages of relevant documents requested by the committee. The 
Department initially made available for your staff's inspection a 
number of confidential internal documents regarding personnel issues, 
and explained that there was an ongoing investigation of a related 
matter by the Department's Office of the Inspector General (OIG). I 
further understand that after inspecting the confidential documents, 
committee staff requested copies, and I have been informed that the 
requested confidential materials were delivered to the committee on 
November 9, with the exception of 21 pages that the OIG has requested 
be withheld pending the outcome of their investigation.
    There are also two additional OSHA investigation case files, one 
still open and one recently closed. I have been informed that the 
recently closed file should be transmitted to the committee shortly. 
Also, when the OIG determines it is appropriate to turn over the 
remaining 21 pages and when OSHA completes the remaining open 
investigation, the Department will promptly provide the remaining 
requested documents to the committee. I have asked that Department 
staff keep committee staff informed of the status of the open 
investigation in the interim.

    Question 2. The Department has failed to issue a standard requiring 
employers to pay for employees' required safety equipment, such as hard 
hats, safety glasses, and chemical protective suits. Will you assure me 
that the Department will meet its promised November deadline for 
issuing this standard? Will you commit that the final rule will be no 
less protective than the rule proposed in 1999, and no less protective 
than OSHA's longstanding policy regarding the kinds of safety equipment 
employers must pay for?
    Answer 2. OSHA's final rule regarding personal protective equipment 
has been transmitted to the Federal Register and is expected to be 
published next week. OSHA officials would be happy to provide the 
committee a briefing on the rule next week.

    Question 3. At your confirmation hearing last week, you said that 
OSHA only suspended targeted investigations at Ground Zero, but that 
the Department continued other enforcement efforts. During the 9 months 
following the attacks of September 11th, were there any OSHA 
enforcement inspections or other enforcement actions against any 
employers at the World Trade Center site? If so, please provide a list 
of those inspections or enforcement actions and the results, including 
specifically whether any citations were issued.
    Answer 3. I have been informed that there were no enforcement 
actions against employers for work at the World Trade Center (WTC) 
Emergency Project during the 9 months immediately following September 
11, 2001, but that OSHA would have investigated any fatalities or 
formal complaints, if there had been any. Beginning in mid-October 
2001, however, inspections were conducted in the areas around the WTC 
site. During the 9 months following September 11 (through May 28, 
2002), OSHA conducted 76 inspections (69 citations with 142 serious 
violations, 4 other than serious violations, and 4 repeat violations) 
south of Canal Street in Manhattan. In addition, during the winter/
spring of 2002, OSHA also conducted a Local Emphasis Program--Phase 1 
that involved safety and health inspections of some 34 buildings 
immediately around the WTC site with visible or known damage. This 
effort included 51 inspections (9 citations with 22 total violations). 
All sites on the list were visited, but in some cases no inspection 
occurred because work was already complete or had not yet begun.

    Question 4. At your confirmation hearing, you claimed that the 
Department's ergonomic enforcement activity is focused on issuing 
ergonomic hazard alert letters. Please explain why none of the 
Department's hazard alert letters has resulted in the issuance of a 
general duty citation. How does the issuance of these letters 
constitute effective enforcement, if it does not lead to any citations?
    Answer 4. As part of its enforcement plan for ergonomics, OSHA 
recently launched its follow-up program for ergonomic hazard alert 
letters (EHALs) to determine whether employers who received an alert 
letter have taken action to reduce those hazards. As of mid-September, 
OSHA had received responses from approximately 320 employers that 
originally received EHALs. OSHA reports that 280 employers have taken 
action to address the ergonomic hazards, 25 employers have apparently 
gone out of business, and OSHA is still analyzing the remaining 
responses.

    Question 5. Please report how many cases the Department has 
referred to the Department of Justice for criminal prosecutions under 
the OSH Act since 2003. For those same years, please report the number 
of cases in which OSHA found willful violations that resulted in a 
worker fatality. In how many of the cases referred to the Department of 
Justice did the Department of Justice decline to prosecute? What was 
the disposition of the cases that the Department of Justice prosecuted?
    Answer 5. Since my memorandum as Solicitor of Labor on September 5, 
2003, requiring that the Solicitor's Office evaluate for criminal 
referral all cases involving a willful violation of an OSH Act 
regulation that causes the death of an employee, the Department 
referred 10, 10, 12, and 10 cases to the Justice Department under the 
OSH Act in fiscal year 2004--2007, respectively. This is a significant 
increase from the average of 6.2 referrals a year for the preceding 
decade. OSHA found willful violations that resulted in a worker 
fatality in 30, 30, 38, and 17 cases for fiscal year 2004-2007, 
respectively. A chart noting the disposition of the referred cases is 
enclosed as Attachment A.

