[Congressional Record Volume 156, Number 14 (Monday, February 1, 2010)]
[Senate]
[Pages S366-S387]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
Remembering Dr. William G. Demmert
Ms. MURKOWSKI. Mr. President, I rise today to honor Dr. William G.
Demmert, known by many as Kaagoowu (a man with the strength of a stump)
of the Tlingit ``Naasteidi'' Eagle clan--a pioneer in the cause of
improving Indian education and the Nation's leading researcher on
Native language immersion and culturally based education.
I am saddened to report that Dr. Demmert, an invaluable pioneer in
the cause of justice for Indian education, died January 19, 2010, in
Bellingham, WA, at the age of 75.
He was a man beloved by indigenous peoples of Alaska, the Southwest,
the Arctic nations, and New Zealand--especially the Tlingit and Lakota,
by Hawaiians, and by Maoris. He will be sorely missed. In particular, I
would note that we in Alaska honored and cherished Kaagoowu. Residents
of southeast Alaska say of his departure that he ``Walked into the
Forest,'' but his spirit and memory live on. He was tied to the lands
of Alaska as a fisher and gatherer; he studied and recorded the
landscapes of ancestors as a scholar and as clan member. He served
Alaska as superintendent, principal, and teacher for Klawock City
School; a teacher in Fairbanks; a professor of education at the
University of Alaska Southeast; as a Commissioner of Education for the
State of Alaska; and as a trustee of the Sealaska Heritage Institute.
Throughout his life, he united Alaskans with the Lakota and, through
his work strengthened our bonds with Indian tribes across the Nation
and with other indigenous Peoples throughout the Arctic and South Seas.
He contributed to the Nation by ensuring that the richness of our
cultural and linguistic diversity survived in the schools and in our
daily lives.
Throughout his professional life, Dr. William Demmert championed
three important education issues: 1) early learning and preschool
programs; 2) meeting the educational needs of at-risk youth; and 3)
improving the academic performance of American Indian, Native Hawaiian,
and Alaska Native children.
The focus of Dr. Demmert's research was the education of American
Indian, Alaska Native, and Native Hawaiian students. His work was
invaluable in the exploration of educational programs and schools
serving Native communities, helping educators and policy
[[Page S373]]
makers to better understand the role of traditional knowledge in
instructional practice, and assessing what works in providing a school
environment that values academic performance, citizenship, and the
traditional ways for Indian children. His research on Native language
immersion education has proven unequivocally that heritage language
acquisition strengthens critical thinking, college preparedness, and
overall academic success.
Dr. Demmert was born in Klawock, AK, to William and Florence (Allman)
Demmert. He was of Tlingit and Oglala Lakota heritage and a member of
the Demmert family of southeast Alaska, many of whom made important and
positive contributions to their communities and to Alaska at large
through their work as teachers, education researchers, and leaders.
``Dr. Bill,'' as he was known by many in southeast Alaska, lived up to
his heritage and his ancestors' examples.
Bill's experiences growing up within the Alaska education systems in
the 1940s and early 1950s ran the gamut of the kind of educational
opportunities available to young Alaska Native people at that time. He
attended a BIA school, a territorial school, and boarding schools both
in and out of State. These experiences, and the support he received
from his extended family, stayed with him and informed his view of
Indian education.
Bill was not one of those ivory tower academics with no roots in the
real world. After earning his bachelor's and master's degrees and
teaching in Washington State, Bill returned to Alaska, teaching in
Fairbanks, Craig, and Klawock, where he also served as both principal
and superintendent. He spent the 1960s learning how to educate from the
ground up.
In 1969, he and few friends attending a conference on Indian
education decided to form a new group, one they thought would represent
the unique needs of Indian educators, students, and communities. The
group they formed was the National Indian Education Association. The
NIEA has become, since that initial conversation over coffee, a
powerful voice for Indian students and educators across the country.
Soon after, Bill was asked to work with Senators Kennedy and Mondale
to help write the Indian Education Act of 1972, legislation that was
intended to respond to the U.S. Senate's report, ``Indian Education: A
National Tragedy, A National Challenge.'' Today, we know the Indian
Education Act as title VII of the Elementary and Secondary Education
Act. Thousands of Indian educators and countless children and parents
have found a voice and benefited from programs created by Bill's work
to create solutions to the tragic shortcomings in Indian education.
In 1973, having earned his doctorate in education from the Harvard
Graduate School of Education, Bill returned to the world of public
policy, working for the U.S. Department of Health, Education, and
Welfare as Deputy Commissioner of Education for the U.S. Office of
Indian Education and as Director of the Office of Indian Education
Programs at the Bureau of Indian Affairs.
After 5 years with the Federal Government, Bill returned to academia
at the University of Alaska Southeast and finished the 1980s as
Commissioner of Education for the State of Alaska. As Commissioner from
1986 through 1990, Dr. Demmert is credited with ``changing the
conversation'' on education. Today, many of the issues he championed
have become mainstream in Alaska education.
In 1991, after Dr. Demmert left office as Commissioner, President
George H. W. Bush named him and former U.S. Secretary of Education
Terrell H. Bell cochairmen of the prestigious Indian Nations at Risk
Task Force, which issued an influential report to the President and
Congress entitled, ``Indian Nations at Risk: An Educational Strategy
for Action.'' A principal writer of the report, this effort gave Bill
the opportunity to assess nearly 20 years of work and progress in the
education of Native American children. Among other elements, the report
published an Indian Student Bill of Rights. It reads:
The Indian Nations at Risk Task Force believes that every
American Indian and Alaska Native student is entitled to:
A safe and psychologically comfortable environment in
school.
A linguistic and cultural environment in school that offers
students opportunities to maintain and develop a firm
knowledge base.
An intellectually challenging program in school that meets
community as well as individual academic needs.
A stimulating early childhood educational environment that
is linguistically, culturally, and developmentally
appropriate.
Equity in school programs, facilities, and finances across
Native communities, and in schools run by the federal
government and public schools in general.
In writing and speaking about this report, he reflected upon his
grandparents', his parents', and his own education in BIA schools,
whose mission it was to assimilate Natives into the ``American way of
life and culture.'' He felt blessed that his grandfather and parents
were fluent in both Tlingit and English, and that they encouraged him
to be so as well. He reflected with sadness that so many young people
he knew were fluent in neither. He expressed concern that over the
course of his life, too many young people were educated in schools that
reflected no respect for their language and culture, and was surprised
that he survived this.
Dr. Demmert spent the remaining years of his life researching and
teaching at Western Washington University. Before retiring in 2008, he
served as a principal investigator, in partnership with Northwest
Regional Educational Laboratory and other major partners from Arizona
to Hawaii working to develop and test assessments in schools using
Native language immersion and culturally based instruction.
Not only recognized as an expert in indigenous education here in the
United States, Dr. Demmert leant his expertise to education
policymakers and practitioners of many nations, serving as cochair of a
coalition of the Ministers of Education of northern nations, including
Norway, Sweden, Finland, Greenland, the Russian Federation, Nunavut
Territory, Northern Quebec, and the Yukon Territory.
Recognized for his long experience and vast expertise in Native
education, particularly with regard to Native language instruction, Dr.
Demmert was called to testify in 2000 before the Senate Indian Affairs
Committee in support of the Native American Languages Act Amendments
Act. Bill celebrated the fact that ``Native language, the traditional
mores and cultural priorities, the importance of tribal identity and
lineage have all become higher priorities as we build a contemporary
culture and context of the school that supports Native students'
identities.'' That bill passed the U.S. Senate by unanimous consent.
In addition to his professional accomplishments, Dr. Demmert was a
good man. He had a great ability to put people at ease. He understood
his role as mentor, and built bridges between academia, policymakers,
and everyday people. He was a teacher of teachers, and a leader of
leaders.
Dr. William G. Demmert was responsible for great strides in Indian
education, and had great hopes for its future. Now, as we celebrate a
life well lived and his innumerable contributions to the education of
Indian children, we must all rededicate ourselves to ensuring that
every child among our first peoples has the opportunity to learn in an
atmosphere of respect where his language, culture, and history are
taught and celebrated, and where every Indian child can achieve his or
her highest aspirations. We must ensure that his legacy--the Indian
Education Act and indigenous language education as a means to
preserving the sacred languages of our first peoples--is kept vibrant
and meaningful for the future.