    Question 6. The Chemical Safety and Hazard Investigation Board 
requested that OSHA provide information related to its investigation of 
the March 23, 2005 explosions and fires at the BP Texas City oil 
refinery. OSHA, however, refused to provide information on OSHA's 
enforcement of the Process Safety Management Standard. Please explain 
the basis for OSHA's refusal to provide this information to the CSB. If 
confirmed, will you commit to providing the Chemical Safety and Hazard 
Investigation Board with the inspection records that they requested?
    Answer 6. OSHA provides the Chemical Safety Board (CSB) inspection 
records relevant to the CSB's investigations. Pursuant to the CSB's 
requests, OSHA provided the CSB extensive information from its 
inspections of BP's Texas City refinery, including the investigation of 
the March 2005 explosion and fire. I have been informed that OSHA 
provided all of the Texas City facility inspection records requested by 
the CSB that still existed. However, the CSB also requested voluminous 
materials that did not involve the Texas City refinery, but rather 
OSHA's internal operations related to overall enforcement efforts under 
the process safety management standard, such as OSHA's inspection 
priorities, targeting, staffing levels and inspection budgeting. In the 
Department's opinion, these requests went far beyond the CSB's 
statutory function. OSHA did not provide confidential information in 
light of CSB's position that it would not protect the information from 
public disclosure. Correspondence regarding OSHA's position is enclosed 
as Attachment B.

    Question 7. Please report to the committee on the status of OSHA's 
response to the CSB's report and recommendations on the Texas City 
disaster, including copies of any correspondence between OSHA and CSB 
on its response and a detailed description of the steps that OSHA has 
taken to implement each recommendation made by the CSB. If no action 
has been taken on any recommendation, please explain.
    Answer 7. OSHA has worked closely with the CSB to respond to the BP 
Texas City incident. On March 5, 2007, OSHA's Deputy Assistant 
Secretary and OSHA personnel met with CSB representatives to discuss 
the Board's draft recommendations. Since the CSB issued its final 
recommendations to OSHA, there have been informal discussions with CSB 
staff members both on the substance of their recommendations and on the 
progress OSHA has made in determining how it will respond to those 
recommendations.
    OSHA is close to finalizing its response to the CSB. In the 
meantime, it is already taking actions that implement many of those 
recommendations. For example, OSHA has begun a large enforcement 
initiative to conduct programmed inspections at all of the Nation's 
refineries within Federal OSHA jurisdiction. The Petroleum Refinery 
Process Safety Management National Emphasis Program (CPL 03-00-004), 
implemented last spring, targets areas where OSHA has previously found 
deficiencies that resulted in large-scale accidental releases. The NEP 
requires specific evaluation of the safety of blowdown drums and stacks 
(blowdown systems) at refineries, which was one of the recommendations 
from CSB.
    In addition, OSHA has implemented a training program that has 
already qualified more than 200 additional compliance officers to 
conduct PSM inspections, a course of action that implements the CSB's 
recommendation to ``establish the capacity to conduct more 
comprehensive PSM inspections by hiring or developing a sufficient 
cadre of highly trained and experienced inspectors.'' A chart 
describing OSHA's responses to the CSB's recommendations is enclosed as 
Attachment C.

    Question 8. In 2006, CSB proposed a rule that required employers to 
preserve records following chemical spills and other accidents. OSHA 
submitted comments on the proposed rule, alleging that CSB lacked the 
authority to impose the recordkeeping requirement. Please describe any 
contact or communication between OSHA and any employers or 
representatives of employers (such as trade associations) about the 
CSB's proposed rules. Did OSHA consult with or coordinate its comments 
with any entities outside of the government?
    Answer 8. I am informed that OSHA did not consult with or 
coordinate its comments on this matter with entities outside of the 
State or Federal Government. I am also informed that the CSB's proposed 
rule was discussed in response to at least one inquiry from an outside 
entity to OSHA officials.

OLMS

    Question 1. The new LM-30 rule requires union volunteers to contact 
every financial institution or company with which their families do 
business to ask whether they do business with their unions or with 
certain employers. If financial institutions won't provide this 
information, the members must contact the Department for assistance, 
and also make good faith estimates. Although this is clearly stated in 
the rule, top officials at the Office of Labor Management Standards 
have said that they will not prosecute members who fail to contact 
financial institutions. Does the Department intend to prosecute union 
members who fail to follow the regulation's specific requirement that 
they must contact every financial institution with which they have a 
financial interest or income of $250? If you do not intend to 
prosecute, shouldn't the Department amend its rule so that union 
members know that they need not go through this onerous process?
    Answer 1. The Labor-Management Reporting and Disclosure Act 
(LMRDA), enacted in 1959, required union officers and employees to file 
reports when they, their spouses or minor children receive payments 
from businesses that deal in substantial part with an employer whose 
employees the union represents or is actively seeking to represent, 29 
U.S.C. Sec.  202(a)(3), as well as payments from businesses that deal 
with their labor organization, 29 U.S.C. Sec.  202(a)(4). According to 
the Office of Labor-Management Standards (OLMS) and SOL, the rule does 
not require union officials to contact ``every financial institution 
with which they have a financial interest or income of $250'' in order 
to comply with the LMRDA, much less to avoid criminal violations. For 
example, when a union officer or employee banks with a large commercial 
bank, even if the employer whose employees the union represents also 
does business with the same bank, it should not be necessary to ask 
whether that employer's business equals 10 percent of the large 
commercial bank's annual receipts (as the rule defines ``substantial 
part'').

    Question 2. For nearly 50 years, only union officers and employees 
have been required to disclose and report limited aspects of their 
personal finances. Under the Department's new LM-30 regulation, 
hundreds of thousands of rank-and-file union members and their families 
will be subject to new disclosure rules, solely because they volunteer 
time during the workday. The Department has made this sweeping change 
without studying the time it will take for union members to record 
their no-docking and union-leave pay. What is the Department's basis 
for making such a sweeping change without studying the burden on 
ordinary members?
    Answer 2. In the notice of proposed rulemaking, OLMS estimated that 
the annual filing rate would reach 2,046 reports. 70 Fed. Reg. 51166, 
51199 (August 29, 2005). In the regulatory procedures section of the 
Final Rule, OLMS discussed in detail its estimates of the increased 
reporting and recordkeeping attributable to the new requirement that an 
individual who receives employer salary payments under a union-leave or 
no-docking policy to perform union work under the control and direction 
of the union is a union employee for reporting purposes. 72 Fed. Reg. 
36105, 36151-36158 (July 2, 2007). After taking into consideration 
recent filing trends, comments received, and the requirements of the 
Final Rule, OLMS estimated 6,916 reports would be filed annually, over 
triple the amount estimated in the NPRM. 72 Fed. Reg. at 36153, 36156.

    Question 3. The Department has recently issued informal guidance in 
the form of a Frequently Asked Questions document that contradicts its 
regulation in several respects. For example, the final rule says that 
union volunteers must file a LM-30 form to report any of the interests 
described in the instructions, such as a mortgage. Contrary to this 
rule, the Department's FAQ document states that certain local members 
only have to report the time they volunteer and the value of that time, 
but no other financial information. Indeed, OLMS acknowledges that the 
Department's FAQs purports to change several provisions of the final 
rule or create exceptions. How will the Department enforce the 
regulation in light of the contradictions? Does the Department intend 
to provide a new information collection submission to the Office of 
Management and Budget to reflect the changes in the informal guidance?
    Answer 3. The recently issued Frequently Asked Questions (FAQs) 
provide guidance to filers on the reporting requirements under the 
revised Form LM-30 regulation and, in some instances, clarify 
ambiguities in the instructions. Neither the final rule nor the FAQs 
require union volunteers to file reports; the statutory reporting 
requirement applies only to individuals who are officers or employees 
of the union, but it applies to all such individuals (other than 
exclusively clerical or custodial employees) who work under the control 
and direction of the union without regard to the amount, or method, of 
compensation for their service to the union. Thus, the Department does 
not believe there is a contradiction between the FAQs and the Final 
Rule.

    Question 4. Do you know whether the investigators for the Office of 
Labor-Management Standards are authorized to carry firearms into 
meetings with union officers or other individuals? If these 
investigators have been carrying firearms, what legal authority do they 
have to carry those firearms? If they have not carried firearms or do 
not have the authority to carry them, would you take any actions to 
provide them with such authority?
    Answer 4. OLMS investigators are not authorized to carry firearms. 
I am informed that, absent a legislative grant of additional law 
enforcement authorities, only a U.S. Marshal can authorize an OLMS 
investigator to carry a firearm, provided that the investigator has 
first successfully completed the Criminal Investigator Training Program 
through the Federal Law Enforcement Training Center or equivalent 
training. I do not support arming OLMS investigators. The Department is 
currently considering whether OLMS criminal investigators should be 
classified within the 1801 series or 1811 series, but this technical 
classification issue is separate from the question whether OLMS 
investigators should be armed, as both 1801 and 1811 investigators can 
be authorized to carry firearms.

                      QUESTIONS OF SENATOR CLINTON

    Question 1. One area where the Department of Labor has come under 
criticism in recent months involves OSHA enforcement. Some have charged 
the Occupational Health and Safety Administration with failing to 
conduct a vigorous investigation of dangerous and even life-threatening 
hazards through the Enhanced Enforcement Program. Some have claimed, in 
particular, that even in cases where OSHA has already cited a company 
for a violation at one of its worksites, the company has felt free to 
permit similar or even identical hazards to remain in place at its 
other sites.
    What role have you played in the administration of the Enhanced 
Enforcement Program? Do you believe the Program has been effective? Do 
you believe that OSHA has been sufficiently aggressive in investigating 
violations at multiple worksites within the same employer? Do you 
believe that OSHA needs additional legislative authority in order to 
fulfill its obligation to protect workers by undertaking corporate-wide 
investigations where appropriate?
    Answer 1. During my tenure in the Solicitor's Office (SOL), SOL 
worked closely with OSHA to implement the Enhanced Enforcement Program 
(EEP), an enforcement initiative that targets employers who, despite 
OSHA's enforcement and outreach efforts, ignore their compliance 
obligations under the OSH Act and place employees at risk. One of the 
five prongs of EEP is targeted inspections of other worksites of the 
same employer and other efforts aimed at obtaining compliance 
corporate-wide. SOL has continued to be an active supporter of EEP 
throughout the program's existence. For example, in February 2005, 
then-Acting Assistant Secretary Jonathan Snare and I issued specific 
guidance to Regional Solicitors and OSHA Regional Administrators on how 
to draft citations and settlements that would be suitable for summary 
enforcement proceedings under Section 11(b) of the OSH Act, making this 
tool an even more effective component of the EEP.
    EEP has proven to be an effective new enforcement tool. As of 
September 30, 2007, after 4 years of implementation, OSHA had 
identified approximately 2,097 cases meeting the criteria for enhanced 
enforcement, many of which involved workplace fatalities. The program 
anticipated the need for aggressive monitoring of such employers and 
includes specific follow-up inspection procedures that may extend to 
other worksites of a company to verify abatement and determine if 
similar violations are being committed. OSHA has also issued eight 
``EEP Alerto'' memoranda to its field staff as a result of these 
inspections, which identify specific employers who have had multiple 
EEP cases, targeting them for additional enforcement emphasis on a 
company-wide basis. OSHA's EEP Alerts have resulted in approximately 84 
additional inspections of these employers. OSHA is currently 
considering refinements to the program to make EEP an even more 
effective enforcement tool.
    OSHA has authority under the act to undertake corporate-wide 
investigations where appropriate, and OSHA uses this authority under 
the EEP.