Bill Demmert, Kaagoowu, is survived by his wife of 42 years, Nora
Demmert; sons William and Philip; daughters Nora and Melanie; brothers
Lee and Ted; his sister, Justna; five grandchildren, two great-
grandchildren, and a multitude of other relatives.
On behalf of the U.S. Senate, I am proud to recognize and thank Dr.
William G. Demmert for his long years of service. I extend my
condolences and sincere sympathy on his passing to his family, friends,
colleagues, and students.
I ask unanimous consent that the attached poem and resolution written
in tribute to Dr. Demmert from the Native people of Hawai`i be printed
at the end of my statement in the Record.
[[Page S374]]
There being no objection, the material was ordered to be printed in
the Record, as follows:
Ka Makua Bill Demmert
(By Professor Larry L. Kimura)
For you is our aloha and highest regard, Bill Demmert,
A close friend, a teacher and a champion of Native peoples.
You worked for laws to secure the wellbeing of our Nations,
Providing direction from the essence of our ancestors for a
vibrant education.
You are with us, the progeny, the advocates for the language
of our homeland,
For you are a soaring hawk on a tranquil day in the clear sky
over these islands,
Coming to settle upon a branch of that venerable `ohi`a tree
of mountains.
Your memory and good deeds shall live on in our hearts.
Nou ko makou aloha e ka makua Bill Demmert,
He makamaka, he kumu a he me`e nui o na `oiwi.
Nau i huli na kanawai e pa`a ai ka pono o na lahui,
I mau na wehiwa kupuna ke ka`i o ka na`auao ola.
Me makou `oe, na pua, na lehua pai `olehalo o ka `aina,
He `io kikaha o ka la malie i ka la`i o na Kai `Ewalu,
A kau mai i ka la`au he `ohi`a kumakua o ka mauna.
E pulama me ka ho`omana`o mau `ia na pono au.
Adopted on January 22, 2010 by the Senate of Ka Haka `Ula O
Ke`elinolani College of Hawaiian Language, University of
Hawai`i at Hilo to be included with its resolution in memory
of Dr. William Demmert.
For Dr. William G Demmert Jr./unuhi `ia na Kaliko (v1.1)
Acting together as a Committee of Aloha, we, its
undersigned members, do herewith extend to you our aloha and
with heartfelt sorrow express our collective grief at the
announcement of loss that has so recently reached us and
informed us that the Wise Tlingit, Oglala Sioux Warrior, the
mortal, Dr. William G. Demmert Jr., has fallen unto his
carefree sleep as his last breath left him, and has departed
to travel on that lonely path from which one does never
return. That same grief has affected all of Hilo's Hawaiian
language consortium partners, who now stand together
shouldering this burden of sadness.
Whereas the aforementioned Dr. Demmert was a native of that
same land where his Tlingit ancestors' piko, or umbilical
cords, lie secreted away in the birthsands of Klawock, the
place known well for the running salmon, a fish so favored by
Hawaiians; and whereas he was an esteemed descendent of the
nation from which came the two great logs that are now at sea
as the robust hulls of the canoe Hawai`illoa; and
Whereas the aforementioned Dr. Demmert was, even in his
early years, and following in his father's footsteps, a child
thirsty for knowledge, always keen to drink heartily from the
many rippling tributaries of instruction until he in the
fullness of time became one of those in the first group of
Native American students to graduate with a doctorate degree
from Harvard University in 1973; and
Whereas the aforementioned Dr. Demmert was one of the
founding members of the association put together to fight for
the education of Native Americans, the National Indian
Education Association, in 1970; and
Whereas the aforementioned Dr. Demmert became a friend to
the Hawaiian people in the year 1993, for his efforts to
improve the status of the many native languages of the United
States including the Hawaiian language; and
&*COM003*21Whereas the aforementioned Dr. Demmert was both an
advisor and confident for us as we continued to work through
the multitude of tasks involved in the revival of the
Hawaiian language; including here his role as a co-defender
of the plans and resources of the `Aha Punana Leo; his role
as a co-architect of the foundational P-20 framework upon
which the Hawaiian language college, Ka Haka `Ula o
Ke`elikolani, was built--his hands digging in the very same
soil as did our own--; and as co-investigator as we examined
ways to improve the abilities and the standing of our young
Hawaiian language speakers at Nawahiokalani`opu`u Hawaiian
Language Immersion School;
Therefore upon taking all of this into consideration, we
resolve that we are united with you, we as Hawaiian language
friends and families of the `Aha Punana Leo, Ka Haka `Ula o
Ke`elikolani, and Ke Kula `o Nawahiokalani`opu`u, now and
together alongside you as we enter this place of sadness at
the loss of the man whom we now praise to the highest.
Furthermore, we have resolved that we shall be standing as
you do in spirit and in prayer, packed shoulder to shoulder
against each other, coming from all corners of our land, in
order to best send our dearly departed friend to meet the
Holy Trinity in the heavens.
We have also together resolved that our loving embraces
will encircle and warm the bereaved family which has
experienced such loss at the recent departure this beloved
man took as the start of his infinite journey.
And finally, we resolve that our prayers, wishes, and
blessings shall go hand in hand with those of the Episcopal
Church in Bellingham on the 25th of January, and so too with
the Tlingit of Craig, Alaska, in their February ceremonies:
that the man may return to the land of his birth and
ancestors; that his hair may once again be blown by the soft
breezes of that area; that he may once again inhale the fresh
cool fragrances so yearned for and held in fond memory; and
that he may heed the distant call of his ancestors to return
to be with them in the peaceful calm of love's warm embrace.
. . . life appears as does a whisp of steam, but is so
quickly dissipated . . .
With love and aloha everlasting, those of the Fellowship of
Hilo, Hawai`i Island of the Verdant Green Back.
The ACTING PRESIDENT pro tempore. The minority leader is recognized.
the budget
Mr. McCONNELL. Mr. President, this morning, we received the
administration's budget for the next fiscal year. While there are
plenty of issues raised by this budget, the fundamentals are clear:
this budget is more of the same--more spending, more taxes and more
debt.
I think everyone can agree that last year's budget spent too much.
With the trillion-dollar stimulus bill and massive increases in
optional spending, the administration and Democrats in Congress simply
spent too much and took us into record territory. But the
administration assured us that it was an anomaly--that we just needed
to get through the year and then we would get serious about our
spending in 2010. Fiscal hawks on the other side of the aisle told us
the same thing every time we raised the issue.
But now they have produced yet another massive budget filled with
even more spending than last year's record totals. The President
proposes to increase spending by another $100 billion--despite having
already increased the size of the Federal Government to unprecedented
levels. Even though the administration claimed that the current funding
was unique due to the economic crisis, they show no sign of slowing
spending.
And while spending is going up, taxes are going up even faster. Taxes
on Americans will increase by over $400 billion--nearly 20 percent--
next year alone, with no improvement in sight. Does anyone truly
believe this is a good time to raise taxes on job creators or anyone
else?
This budget provides a startling figure that should stop us all in
our tracks. According to the administration's budget, the interest on
the Federal debt is expected to be nearly $6 trillion over the next
decade. We have all heard about interest-only loans, but this is the
equivalent of an average of $600 billion in interest every year. That
is an astonishing number.
In fact, in just 4 years the administration predicts the Government
will have to spend more just to pay interest on the Federal debt than
it spends on the Departments of Agriculture, Commerce, Education,
Energy, Health and Human Services, HUD, Interior, Justice, Labor,
State, Treasury, and the Corps of Engineers, Environmental Protection
Agency, GSA, NASA, National Science Foundation, Small Business
Administration and the Social Security Administration--combined.
In just 4 years, the interest the government will have to pay on our
Federal debt will be more than it spends on the Departments of
Agriculture, Commerce, Education, Energy, Health and Human Services,
HUD, Interior, Justice, Labor, State, Treasury, and the Corps of
Engineers, EPA, GSA, NSA, National Science Foundation, Small Business
Administration, and the Social Security Administration--combined.
The Senate will have an opportunity to write a new budget this year.
Our leader on this issue, Senator Gregg, will have much more to say on
the matter as we work to do what so many Americans are doing, and that
is to get our budget in order. And I will have much more to say on the
individual pieces of this blueprint, including the administration's
priorities on our national and homeland security. But now it is crystal
clear that this budget is more spending, more taxes, and more debt--
more spending, more taxes, more debt. Anyone listening to the American
people knows this is not what they support, it is not what our country
needs, and it is not the way to grow good jobs.