    Question 2. One important aspect of the Department of Labor's 
responsibilities involves the lawful admission of temporary, 
nonimmigrant workers into the country through the H-2A program. We have 
heard from many farmers and advocates in the agricultural community who 
feel the Department of Labor has been unresponsive to their concerns 
about the farm labor shortage. Should you be confirmed, what steps do 
you plan to take to improve the effectiveness of the H-2A program in 
the absence of legislation?
    Answer 2. On August 10, 2007, the President directed the Department 
``to review the regulations implementing the H-2A program and to 
institute changes that will provide farmers with an orderly and timely 
flow of legal workers, while protecting the rights of laborers.'' On 
November 8, 2007, the Department submitted a draft notice of proposed 
rulemaking to the Office of Management and Budget. That proposal is 
currently under review. On the enforcement side, the Wage and Hour 
Division has designated agriculture as one of nine targeted low-wage 
industries on which it particularly focuses its enforcement efforts. As 
Acting Deputy Secretary, and if confirmed as Deputy Secretary, I will 
work with others in the Department of Labor to support the DOL agencies 
responsible for enforcing these protections.

    Question 3. Today, women working full time, year-round, still earn 
only 77 cents for every dollar earned by a man. In 2005, the median 
weekly pay for women was $486, or 73 percent of that for men--$663. A 
2003 GAO report, ``Women Work: Work Patterns Partially Explain 
Difference between Men's and Women's Earnings'' found that even when 
accounting for all the other variables that are often used to justify 
the pay gap, such as time out of the workforce to care for children or 
part-time work, women still earn significantly less than men. The 
report also concluded that 20 percent of the wage gap could not be 
explained by factors other than discrimination.
    Earlier this year, I joined with Senators Kennedy and Harkin to 
send a letter to the Government Accountability Office requesting a 
review of the Department of Labor's and the Equal Employment 
Opportunity Commission's enforcement, outreach and technical assistance 
activities with regard to cases of potential wage discrimination, as 
well as the Department of Labor's treatment of the Equal Opportunity 
Survey and the presence of pay disparities at Federal agencies and 
between job categories. As Deputy Secretary of Labor, will you pledge 
to examine this report when it is released and consider the need to 
implement changes within the Department of Labor based on the findings?
    Answer 3. As Acting Deputy Secretary, and if confirmed as Deputy 
Secretary, I, as well as others in the Department, will examine the GAO 
Report once it is issued. The Department will examine the findings and 
consider any recommendations the GAO puts forward.

                              ATTACHMENT A

           Criminal Referrals by OSHA to DOJ or U.S. Attorneys
                         FY 2004 through FY 2007
    Last update 10/17/2007 (Provided by the Office of the Solicitor)
------------------------------------------------------------------------
                                       Referral
          Name of company                date             Decided
------------------------------------------------------------------------
                          Fiscal Year 2004 [10]
------------------------------------------------------------------------
# Company A........................         2/04  U.S. Atty. declined.
#,*,** Company B...................         3/04  No decision yet.
# Company C........................         3/04  DOJ declined 6/04.
# Company D........................         3/04  U.S. Atty. declined 7/
                                                   04.
# Company E........................         4/04  U.S. Atty. declined 4/
                                                   05.
Union Foundry (crushing)...........         4/04  Guilty plea 9/05 (OSH
                                                   Act & RCRA counts)
                                                  $4.25M fine &
                                                   community service
                                                   project;
                                                  3 yrs. probation.
# Company F........................         6/04  No decision yet.
# Company G........................         7/04  No decision yet.
** Jared Bailey (EKK Grading)......         7/04  Indictment 8/05;
                                                   Acquittal 12/05.
# Company H........................         7/04  U.S. Atty. declined 9/
                                                   04.
------------------------------------------------------------------------
                          Fiscal Year 2005 [10]
------------------------------------------------------------------------
# Company A (fall).................        10/04  U.S. Atty declined 11/
                                                   04.
Glen Wagner; Wagner Excavation             11/04  Information filed 10/4/
 Services (trenching).                             05; Guilty plea 10/12/
                                                   05; Fined $50,000.
Kang Yeon Lee (Big Apple Constr.)          12/04  Guilty plea 4/05; 30
 (balcony collapse).                               months jail; 2 years
                                                   probation; $2M
                                                   restitution and civil
                                                   penalties.
*Ralph Guarnieri (Global Electric).         3/05  Indictment 6/8/06;
                                                   Superseding Ind. 5/
                                                   07.
#,* Company C......................         3/05  U.S. Atty declined 10/
                                                   06.
# Company D........................         4/05  No decision yet.
** Nasir Bhatti & Tariq Alamgir             6/05  Complaint 5/06; Guilty
 (Metla Const.) (fall).                            pleas 12/06.
Greg Clark (Greg Clark Roofing)             6/05  Information 2/06;
 (fall).                                           Guilty plea; Fine.
# Company G........................         7/05  No decision yet.
# Company H........................         7/05  U.S. Atty declined 11/
                                                   05.
------------------------------------------------------------------------
                          Fiscal Year 2006 [12]
------------------------------------------------------------------------
# Company A (electrocution)........        12/05  No decision yet.
# Company B........................        12/05  No decision yet.
# Company C........................        12/05  No decision yet.
# Company D (caught in machine)....         1/06  No decision yet.
# Company E (trench)...............         1/06  U.S. Atty declined 2/
                                                   06.
#,* Company F......................         1/06  No decision yet.
Company G--American Asbestos                2/06  Guilty plea--1 yr.
 Control (fall through skylight).                  probation; $25,000
                                                   fine.
# Company H (fall).................         4/06  No decision yet.
#, ** Company I....................         4/06  No decision yet.
# Company J (electrocution)........         7/06  No decision yet.
# Company K (building collapse)....         8/06  No decision yet.
#, * Company L.....................         9/06  No decision yet.
------------------------------------------------------------------------
                          Fiscal Year 2007 (10)
------------------------------------------------------------------------
# Company A (trench)...............         2/07  No decision yet.
# Company B (trench)...............         2/07  No decision yet.
# Company C (confined space).......         2/07  No decision yet.
# Company D (fall from scaffold)...         3/07  No decision yet.
# Company E (fall from scaffold)...         3/07  No decision yet.
# Company F (fall from scaffold)...         3/07  No decision yet.
# Company G (concrete collapse)....         6/07  No decision yet.
# Company H (machine)..............         6/07  No decision yet.
# Company I (fall).................         9/07  No decision yet.
# Company J (excavation)...........         9/07  No decision yet.
------------------------------------------------------------------------
                           Fiscal Year 2008 (2)
------------------------------------------------------------------------
# Company A........................        10/07  No decision yet.
# Company B (excavation)...........        11/07  No decision yet.
------------------------------------------------------------------------
* False statements (29 U.S.C. Sec.  666(g); 18 U.S.C. Sec.  1001).
** Interference with OSHA inspection (18 U.S.C. Sec.  1505), or
  attempted bribery (18 U.S.C. Sec.  210(b)(1)(A)).
# Company name withheld. Prosecution has not yet been initiated OR
  referral did not result in prosecution.

                              attachment b
                          U.S. Department of Labor,
                                     Washington, DC. 20210,
                                                    April 25, 2006.
Ms. Carolyn W. Merritt, Chairman,
U. S. Chemical Safety and Hazard Investigation Board,
2175 K Street NW, 4th Floor,
Washington, DC. 20037-1809.

    Dear Chairman Merritt: This is in response to your February 3, 2006 
letter requesting Occupational Safety and Health Administration (OSHA) 
files and interviews with OSHA personnel in relation to inspections of 
BP Texas City Refinery (BP TCR).
    The following inspection files were sent to the U. S. Chemical 
Safety and Hazard Investigation Board's (CSB) Don Holmstrom by Janice 
Holmes, Deputy Regional Solicitor, Region VI, on February 9, 2006. A 
copy of the transmittal letter is enclosed.
    1. Inspection files requested in your letter:

     306480153 (``March 30, 2004 Ultraformer furnace fire'');
     308315910 (``May 25, 2004 OSHA inspection fire'');
     308316942 (``May 27, 2005 Ultraformer UU4 pipe corrosion 
incident'');
     308316314 (``July 28, 2005 Resid Hydrotreater Unit RHU 
incident''); and
     308316322 (``August 10, 2005 Gas Oil Hydrotreating Unit 
incident.'')