Mr. President, I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Minnesota.
[[Page S375]]
Mr. FRANKEN. Mr. President, I rise today to urge my colleagues to
support the nomination of Patricia Smith to be Solicitor of Labor. Ms.
Smith is a well qualified, might I say exemplary, nominee and I
enthusiastically support her confirmation.
Most recently, Ms. Smith served effectively as New York's
commissioner of labor, frequently bringing business leaders, workers
groups, and government officials together at the table. She has earned
the support of business groups in her State through her willingness to
engage in an ongoing working partnership. She has earned the support of
labor groups in her State by upholding and enforcing New York's labor
and workplace laws.
Ms. Smith not only has support from labor and business but bipartisan
support as well. The entire New York congressional delegation signed a
letter endorsing her nomination. She has worked under both Democratic
and Republican administrations during her long tenure in public
service. Republicans and Democrats alike acknowledge her willingness to
engage both sides of the aisle and to do so effectively.
Most important to her position at the department of labor is her
strong track record of protecting workers. She has demonstrated that
all workers, regardless of wage, occupation, or gender, deserve the
fullest protection of New York's labor laws. As commissioner of labor
there, she targeted enforcement toward the industries and geographic
areas most susceptible to abuse and managed to increase compliance
among employers and raise awareness about recurring workplace problems.
For example, Ms. Smith has led New York's Department of Labor in
shutting down exploitative sweatshops. Last year, her department's
investigation turned up an instance where sweatshop operators were
requiring employees to fraudulently use two sets of timecards, thereby
avoiding paying overtime. Workers were often required to work 80 hours
a week, often working 7 days a week, and then were coached to lie to
labor department investigators. These employers who ignore workplace
laws cheat taxpayers out of money. The taxpayers are forced to make up
the difference when taxes on overtime wages are not paid, not to
mention that this treatment of workers is both illegal and immoral. Ms.
Smith worked to fix these problems.
Based on her exemplary work, Ms. Smith has won support from countless
civil rights groups, including the National Conference on Civil Rights,
the National Women's Law Center, the American Association of University
Women, and the Business and Professional Women's Foundation.
Unfortunately, there are some who have been trying to delay Ms.
Smith's confirmation. Further delay is detrimental to America's
workers. The Department of Labor has been deprived of a critical member
of its leadership team. We should see that it is filled as soon as
possible. The Solicitor of Labor leads an office of over 600 people who
work to enforce 200 of our Nation's labor laws. The Solicitor also sets
long-term planning strategy, participates in shaping legislative
policy, and interprets legislative language. These are all essential
elements to the full functioning of our Department of Labor. Delaying
her confirmation is a disservice to the American workforce.
For these reasons, I urge all of my colleagues to support the
nomination of Patricia Smith to be Solicitor of Labor.
Mr. President, I yield the floor.
Mr. HARKIN. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Kaufman). The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. ISAKSON. Mr. President, I ask unanimous consent the order for the
quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. ISAKSON. Is the current business the nomination of Patricia
Smith?
The PRESIDING OFFICER. The Smith nomination is before the Senate.
Mr. ISAKSON. Mr. President, I reluctantly rise to oppose moving
forward with the nomination of Patricia Smith. I do not do so easily
nor happily because I believe the President of the United States has
the right to make appointments, and I think within reason those
appointments should be confirmed. The question before the Senate, with
this nomination, is not whether wage and hour laws should be enforced.
They should be.
The question is not whether Ms. Smith has done a good job in New York
State because Republicans and Democrats said she has. The question is
whether the Senate will tolerate a nominee intentionally misleading a
standing committee of this body. My guess is the Democratic majority
would not have stood for that under the previous administration, and we
should not today.
Unfortunately, Ms. Smith has been consistently evasive in response to
numerous questions from members of the committee, specifically with
regard to a program called Wage Watch, which deputized private activist
groups to inspect small businesses to look for and seek to find wage
and hour law violations.
For 5 years I have served as the senior Republican on the Employment
and Workplace Safety Subcommittee that maintains the oversight
responsibilities over the Department of Labor. I am a vigilant,
longtime supporter for fair and fully enforced wage-and-hour laws.
The program in question, Wage Watch, is a program that empowered pro-
union special interests to enforce the myriad of labor laws that cover
small employers. This approach is simply inappropriate. It can at worst
be entrapment and at best an improper attempt to enforce the law. One
can imagine the outcry if the Minutemen who patrolled on their own on
our border to the south had somehow been deputized by our immigration
department under the last administration. There would have been
outrage, and there should have been.
The ``Wage Watch'' program specifically targeted small- and medium-
size businesses. In discussing the success of the program, Ms. Smith
bragged that one business was closed as a result of this program,
telling the New York Times that she had ``made the determination that
it would be better for workers to lose their jobs than to continue
working there.''
Ms. Smith stated the program would not be used for union
organization; however documents obtained by the HELP Committee from the
New York State Labor Department and a union newsletter show plans
specifically to use the program for union organizing throughout New
York.
Worse than the program itself was Ms. Smith's refusal to provide the
committee with accurate and complete information about the program. In
April of 2009 I wrote to Ms. Smith to ask if she foresaw ``the
possibility of instituting similar efforts on a national level.'' On
May 12 she replied in writing that she had ``not considered or
advocated expanding it across New York to other parts of the country,
to the Federal level or to other laws.'' However, documents procured by
the HELP Committee revealed that Ms. Smith wrote in January 2009, 4
months before the letter I just mentioned, that she would like to
double the number of organizers involved, ``while laying the foundation
to expand the program to various parts of Long Island and upstate New
York.''
She continued:
We're creating a movement here, and the more the merrier.
Clearly she had both considered and advocated expansion of the
program, thus her statement to me was inaccurate. Her deceit on this
issue forced me to write the President on September 10, 2009, and
request that Ms. Smith withdraw her name. I asked the President that a
new nominee, one who would both look out for the interests of workers
and be honest with the Congress, be nominated.
We now see a similar program like Wage Watch, now called We Can Help,
developing in the U.S. Department of Labor. In fact, one of the pro-
union special interest groups Ms. Smith deputized to implement her New
York program, the so-called National Employment Law Project, has been
chosen by Secretary Solis to assist in the enforcement of Federal
workplace laws.
On a personal note, I ran a business for 22 years, and it was a small
business. I employed golf course superintendent workers, I had
independent contractors who were real estate agents, I did a lot of
construction where we were subject to the Americans with Disabilities
Act. We were
[[Page S376]]
subject to all types of labor laws. I vigorously made sure that
whatever the case might be, we worked hard to see to it we obeyed not
only the letter of the law but the spirit of the law.
But I, too, in my experience, from time to time encountered the kind
of organizations Ms. Smith used in ``Wage Watch.'' They tried to entrap
me and punish me. I think the proactive enforcement of labor law should
be vigilantly looking for violations and vigilantly looking for
correction, not vigilantly looking for someone--as in the case of Ms.
Smith and the businesses in New York--you can put out of business and
cost the jobs of many employees of that small business.
As such, I reluctantly rise today to oppose the nomination of Ms.
Patricia Smith.
I yield the floor and suggest the absence of a quorum. I withdraw the
request for a quorum call.
The PRESIDING OFFICER. The Senator from Washington is recognized.
Mrs. MURRAY. Mr. President, I am very pleased to rise in support of
President Obama's nominee to serve as Solicitor of Labor, Patricia
Smith. I am very confident that she is the right person for this
critical job. The work she is going to do to protect our workers is
more important now than ever before.
American workers are facing incredible challenges today. They are
struggling with record unemployment and a devastating economic crisis.
They need and they deserve strong leaders in the Department of Labor
who are passionate about public service and committed to fighting for
them.
The Department of Labor is charged with a critical mission in our
Nation's government. Their role is to foster and to promote the welfare
of America's workers by improving their working conditions, advancing
their opportunities for profitable employment, protecting their
retirement and their health care benefits, helping employers find
workers, and strengthening free collective bargaining. I believe during
these challenging economic times it is absolutely critical that the
Department has the leadership it needs to make those goals a reality.
That is why I was very pleased that President Obama nominated such a
strong candidate for the position of Solicitor of Labor.
Patricia Smith has been the Commissioner of the New York State
Department of Labor since 2007. She is cochair of the New York State's
Economic Security subcabinet, and she oversees 3,700 employees in 80
offices, with an annual budget of $4 billion.
For the previous 20 years, Tricia worked in the Labor Bureau of the
New York Attorney General's Office, and she served on the Obama
administration's transition team for the Department of Labor.
I have received many letters of support for Patricia Smith from
people who admire her work, from people she has worked with, and from
workers she has helped. I want to take a moment this afternoon to read
some excerpts from some of those letters because I believe they do
demonstrate Patricia's broad support and why she deserves to be
confirmed by the Senate.
I have received a letter of support from the CEO of the Plattsburgh,
NY Chamber of Commerce. He knows Patricia well. He said:
Patricia Smith has been an outstanding partner as
Commissioner of the New York State Labor Department and will
be an outstanding solicitor for the U.S. Labor Department. We
strongly encourage her earliest possible confirmation by the
Senate.
That was the CEO of the Plattsburgh, NY Chamber of Commerce.
I also heard from the United States Women's Chamber of Commerce. They
said:
After learning of Ms. Smith's qualifications, expertise,
and the laws she has worked to uphold, I can clearly see that
she is someone who would work with conviction to enforce the
laws of the United States of America. Additionally, I am
impressed by her out-of-the-box thinking in creating programs
that will keep jobs. We especially need these attributes in
this time of economic challenge.
I also received a letter from a group of professors and scholars of
labor and employment law and labor relations, from over 50 scholars of
highly respected institutions across the country such as the Georgetown
University Law Center, Columbia Law, Thomas Jefferson School of Law,
Yale Law School, and Cornell University School of Industrial and Labor
Relations. They too urged speedy confirmation, saying that Tricia has:
consistently demonstrated the highest integrity and
commitment to ethical standards. She is experienced,
intelligent, thoughtful and energetic. We believe this is
exactly what the U.S. Department of Labor needs in a
Solicitor. Once confirmed, she will be among the best
Solicitors of Labor the Department has known.
Her support transcends party lines. Former New York Attorney General
Dennis Vacco, a Republican, had this to say about his former employee:
Patricia Smith has proven herself as one of the foremost
experts in the nation in the realm of labor law, which is why
President Obama saw fit to nominate her. . . . She was an
asset to the New York Attorney General's Office and I am
confident. . . . She will be an asset to the Department of
Labor.
I am here this afternoon as Chair of the Subcommittee on Employment
and Workplace Safety. I know the challenges American workers are facing
right now. That is why they deserve a Solicitor of Labor such as Tricia
Smith who will fight every day to protect them. If she is confirmed as
the Department's top legal counsel, she will have the profound
responsibility of enforcing more than 180 Federal laws and managing
more than 450 attorneys nationwide.
She will be responsible for defending the Department in litigation as
well as providing legal advice and guidance on nearly every policy,
legislative, regulatory, and enforcement initiative of the Department.
Most importantly, she will be responsible for defending the rights of
workers when they are not able to speak for themselves.
Tricia has a big job ahead of her, but we need to act now to allow
her to get started. We owe it to our country's workers to have a
confirmed Solicitor of Labor in place. I have had a number of
conversations with Tricia and I wanted my colleagues to know I am
confident she is highly qualified and very eager to get to work. I will
be voting with confidence to confirm Patricia Smith. I urge my
colleagues to do the same.
I yield the floor.
The PRESIDING OFFICER. The Senator from Wyoming is recognized.
Mr. ENZI. Mr. President, I rise in opposition to the nomination of
Patricia Smith to serve as the Solicitor of the Labor Department. I
have got to tell you, this is my 14th year in the Senate, and this is
the first time I have taken the lead in opposition to a nomination that
has come through my committee.
I take this very seriously. When the Founding Fathers drafted our
Constitution, they were very concerned about concentrating too much
power in any branch of the government. That is why they carefully
crafted the system of checks and balances to ensure that each branch of
the government has a method of checking the work and operations of the
other.
Here in the Senate, one of our great checks has been our duty to
provide our advice and consent to the nomination of the executive
branch. That is a responsibility I take seriously. That compels us to
ensure that nominees who were brought before us are qualified and they
have presented their credentials to us completely, thoroughly, and
honestly.
Each nominee must pass the vetting process to ensure he or she
possesses the strength of character and the experience to ensure that
the public can trust in his or her ability to carry out the duties of
the office for which they have been nominated. My Senate colleagues
know I rarely oppose Presidential nominees. I believe the President is
ultimately responsible for the conduct of his administration and is
also answerable to the Nation's voters, so he has the right to select
the members of his team, up to a point. That is where the advice and
consent comes in.
Before I elaborate on her nomination, I do want to recognize her
accomplishments as the Commissioner of Labor in New York and the
commitment she has shown to serving the people of New York. Her prior
service would ordinarily have earned her our support and make her a
bipartisan choice to lead one of our most important offices in the
Labor Department. Unfortunately, there are other considerations which
must be taken into account in reviewing her credentials for this
position, which I believe disqualify her for this position. I have
released a ranking
[[Page S377]]
member's report detailing my concerns with Ms. Smith's nomination and
posted them on the HELP Committee's Web site. Today I will explain the
factual inconsistencies between what Ms. Smith said before the HELP
Committee, for the record, compared to what is recorded in the official
documents I have received from the State of New York.
The Solicitor of Labor is an important role. He or she is the chief
legal officer of the U.S. Department of Labor, the third ranking
official in that Department, General Counsel to the Secretary, and is
asked to manage one of the largest legal offices in the Federal
Government, with more than 400 attorneys serving on the Solicitor's
team.
Unlike most legal offices in Cabinet agencies, the Solicitor of Labor
has independent litigating authority from the Department of Justice and
exercises that authority on behalf of the Department of Labor. The
Solicitor is also responsible for ensuring that all stakeholders,
including small businesses, are treated fairly.
In the course of conducting a thorough review of Ms. Smith's
background and qualifications, the committee discovered a program in
New York State called Wage and Hour Watch that she announced in January
of 2009. The program was established to recruit and train union
organizers and public interest groups to leaflet businesses with
compliance literature and to interview employees in an effort to find
violations of the law that could be used to bring State actions against
businesses.
As part of the program, Ms. Smith committed to providing the groups
with a direct pipeline to senior State enforcement personnel to report
any violations found. Participants were given official cards by the
State of New York identifying them and their group as being part of the
program. Here is a copy of one of the cards. You will find down there
across from ``date'' that this is for a 2-year period starting on
February 7, 2009. You got one of those cards after 1 day of training.
According to the New York State Department of Labor's press release
on January 26, 2009, Wage and Hour Watch is:
modeled in part after Neighborhood Watch, [the program] will
help promote labor law compliance through formal partnerships
between the New York State Labor Department and community
groups
and
provide ordinary people with a formal and systematic role in
the fight against wage theft.
That sounds good, except Neighborhood Watch was set up so that people
would notify law enforcement authorities of things they thought were
strange and should be looked at. They did not have permission to go
into people's homes and investigate unannounced.
The release also identifies the six groups, two labor unions and four
community organizing groups, chosen by Ms. Smith for the program and
explains that they have been active in labor issues and referred cases
to her agency.
Upon the conclusion of my remarks, I will ask unanimous consent that
all documents referenced be made part of the Record.
In addition to her May 7 confirmation hearing, Ms. Smith also
participated in a committee staff interview and answered questions for
the record. In her responses, Ms. Smith suggested the committee seek
relevant documents from New York, which I did obtain through a Freedom
of Information request.
My staff reviewed the several thousand pages of documents eventually
produced by New York, and we sent Ms. Smith some additional questions
that she answered in late July, and former Chairman Kennedy sent
questions that she answered in September.
My concerns with the nomination relate primarily to four areas where
Ms. Smith provided at best incomplete and factually inaccurate
testimony to the HELP Committee, both during her May confirmation
hearing as well as in the followup questions.
The first inconsistency I wanted to highlight is with Ms. Smith's
plan to expand this program. In the May 7 hearing, Ms. Smith was asked
by Senator Burr about her plans to expand Wage and Hour Watch. She
responded that there were no such plans.
His question was: Have you had any discussions relative to your being
at the Department of Labor that would extend Wage Watch in any fashion
on a Federal level?