    2. Additional information provided relates to the following 
inspection file numbers:

     308314632;
     308316751;
     308314996;
     3083155019; and
     308314988.
    The requested inspection file related to ``[t]he August 8th, 
fatality incident involving a contract employee from Reactor Services 
International'' was sent to Mr. Holmstrom on March 15, 2006. A copy of 
the transmittal letter is enclosed.
    We are making Agency personnel available for interviews. We also 
note that you have acknowledged the concerns related to the criminal 
referral of the two BP incidents and have indicated that your 
interviewer will not ask questions related to the March 23, 2005 and 
September 2, 2004 incidents. OSHA will have the Region VI Deputy 
Regional Solicitor, Janice Holmes, present during all interviews to 
protect any privileges and confidential material and to ensure that 
material related to the two incidents still under investigation is not 
inadvertently discussed. The interviews can not be recorded or 
transcribed. The CSB's interviewer is welcome to memorialize the 
interviews by taking notes. Additionally, we ask that the interviews be 
conducted in our OSHA Houston-South Area Office. At this time, we are 
able to make the following individuals from the Houston-South Area 
Office available: James Lawrence and Terry Stibel.
    The individuals listed below and mentioned in your letter all 
participated in the BP inspections subject to the criminal referral. 
Pursuant to advice from the Department of Justice, they will not be 
made available at this time: Terry Wilkins, Charles Williams, and Mike 
Marshall.
    As indicated in your letter, John Miles has retired and no longer 
works for OSHA. Therefore, he is no longer subject to a request to this 
Agency. Mr. Miles has indicated to us that he may consent to an 
interview if Deputy Regional Solicitor Janice Holmes is present. The 
Department will make her available for the interview.
    In your letter you indicate the CSB will not sign a confidentiality 
agreement prohibiting the use of information for public dissemination 
in its final report. Similarly, the CSB has not responded to Janice 
Holmes' earlier oral request that such an agreement be signed. Under 
these circumstances, we will be unable to provide written and oral 
information designated by BP as business confidential, as well as 
personal identifiers of government informants.
    Please have Mr. Holmstrom contact Richard Fairfax, Director of 
OSHA's Directorate of Enforcement Programs (202-693-2100), to 
coordinate arrangements for the interviews. We will continue to assist 
the CSB in your important investigation of the BP TCR.
            Sincerely,
                                       Edwin G. Foulke, Jr.
                                 ______
                                 
                          U.S. Department of Labor,
     Occupational Safety and Health Administration,
                                     Washington, DC. 20210,
                                                  January 19, 2007.
Mr. Don Holmstrom, Investigator,
U.S. Chemical Safety and Hazard Investigation Board,
2175 K Street, NW, Suite 400,
Washington, DC. 20037.

    Dear Mr. Holmstrom: This letter constitutes OSHA's response to your 
July 17, 2006 interrogatories and records request The Solicitor's 
Office will respond to Chris Warner's letter to Howard Radzely, 
Solicitor of Labor, dated November 16, 2006.
    Your letter refers to the CSB's ongoing investigation of the March 
23, 2005, explosions and fire at the BP Texas City oil refinery. As you 
know, and in accord with the Memorandum of Understanding between our 
agencies, OSHA has cooperated fully with that investigation, and has 
provided the CSB with extensive information about the Texas City 
refinery, and the conditions there.
    Your July 17 letter, however, does not ask for information about 
the 2005 Texas City explosion and fire. Instead, it primarily requests 
extensive information on internal OSHA operations relating to overall 
enforcement of the Process Safety Management (PSM) Standard, 29 CFR 
1910.119, especially OSHA's program quality verification (PQV) 
inspections and the OSHA personnel involved in those inspections. 
Specifically, you request material related to: (1) OSHA's plans for 
scheduling PQV inspections, including specific targeting information, 
for all plans from 1995 to 2005; (2) any internal evaluations of those 
plans; (3) detailed information about every single PQV inspection 
conducted pursuant to those plans, as well as access to OSHA's Office 
of Statistics to obtain even more detailed data; and (4) the names and 
qualifications, including education and experience, of every OSHA 
Compliance Safety and Health Officer (CSHO) assigned to conduct PSM and 
PQV inspections.
    This request is a departure from prior CSB practice and addresses 
issues that are committed to the exclusive discretion of the Secretary 
of Labor. The Clean Air Act Amendments of 1990 (CAAA), Public Law 101-
549, November 15, 1990, which created the CSB, authorize the CSB to 