Ms. Smith said: No, we have not had any discussions of that. I have
not had any discussions with the Department of Labor in New York about
whether we would extend it across New York State. Again, it is a pilot
program which we just did in January. We specifically limited it to a
small number of groups, and we limited it to a small geographic area.
We limited it to basically New York City, Long Island, the lower Hudson
Valley, so we could assess what the successes would be, what the
problems would be.
On May 13, 2009, Ms. Smith made a similar statement in writing in
response to three separate questions from committee members, including
me. She said:
This initiative was designed as a local model in a limited
geographic area in a state, for a particular issue under a
particular statute. It was not designed for other laws or to
be used on the Federal level. Until the pilot is completed
and evaluated--
As she said up here--
I would not advocate expanding it to other areas in New
York, to other areas of the country, to the Federal level or
to other Federal or state laws.
That is what she said. The problem here is that many documents,
including press releases, Ms. Smith's talking points for her own
speeches, and e-mails she was copied on, show there were plans in place
to expand the program in virtually every instance, many with June 2009
deadlines. Documents show that in April 2009, the State was maintaining
lists of possible new entrants into the program.
I have a copy up here of groups that were being solicited with the
Wage Watch expansion, and that is in April of 2009. That is before she
testified. The State even sent out applications to a number of groups
to join Wage and Hour Watch during May, when Ms. Smith had just
testified to the HELP Committee there were no plans to expand the
program.
This was the plan to expand the program:
Dear friend, we are preparing to expand Wage and Hour Watch
beyond the original groups in the pilot program. We are
writing to you because you have expressed an interest in
becoming or joining a Wage and Hour Watch group, as are a
number of other organizations and individuals.
Later on it says:
In order to allow us to plan for the next stage of the
program, please return the completed application form with
the reference letter by Monday, June 15.
The records show that Ms. Smith's department also planned to expand
the scope of Wage and Hour Watch into investigating occupational safety
and health matters from day one. That is not the original intent. The
original intent was a Wage and Hour Watch group. But we can show where
it was intended to investigate occupational safety and health matters.
Of course, originally it was not sold as enforcement of wage, it was
sold as an educational program. But it changed to enforcement,
infiltration, and spying, and then added investigating occupational
safety and health matters.
In a January 15, 2009 e-mail from Ms. Smith to dozens of staff
announcing the program, she states:
After 6 months, once we have had the chance to get the
program rolling, we would like to expand to other groups
(particularly upstate), including community based
organizations, student groups; churches and other faith-based
organizations and labor unions. . . . This is an exciting new
initiative and one which we could potentially replicate
elsewhere in the country.
In the press release issued to announce the program, Ms. Smith's
agency states:
After a six-month pilot period . . . , the Labor Department
will begin seeking additional groups who wish to participate
statewide. . . .
The release also directs the public to contact her agency by
telephone or through a dedicated e-mail address to establish additional
New York Wage and Hour Watch groups. In an article, the New York Times
noted the plans for expansion. They said:
After the first experiment in New York City and on Long
Island, the Labor Department will seek additional groups for
the program. The groups must be nongovernmental and nonprofit
and can include religious organizations, student groups,
labor unions, business associations and neighborhood groups.
[[Page S378]]
Here is a sampling of other program expansion activities before Ms.
Smith testified on May 2009: A December 1, 2008, e-mail to Ms. Smith
listed potential expansion groups in upstate New York. A February 2,
2009, e-mail from Ms. Smith's deputy to two individuals explained how
to set up a Wage and Hour Watch group. A February 18, 2009, e-mail from
Ms. Smith's deputy to an outside group noted plans to expand the
program. A February 23, 2009, e-mail from Ms. Smith's deputy
memorialized a meeting with the six pilot groups and included a
paragraph on training in June in both New York City and upstate for
purposes of expansion. An April 9, 2009, e-mail exchange among Ms.
Smith's subordinates listed several groups for expansion.
After Ms. Smith testified and answered written questions in May
denying expansion plans, her department continued to promote expansion
and looked to recruit new members. For example, a May 15, 2009, e-mail
to over 20 outside individuals requested that application forms be
submitted by June 15; a June 1, 2009, e-mail to outside parties
announced preparations to expand Wage and Hour Watch; a June 3, 2009,
e-mail from an outside public interest group offered over 40
individuals the opportunity to join Wage and Hour Watch; a June 9,
2009, formal application was submitted to Ms. Smith's department by the
Laborers International Union of North America's Organizing Fund to
conduct wage watch activities in the construction industry.
Contrary to Ms. Smith's responses to written questions that the
program was only about wage and hour laws, her subordinates expanded
the program to occupational safety and health enforcement. It says:
Thank for your offer to insert something about safety and
health enforcement in the training the DOL is conducting on
Saturday. Unfortunately, given the late notice and training
schedules and grant deadlines, we will not be able to put it
together by Saturday. However, what we would like to do for
you is to announce that we will contact each of the
participating groups and offer their organization a training
on what safety and health issues they should be looking for
while conducting the oversight for wage and hour issues. If
that works for you, it would be great for us.
It wasn't supposed to be oversight. It was supposed to be education
so that people would know what they were supposed to get and be able to
take the kinds of actions that individuals could take. But you can see
it has changed dramatically.
An e-mail from the New York Committee on Occupational Safety and
Health, a safety and health public interest group closely tied to
organized labor, sent to Ms. Smith's deputy on February 6, 2009, notes
that:
We will contact each of the participating groups and their
organization training on what safety and health issues they
should be looking for while conducting the oversight for wage
and hour issues.
In response, Ms. Smith's deputy solicits a list of things to train
wage and hour watchers to look for, and they respond, as well as
suggesting that the groups take pictures of working conditions they
believe unsafe. Sounds like an investigation.
Ms. Smith's own public pronouncements contradict her testimony to the
Senate. A May 19, 2009, National Public Radio article quoting Ms. Smith
and her deputy states:
New York's Wage Watch is just a few months old, and
officials say it is too soon to measure success. But the
pilot program is set to expand across the state this summer.
A set of talking points for Ms. Smith to deliver to an upstate
coalition group sometime after January 2009 but before she testified at
her confirmation hearing states that the program ``will'' be expanding
and solicits volunteers.
We have it here:
They are currently expanding with six distinct labor unions
and advocacy organizations in New York City and plan to roll
it out across the state in the coming months and years. We
will be expanding this program and when it does come upstate,
we will need the help of many of you to roll it out.
There also does not appear to be any document that supports Ms.
Smith's statement that there were no plans for expansion. Indeed, I am
told the public documents actually contain more than 50 specific
references to expanding the Wage and Hour Watch Program. All of these
red tabs are references to expanding the program. All of the red tabs
talk about expanding the program. It doesn't look incidental.
Concerns about the factual inconsistencies in Ms. Smith's testimony
are not solely held by the minority. Former Chairman Kennedy's staff
submitted questions about the expansion of the program. Ms. Smith
responded at the time of the confirmation that she had had ``no
discussions about a potential expansion with anyone, other than
generally indicating that if it were proved successful, my goal would
be to expand to it other areas of New York.''
Despite all of this evidence, Ms. Smith's defenders have claimed that
she misspoke and that she delegated a small program to a deputy.
However, the documents show Ms. Smith herself promoting expansion and
recruiting members in her own speeches and media interactions.
In addition, I question Ms. Smith's ability to lead the Solicitor's
Office if her subordinates, including her deputy, were allowed to act
outside of their authority as suggested by earlier explanations. It is
difficult to see how it would be appropriate to blame a breakdown
between Ms. Smith and her deputy for inaccuracies regarding program
expansion plans. Ms. Smith worked with her deputy for more than 5
years. When Former Governor Spitzer appointed Ms. Smith to the New York
Labor Department, news articles noted that she brought her deputy and
protege with her. I find the explanation even more surprising because
of Ms. Smith's pedigree. Her prior boss, former attorney general and
Governor Eliot Spitzer, was known for his aggressive prosecution of
corporate officials, including some who were accused of not overseeing
their subordinates properly. I find it unlikely that the State of New
York would accept ignorance as an excuse if an executive on Wall Street
tried to use it as a defense. Why should we accept a similar excuse
now?
A little more information about her background and the Spitzer
education program and her participation there. Some have also suggested
that this program was reasonably beneath Ms. Smith's notice, noting
that her agency has an $11 billion budget with almost 4,000 staff. If
confirmed, Ms. Smith would be in charge of legal compliance for a
department whose budget projects spending 10 times what she oversaw in
New York, $104.5 billion in 2010. Leaving aside the extensive
documentation showing she was heavily involved in this program, I ask
my colleagues, why would we consider expanding her responsibility
tenfold if she was unable to oversee her subordinates effectively in
New York?
Former President Harry Truman had a sign on his desk that read ``The
buck stops here'' to show that responsibility for the conduct of
subordinates ultimately rested with him. Ms. Smith ought to own up to
the responsibility that ultimately rests with her.
With regard to the second inconsistency, Ms. Smith stated that the
program was developed internally and only then did the New York
Department of Labor approach or recruit outside groups. However, e-
mails obtained by the committee directly contradict this statement,
instead showing much of the driving force and even legal research for a
program model came from organized labor and its allies. Here are a
couple of examples: an April 16, 2008, e-mail from Mr. Jeff Eichler,
coordinator for retail organizing projects for the Retail Wholesale and
Department Store Union, RWDSU, to Ms. Smith's deputy regarding an
``Enforcers'' program, with four pages of attached research explaining
potential models for their ``concept of wage and hour enforcers;'' an
August 18, 2000, e-mail in which Ms. Smith's deputy responds to Mr.
Eichler's ideas that the State consider allowing participants to
infiltrate businesses that are part of the program.
Most disturbing, however, to me about this inconsistency is the fact
that Ms. Smith admitted in her response to a question that she
apparently saw the e-mails contradicting her testimony in July but did
not correct the problem until directly asked in September about this
issue by majority staff; that is, 2 months later.
A third inconsistency is that Ms. Smith also characterized Wage and
Hour Watch as an educational program in testimony. However, the record
shows it was designed and intended to be enforcement from the very
beginning, with the union organizers and
[[Page S379]]
community organizer participants serving as amateur investigators and
informants. The very first documents discussing the program describe
potential participants as ``community enforcers.'' I refer to the
previously introduced April 2008 e-mail from union official Mr. Eichler
describing this as an enforcers program and a November 28, 2008, e-mail
from one of Ms. Smith's subordinates disseminating draft training
material stating:
The one day session [of training] will not turn enforcers
into labor law experts but will assist them in identifying
labor law violations and make the referral of greater value.
The ``role of community enforcer'' is where we will have to
come up with original material . . .
Notably, Ms. Smith is personally copied on that e-mail.
Ms. Smith's own words, her subordinates' internal and public
statements and deliberations, the media, and the groups involved in the
program all emphasized and portrayed wage and hour watch as an
enforcement from its very beginning. It was only when she was
questioned by HELP Committee members about the program that Ms. Smith
chose to portray the program's substance as educational in nature.
Quite a difference.
Finally, Ms. Smith stated that the two unions that were selected for
the pilot program, United Food and Commercial Workers Local 1500 and
RWDSU, were told not to use the program for organizing. However, the
agreement created by Ms. Smith and entered with the unions and special
interest groups specifically allows the pilot groups to make use of
information gathered for ``community organizing,'' which Ms. Smith also
admitted in response to a written request.
The committee has a copy of the United Food Commercial Workers, UFCW,
Local 1500 work plan sent to Ms. Smith's deputy which also directly
contradicts Ms. Smith. The plan states that the union intended to use
wage and hour in ``all of our organizing campaigns,'' including those
outside their designated Wage and Hour Watch area. UFCW Local 1500 also
published plans to target nonunion workplaces as part of the program in
its publicly available union newsletter.
It is difficult for me to believe Ms. Smith and her department did
not know union organizing was intended by those joining the pilot
program. All the participants and signatories from two labor unions
involved appear to be employed as full-time organizers. Other
individuals and groups purely responsible for union organizing also
applied to join when the program was expanded.
It is clear that Ms. Smith's testimony and responses to follow-up
questions are repeatedly contradicted by documents I received from the
State of New York. It is particularly troubling that inconsistent
statements to the committee were in each instance an attempt to
downplay concerns about the Wage and Hour Watch Program raised by
Republican members. At best, the inconsistencies in her testimony lead
me to question her ability to interact with Congress in a candid manner
and manage the enforcement of labor laws by the Office of Solicitor in
an evenhanded and fair manner.
I have tried for months to resolve these concerns. In August, I asked
President Obama to withdraw Ms. Smith's nomination and offered my
assistance in ensuring a replacement would be confirmed quickly. I also
joined all my nine Republican colleagues on the HELP Committee in
urging Chairman Harkin to refrain from approving this nominee in
committee and made the same offer to him of assistance in ensuring a
qualified replacement being given swift review and confirmation. I
mentioned I joined all nine. As to a couple people on there, I do not
know that they have ever opposed a Presidential appointment.
Because the President and the majority did not consider it a problem
that Ms. Smith provided factually inconsistent information to the
Senate, I am forced to insist on a full debate on her nomination.
Giving my consent to a Presidential nominee is not something I take
lightly, even with the benefit of the doubt I have always given to the
candidates sent over to us by the White House. However, the integrity
of the Senate committee process and the responsibility of advice and
consent demands honest and accurate testimony when the witnesses come
before us.
For that reason, I have lost confidence in Ms. Smith's ability to
manage the Solicitor's office. I urge my colleagues to oppose this
nomination, and I ask unanimous consent that documents referred to in
my speech be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Labor Department Initiative Empowers Ordinary People to Join the Fight
Against Wage Theft
New York Wage Watch, the Only One of its Kind in the Nation, to Roll
Out in New York City and Long Island
Albany, NY (January 26, 2009).--At a press conference in
New York City, State Labor Commissioner M. Patricia Smith
today announced the formation of New York Wage Watch, a new
tool in the fight against labor law violations in New York
State. New York Wage Watch will focus on a variety of illegal
practices, jointly referred to as wage theft, including
payment of subminimum wages; nonpayment of wages; failure to
pay overtime; tip stealing; and other such violations.
Modeled in part after the Neighborhood Watch program, New
York Wage Watch will help promote labor law compliance
through formal partnerships between the New York State Labor
Department and community groups. The effort will start with a
pilot program with several groups in New York City and Long
Island for the first six months, and then be opened up to
interested groups from throughout the state.
The first model of its kind, New York Wage Watch will
provide ordinary people with a formal and systematic role in
the fight against wage theft. Participating groups will
select a geographic zone for their efforts, and within that
zone, they will participate in a range of activities aimed at
improving labor law compliance, including holding know-your-
rights training; providing employers with information about
compliance; and distributing literature to workers in
supermarkets, laundromats, nail salons, and other community
settings. When they encounter workers facing serious
violations of the law or employers with detailed questions
about compliance, New York Wage Watch groups will have a
designated point person for referrals in the Labor
Department's Division of Labor Standards, which enforces wage
and hour laws. The Department will provide training and
materials to participating groups.
``Just as no one wants to live in an area riddled with
crime, nobody wants to live in a neighborhood where workers
are paid sweatshop wages,'' said Commissioner Smith. ``New
York Wage Watch will increase labor law compliance by giving
regular people a formal role in creating lawful workplaces
statewide, and thereby improving the quality of life in their
communities. It will also help law-abiding employers, who
struggle to compete with businesses that undercut them by
violating the law.''
In recent years, the Labor Department has uncovered
widespread labor law violations in a broad range of
industries and locations throughout the state. An industry-
based investigation of car washes in 2008 revealed that over
78% of New York City car washes inspected were not paying
minimum wage or overtime. Nearly half of 303 employers
visited on joint enforcement sweeps in Buffalo, Albany, the
Bronx, and Queens required followup for wage and hour
violations. The Labor Department found serious violations at
ordinary stores, restaurants, and offices statewide, as well
as at state icons like the Saratoga Race Course, where over a
hundred backstretch workers interviewed reported a pattern of
illegal wages, and at the Erie County Fair, where bathroom
attendants were paid no wages and were even forced to give
half of their tips to a subcontractor.
``These violations are far more common than many people
realize, but they plague our communities and diminish the
quality of life for New York's workers,'' said Commissioner
Smith. ``We are enforcing the law as creatively and
aggressively as we can, but the government cannot do it
alone. We need concerned members of the public to help raise
awareness about wage theft, to educate workers and employers
about the law, and to help serve as a bridge between our
agency and workers who might be unlikely to come to us on
their own.''