propose ``corrective steps to make chemical production, processing, 
handling and storage as safe and free from risk of injury as is 
possible and [to] include in such reports proposed rules or orders 
which should be issued by . . . the Secretary of Labor under the 
Occupational Safety and Health Act to prevent or minimize the 
consequences of any release . . .'' (emphasis supplied). The CAAA 
contains no indication that the CSB is authorized to provide oversight 
of OSHA's internal operations.
    The Senate Report to the CAAA, which comprises virtually the entire 
legislative history relevant to the CSB, also explains that the CSB was 
intended to function ``as an organizational stimulus to an appropriate 
amount of regulatory activity.'' CAAA, Senate Report No. 101-228, 
December 20, 1989 (``Senate Report''). \1\ This was described as an 
appropriate alternative to having Congress enact specific statutory 
requirements for ``accident prevention'' regulations, a course of 
action the report recognized ``might be counterproductive.'' Ibid. This 
focus on accident prevention is consistent with the OSH Act, which 
authorizes OSHA to promulgate standards that are ``reasonably necessary 
or appropriate to provide safe or healthful employment and places of 
employment,'' and places the duties to comply with OSHA standards and 
to provide a safe workplace with the employer. 29 USC 652(8); 654(a).
---------------------------------------------------------------------------
    \1\ The Senate Report refers only to regulatory activity by the 
EPA, because the version of the statute under consideration at the time 
the report was prepared did not mention OSHA or the Secretary of Labor. 
OSHA was added later, with the CSB having authority to make the same 
type of recommendations to both agencies.
---------------------------------------------------------------------------
    Consistent with this Congressional intent, the CSB has historically 
focused its investigations on an analysis of the specific causes of 
accidental releases, and on identifying potential gaps in OSHA 
standards that may have contributed to those causes. CSB's 
recommendations have suggested filling those gaps or issuing 
interpretative guidance to clarify the application of existing OSHA 
standards. We believe this focus on advising OSHA how its standards can 
best be formulated or explained to prevent or mitigate accidental 
releases is appropriate.
    In contrast, OSHA's internal operations and resource allocations do 
not appear to be within the scope of authorized CSB recommendations. 
Moreover, because the CSB is only authorized to address a discrete 
subset of the hazards within OSHA's responsibility, the CSB could not 
rationally consider how OSHA's PSM enforcement strategy and resource 
allocation fits into OSHA's total enforcement program. In accord with 
established Federal law, OSHA's enforcement strategy is committed 
entirely to OSHA's discretion.
    The information in request numbers 6 and 18 does not relate to 
internal OSHA operations; however, OSHA does not have any of the 
requested documents available at this time. The files relating to the 
Texas City inspection referred to in request 6 have been destroyed 
pursuant to OSHA's record retention policies. Request 18 seeks the type 
of information about workplace injury and illness rates that OSHA 
normally calculates when performing a programmed inspection. OSHA uses 
those rates to decide how comprehensive an inspection to perform. The 
inspections referred to in this request however, all occurred in 
response to catastrophic events, so OSHA would have conducted 
comprehensive investigations regardless of the facilities' injury and 
illness rates; therefore it may not have looked at the logs or recorded 
the injury and illness rates during those investigations. In addition, 
we note that two of the accidents involved occurred in State plan 
States (California and Washington), and likely were not investigated by 
Federal OSHA. Nonetheless, we have requested that any relevant files 
responsive to this request be retrieved from the Federal Archives, and 
we will provide the requested documents if they exist.
    OSHA is declining to provide the records and information in the 
remaining records requests and the interrogatories for the reasons 
explained above. In addition, I note that even if it were appropriate 
for OSHA to provide some of these documents, pursuant to Federal record 
retention policies the majority of the records you request either have 
been destroyed or are otherwise unavailable.
    OSHA remains committed to continued cooperation with CSB, as called 
for by the CAAA and the 1998 MOU. We recognize that Congress has given 
both OSHA and the CSB important functions to perform, and that both 
agencies have roles in protecting the safety and health of employees 
who may be exposed to chemical releases. We look forward to working 
with the CSB to achieve this goal.
            Sincerely,
                              Richard E. Fairfax, Director,
                               Directorate of Enforcement Programs.
                              attachment c