Over the past few years, the Department of Labor has forged
informal partnerships with advocacy groups and grassroots
organizations on behalf of workers. A more proactive approach
by the Division of Labor Standards, combined with efforts of
the newly created Bureau of Immigrant Workers' Rights, has
resulted in more sustained and effective partnering. One such
relationship, with the Retail, Wholesale and Department Store
Union (RWDSU), and Make the Road New York, led the Department
to investigate a commercial strip in Bushwick, Brooklyn.
During the course of this investigation, the Labor Department
found $350,000 in wage underpayments were owed to 60 workers.
In the ensuing weeks and months, the RWDSU and Make the Road
New York maintained a presence in the area, talking with
businesses and workers about labor law. A labor law seminar
was also conducted for employers in the area. Labor law
compliance appears to have increased in Bushwick as a result
of this joint effort. New York Wage Watch aims to
[[Page S380]]
replicate the enhanced effectiveness resulting from the
coordination of law enforcement efforts with ongoing presence
and involvement of community members.
This pilot program will begin with a small number of groups
who are already working on labor issues. Each group has
referred a number of cases to the Department of Labor in
recent years. The groups are Centro del lnmigrante in Staten
Island; Chinese Staff and Workers' Association; Retail,
Wholesale and Department Store Union (RWDSU); Make the Road
New York; United Food and Commercial Workers (UFCW) Local
1500; and The Workplace Project in Long Island.
Next month, each of these groups will receive language-
specific training from Department of Labor staff. The first
trainings will be held on Saturday February 7 at the Murphy
Center for Labor Studies in Manhattan, in English, Spanish
and Chinese, and will cover basic labor laws affecting
workers such as minimum wage, overtime and meal periods. The
Department of Labor will also be providing multilingual
outreach materials to each Wage Watch group to hand out to
workers and businesses.
After a six-month pilot period with these groups, the Labor
Department will begin seeking additional groups who wish to
participate statewide. Each group should be a non-
governmental, non-profit entity, such as a community group,
religious organization, student group, labor union, business
association, or neighborhood association. Groups must have at
least six members and must select a geographic region to
focus upon--this may be as small as several blocks in an
urban setting or as large as several counties elsewhere.
Groups need not have prior labor-related experience.
Stuart Appelbaum, President of the 100,000 member Retail,
Wholesale and Department Store Union said, ``New York Wage
Watch is labor law enforcement at the purest, most grassroots
level. This program will allow unions, community groups and
churches to engage in the fight against the exploitation of
workers in our neighborhoods. It is critical that employers
do not take advantage of workers and their families during
these difficult economic times.''
Amy Carroll, Supervising Attorney for Workplace Rights at
Make the Road New York said, ``Wage theft is rampant in many
low-wage industries and immigrant neighborhoods, in large
part because workers are afraid to come forward and file a
complaint when their rights are violated. New York Wage watch
allows the State Department of Labor to partner with
organizations, like Make the Road New York, that already have
workers' trust. In our experience, community monitoring of
employer conduct is critical to ensure that employers caught
violating the law today actually pay their workers correctly
tomorrow. Employers will be dramatically less likely to
violate wage and hour law when they know that trained
community members are on the ground as the eyes and ears of
the DOL's wage enforcement units.''
Bruce W. Both, President of United Food and Commercial
Workers Union Local 1500, New York State's Largest Grocery
Workers Union said, ``UFCW Local 1500 commends the New York
State Department of Labor for its innovative approach to
promote labor law compliance among New York State's
employers. UFCW Local 1500 is excited to participate in the
Wage Watch program, as we see it as both a creative yet
fiscally efficient way to educate workers and employers about
their labor rights and obligations during these difficult
economic times. Our long history of working with the DOL,
Commissioner Patricia Smith and her dedicated staff has
taught us that grocery workers, especially Gourmet Grocery
Workers, will greatly benefit from such a program. Workers in
this industry have high rates of not being paid according to
New York State Wage and Hour laws. UFCW Local 1500 looks
forward to making Wage Watch a successful collaborative
effort.''
Gonzalo Mercado, Director, El Centro del Inmigrante said,
``El Centro del Inmigrante applauds the New York State
Department of Labor for the creation of the Wage Watch
Program. Thousands of workers every year are victims of wage
and hour violations and this initiative is a great tool to
help enforce the labor laws that most of the time are not
known by the workers nor by their employers. Immigrant
workers are the most exploited and most vulnerable and we
look forward to collaborating in this endeavor.''
Nadia Marin-Molina, Executive Director of the Workplace
Project said, ``During this time of economic crisis, it is
more important than ever that the wages of workers, immigrant
and non-immigrant alike, are protected, so that workers can
pay rent and feed their families. On Long Island, the
Workplace Project has shown that, with education, organizing,
and support, community members--day laborers, domestic
workers, and factory workers, for example--are willing to
stand up and fight exploitation on the job at great personal
risk. The Wage Watch program will now allow us to link a
trained community team to work closely with the New York
State Department of Labor, so that employers will not be able
to abuse workers with impunity. The Workplace Project is
excited to participate in this innovative partnership with
the DOL and looks forward to engaging many more community
members to stop wage theft through this collaboration.''
To find out what you can do to establish a New York Wage
Watch group in your community, send an email to
NewYorkWageW[email protected] or call 1-888-52-LABOR.
____
New York State Department of Labor--Wage and Hour Watch
Dear Friend: We are preparing to expand Wage and Hour Watch
beyond the original groups in the Pilot Program. We are
writing to you because you have expressed interest in
becoming or joining a Wage and Hour Watch group, as have a
number of other organizations and individuals.
We have not yet determined the precise extent or timetable
of the initial expansion of the program, and we want to be
sure to expand in a planned and methodical way which will
ensure the continued quality of the program.
However, regardless of the precise plan we develop for
expansion, our first step is to gauge the level and location
of interest throughout the state. This will allow us to
determine training needs and a realistic schedule for
expansion. Therefor, we have developed the attached
Application form for groups who are interested in becoming
Wage and Hour Watch participants.
For efficiency and quality control, all groups who wish to
become a Wage and Hour Watch group must have at least six
members, and must have a host or sponsor organization--either
a nonprofit organization, an educational institution, a trade
association, a labor union, or a religious/faith-based
organization.
If you are an individual without such an affiliation,
please complete the form to the best of your ability and
return it to us. If there is a Wage and Hour Watch group
forming in your region, we will try to connect you to the
group.
Please note that the application form asks for a reference
letter. This reference letter would be for the lead person,
or contact person, for the proposed Wage and Hour Watch
group.
In order to allow us to plan for the next stage of the
program, please return the completed application form with
reference letter by Monday, June 15, 2009.
If you have any questions, please contact email
[email protected]
Thank you for your interest and we look forward to hearing
back from you.
Terri Gerstein,
Deputy Commissioner for Worker Protection & Immigrant
Service.
[[Page S381]]
[GRAPHIC] [TIFF OMITTED] TS01FE10.001
[[Page S382]]
From: Gerstein, Terri (LABOR)
Sent: Wednesday, April 16, 2008 4:49 PM
To: Boylan, Lorelei (LABOR)
Subject: FW: Enforcers
Attachments: Auxiliary Police Fact Sheet; Volunteer Ambulance
Corps Fact Sheet; Neighborhood Watch Fact Sheet
FYI. I told Jeff I will be on vacation and won't get back
to him until I get back. (I think I mentioned to you I'm
going away from tomorrow through Fri apr 25 and then I will
see you at somos el futuro). I also told Jeff I would forward
you these so you can read and think about them in the
meantime.
Terri Gerstein,
Deputy Commissioner of Labor for Wage Protection and
Immigrant Services, New York State Department of Labor.
____
From: Jeff Eichler
Sent: Wednesday, April 16, 2008 4:13 PM
To: Gerstein, Terri (LABOR)
Subject: Enforcers
Hi Terri: I hope all is well.
Attached are short fact sheets prepared by Lindsey
exploring the Auxiliary Police and Ambulance Volunteers.
Since both of these voluntary organizations are governed by
statutory authority I don't think they will provide a useful
example for our concept of voluntary wage and hour enforcers.
Nonetheless, you should take a look at Lindsey's work and see
if anything appears useful. I do believe that the
neighborhood watch concept might be the appropriate model.