     CSB Recommendations to OSHA Related to the BP TCR Investigation
------------------------------------------------------------------------
                                                        Implementation
       CSB recommendation           OSHA's response         status
------------------------------------------------------------------------
2005-4-I-TX-R5..................  Prior to the        Completed. The
1. Implement a national emphasis   issuance of this    Refinery NEP was
 program for all oil refineries    recommendation to   implemented on
 that focuses on:                  OSHA, the Agency    June 7, 2007 and
 The hazards of blowdown   was in the          is expected to be
 drums and stacks that release     process of          completed by June
 flammables to the atmosphere      developing a        7, 2009.
 instead of to an inherently       national emphasis
 safer disposal system such as a   program to
 flare. Particular attention       inspect petroleum
 should be paid to blowdown        refineries. Since
 drums attached to collection      CSB issued this
 piping systems servicing          recommendation,
 multiple relief valves;           OSHA has
 The need for adequately   implemented the
 sized disposal knockout drums     Petroleum
 to safely contain discharged      Refinery Process
 flammable liquid based on         Safety Management
 accurate relief valve and         National Emphasis
 disposal collection piping        Program (Refinery
 studies.                          NEP), which among
                                   other
                                   requirements,
                                   instructs
                                   inspectors to
                                   evaluate blowdown
                                   systems at all
                                   refineries in
                                   Federal
                                   jurisdiction. All
                                   the specific
                                   issues addressed
                                   by CSB related to
                                   blowdowns as well
                                   as others are
                                   addressed in
                                   Appendix A,
                                   Section C of the
                                   Refinery NEP.
------------------------------------------------------------------------
2005-4-I-TX-R5..................  The Refinery NEP    Completed. See
2. Urge States that administer     strongly            Section VII,
 their own OSHA plan to            encourages OSHA     Federal Program
 implement comparable emphasis     State-Plan States   Change of the
 programs within their             to adopt the NEP.   NEP.
 respective jurisdictions.                            The Refinery NEP
                                                       was implemented
                                                       on June 7, 2007.
                                                       OSHA expects that
                                                       most, if not all,
                                                       State-Plan States
                                                       will adopt the
                                                       NEP.
------------------------------------------------------------------------
2005-4-I-TX-R8
1. Strengthen the planned
 comprehensive enforcement of
 the OSHA Process Safety
 Management (PSM) standard. At a
 minimum:
------------------------------------------------------------------------
1.a.a. Identify those facilities  Prior to the        Completed. The
 at greatest risk of a             issuance of this    Refinery NEP was
 catastrophic accident by using    recommendation to   developed as a
 available indicators of process   OSHA, the Agency    result of a data
 safety performance and            was in the          review of the
 information gathered by the EPA   process of,         types of
 under its Risk Management         determining which   facilities which
 Program (RMP).                    facilities and      experience the
                                   inspection          types of
                                   strategy it         incidents PSM was
                                   should employ to    promulgated to
                                   conduct             prevent and
                                   additional          mitigate, i.e.
                                   programmed          fatal and
                                   inspections at      catastrophic
                                   PSM-covered         incidents which
                                   facilities. From    are a result of
                                   a review of         the release of
                                   OSHA's IMIS data    highly hazardous
                                   base, the Agency    chemicals.
                                   determined that
                                   petroleum
                                   refineries had
                                   experienced more
                                   fatal and
                                   catastrophic
                                   incidents since
                                   1992
                                   (promulgation of
                                   PSM) than the
                                   next 3 industry
                                   sectors combined.
                                   From this data,
                                   OSHA decided that
                                   based on their
                                   history,
                                   petroleum
                                   refineries
                                   presented a great
                                   risk and
                                   consequently the
                                   Agency developed
                                   the Refinery NEP
                                   to address
                                   catastrophic type
                                   hazards covered
                                   by PSM.
                                  OSHA believes that
                                   its PSM fatality
                                   study it
                                   conducted based
                                   on its IMIS
                                   database provides
                                   as good if not
                                   better indicator
                                   of facilities at
                                   greatest risk of
                                   catastrophic type
                                   hazards as does
                                   EPA's RMP 5 Year
                                   Accident Database.
                                  Note: OSHA is
                                   currently
                                   updating its
                                   general PSM
                                   compliance
                                   directive. This
                                   directive covers
                                   all PSM-covered
                                   processes, not
                                   just refineries.
                                   As such OSHA is
                                   evaluating
                                   possible
                                   inspection
                                   targeting systems
                                   which will put
                                   our inspectors in
                                   facilities which
                                   are at greatest
                                   risk of
                                   catastrophic
                                   releases of
                                   highly hazardous
                                   chemicals. We are
                                   evaluating
                                   leading and
                                   lagging
                                   indicators that
                                   are publicly
                                   available that
                                   would be
                                   appropriate for
                                   use as targeting
                                   tools for the
                                   Agency.
------------------------------------------------------------------------
1.b. Conduct, or have conducted,  OSHA has developed  Completed. The
 comprehensive inspections, such   and implemented,    Refinery NEP was
 as those under your Program       Petroleum           implemented on
 Quality Verification (PQV)        Refinery Process    June 7, 2007 and
 program at facilities             Safety Management   is expected to be
 identified as presenting the      National Emphasis   completed by June
 greatest risk.                    Program (Refinery   7, 2009.
                                   NEP). It contains
                                   an inspection
                                   strategy which
                                   utilizes
                                   "Inspection
                                   Priority Items"
                                   (IPI) that we
                                   feel is a better
                                   inspection
                                   strategy for
                                   conducting PSM
                                   inspections at
                                   refineries than
                                   our PQV
                                   inspection
                                   strategy. See the
                                   Refinery NEP,
                                   Section X.D.,
                                   Inspection
                                   Process for a
                                   description of
                                   the IPI
                                   inspection
                                   strategy.
                                  Note: Inspections
                                   conducted under
                                   the NEP are
                                   programmed
                                   comprehensive
                                   inspections.
------------------------------------------------------------------------
1.c. Establish the capacity to    Last summer and     Completed/On-
 conduct more comprehensive PSM    prior to the        going.
 inspections by hiring or          CSB's
 developing a sufficient cadre     recommendation,
 of highly trained and             OSHA began an
 experienced inspectors.           accelerated
                                   training
                                   initiative for
                                   its compliance
                                   officers (CSHOs)
                                   to conduct PSM
                                   inspections. In
                                   fiscal year 2007,
                                   OSHA trained 184
                                   Federal students
                                   in PSM courses
                                   with another 110
                                   estimated to
                                   complete courses
                                   by the end of the
                                   fiscal year, for
                                   a projected total
                                   of 294. Please
                                   note that other
                                   OSHA personnel
                                   who had received
                                   PSM training
                                   prior to our
                                   current
                                   initiative are
                                   available to
                                   conduct PSM
                                   inspections.
------------------------------------------------------------------------
1.d Expand the PSM training       See above response  Completed.
 offered to inspectors at the
 OSHA National Training
 Institute.
------------------------------------------------------------------------
2005-4-I-TX-R9..................  OSHA is currently   Evaluating
(CSB2005-04-I-TX-R9) 2. Amend      evaluating this     recommendation.
 the OSHA PSM standard to          CSB
 require that a management of      recommendation
 change (MOC) review be            and will respond
 conducted for organizational      to CSB when we
 changes that may impact process   have determined
 safety including:.                the Agency's
a. major organizational changes    course of action.
 such as mergers, acquisitions,
 or reorganizations;.
b. personnel changes, including
 changes in staffing levels or
 staff experience; and.
c. policy changes such as budget
 cutting..
------------------------------------------------------------------------


    [Whereupon, at 11:45 a.m., the hearing was adjourned.]

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