Lindsey also has short overview of the neighborhood watch and
it too is attached. Once you have reviewed these documents
lets arrange a time to talk.
Jef.
____
From: Boylan, Lorelei (LABOR)
Sent: Friday, November 28, 2008 11:45 AM
To: Raj Nayak; Gerstein, Terri (LABOR); Gardner, Colleen C
(LABOR); Trivino, Geovanny (LABOR); Amy Carroll; Deb Axt
Cc: Smith, Patricia (LABOR)
Subject: RE: Wage Watch
Here is a proposed outline for the one-day training. I
figured Amy and I could use input from the rest of the group
on whether we should be covering other topics before we delve
into it.
The one day session will not turn the enforcers into labor
law experts but will assist them in identifying labor law
violations and make the referral of greater value. The ``role
of the community enforcer'' is where we will have to come up
with original material but the other sections we have plenty
of usable material at the DoL.
Lorelei Boylan,
Director of Strategic Enforcement, Labor Standards
Division, New York State Department of Labor.
____
To: Terri Gerstein/LoreleiBoylan
From: Aly Waddy
Re: Wage & Hour Watch Program Work Plans
Structure
Aly Waddy
Responsible for all communications to DOL. Will prepare all
necessary reports: Participate in meeting will DOL.
Alex Lazaro
Will supervise field operation. Participate in meetings
with DOL etc.
Full List of Participants
1. Aly Waddy
2. Alex Lazaro
3. Diana Robinson
4. Brendan Sexton
5. Vilmarie Solivan
6. Rafael Hernadez
7. Jose Rosendo
Jurisdiction
Gourmet, Grocery and Retail sector in 5 Boroughs. This will
be the focus.
We will however utilize the program in all of our
Organizing Campaigns. This may at times be outside of the
five boroughs.
Activities
We will introduce Wage & Hour Watch Campaign into all our
Organizing Efforts.
We will have dedicate 4 days per quarter to Wage & Hour.
We will introduce program at our Union membership meetings.
Mr. ENZI. I yield the floor.
Mr. HARKIN. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. HARKIN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HARKIN. Mr. President, I listened very carefully to the statement
made by my friend and ranking member, Senator Enzi. Many of the points
raised by the Senator have been gone over before by the committee.
These were things we looked into. So I think I would like to respond a
little bit, almost point by point, to some of those concerns that were
raised in the statement made by Senator Enzi.
But before I do that, I, again, wish to make one thing very clear. We
are talking about something--this Wage Watch. Is that what it is
called? Wage Watch. We are talking about something that is perfectly
legal. Almost, listening to my friend's comments on it, you would think
there was some subterfuge going on. This was perfectly open and above
board and everything. No one is alleging anything was ever done
illegally. No person--none of the Wage Watch people--did anything
illegal. In fact, all the things they were engaged in--and I say
``were''; I use the past tense because it was a pilot program and it
has now ended and they are now assessing it--but all the things they
were engaged in, they can engage in today. Anyone can. I can. You can.
Staff can. Anybody can do this. It is not illegal. It is perfectly
legal. So let's keep in mind what we are talking about is a perfectly
legal, open, transparent pilot project that was started by the New York
Department of Labor.
Again, as I indicated earlier with my charts, why were they doing
this? Because so many people had been found who were not being paid the
minimum wage; they were working overtime and not being paid overtime. A
lot of times these low-income workers--many of whom are recent
immigrants to this country--do not know what their rights are. They are
fearful of losing their job. It is the only thing they have to keep
their families together, and if the employer decides to shave a little
bit off their overtime, what are they going to do? They have no one to
go to.
So that is why I pointed out in my charts how much money and how many
times Commissioner Smith had gone after bad actors, bad employers, to
get money back for workers, for their families, for their retirement
systems they were cheated out of.
As she said to me, the good employers--the good employers--the
businesspeople in New York wanted her to do this because the bad actors
who were shaving, who were not paying the minimum wage, who were not
paying overtime, were taking unfair advantage of the honest employers
that were meeting their legal obligations. That is why it is no
surprise to me we have all these letters of support for Ms. Smith from
the business community. I already mentioned the Business Council of New
York, the Manufacturers Association of Central New York, the entire New
York congressional delegation--all these writing letters in support of
her, talking about how fair she is and how she would listen and work
things out.
When she started--she did not start it--but when the department
started this Wage Watch, that was the intent of it. It was information.
My friend says they started out from the beginning for enforcement.
Well, sure, what do you think? Do you think someone is going to find
out someone is not paying someone the minimum wage, and they are not
going to tell anybody, they are not going to tell the Department of
Labor, they are just going to say: Well, that is just the way it is. Of
course, the end result is to enforce the law, to let people know their
legal rights so that law can be enforced. Of course, that is the end
result of it.
But the implementation of that was an informational program, to get
information and guidance out to people, again, who--we are not talking
about Members of Congress. We are not talking about our educated staff
who have been to the best schools and have all these fancy degrees. We
are not talking about accountants. We are not talking about people
working on hedge funds in New York or on Wall Street. We are talking
about people working in Queens at the minimum wage in the garment
industry--janitors, homemakers, others out there who are working in
food service who are at the minimum wage or slightly above it. So we
are talking about people who do not have all that knowledge base we
kind of assume workers would have. I wish to make that point clear
before I start to talk about some of the points that were made.
Again, a lot has been made about the plans for expansion and about
Senator Burr's question. I looked at Senator Burr's question. I looked
at her response. I was there that day. It did not register. But then
later on we began to look at this when issues were raised by my
Republican colleagues.
[[Page S383]]
Well, quite frankly, the e-mails that were shown by my colleague were
not e-mails from Patricia Smith. They were e-mails from Terri Gerstein,
not Patricia Smith. Quite frankly, to expand it to include occupational
safety and health training, there was an e-mail to Terri Gerstein from
Joel Shufro. Well, much was made of this. Again, I will respond in two
ways. Much was made of expanding it to occupational safety and health
issues training. My response is, yes; so? Shouldn't people also know
not only what their rights are in terms of what their wages are, but
shouldn't they also have the right to know whether something is unsafe,
whether their health is being endangered? It would seem to me this also
has to get out there, to know what their rights are to protect their
health and their safety. I don't have any problem with that, that they
should have that kind of training also, as well as to be on the lookout
for that.
Sure, if they are working in hazardous conditions and with hazardous
materials that can affect their lives and their livelihood and their
future health, somebody ought to know about it. Someone should know
about it.
On the expansion of the program beyond just the wage-and-hour
expansion in the State, it looks as though the deputies may have gotten
a little ahead of her when they were doing this. Again, keep in mind, I
know the buck stops here. I saw that chart. The buck always stops here.
We are responsible.
As I pointed out, Ms. Smith was running an agency with an $11 billion
budget--$11 billion, 4,000 employees. This was a $6,000 pilot project,
hardly the meat and potatoes of what she was doing in her job every
day. Plus, she was focusing on one of the worst economic crises New
York and this country has faced. So keep that in mind.
Ms. Smith was clear in her response to us about the fact that she had
no discussions about a potential expansion with anyone other than
generally indicating that:
. . . if it proved successful, my goal would be to expand
it to other areas of New York State. At that time, I had not
authorized my staff to proceed with a statewide expansion of
the program, nor had I discussed with them any steps that
were preliminary to a possible expansion. My first--
And I am reading from her response to our written questions. Ms.
Smith says:
My first substantive discussion about the steps needed to
be taken to evaluate any potential expansion of Wage and Hour
Watch occurred in late May 2009 with my Executive Deputy
Commissioner. . . . At that time he informed me that the
Deputy Commissioner for Wage Protection and Immigrant Affairs
had recently discussed with him what to do about the
additional requests to join the program to which we had never
responded. He told me that he had authorized her sometime in
mid May to send out e-mails to groups in New York that had
expressed interest in the program in case we judged the pilot
a success. He had not personally seen the e-mail. Therefore,
within days, I asked to review the text of the e-mail the
Deputy Commissioner for Wage Protection and Immigrant Affairs
was using. I told her that it could give the impression that
a decision to expand the pilot had been made, which it had
not, and made appropriate changes to the text. I directed her
to use my corrected version in all future e-mails.
So, again, rather than saying this has to be expanded, she said let's
look at the results and see what the results are, and she took it upon
herself to correct those mailings that went out from her office.
The other thing that was said had to do with unions and that she
misled the committee. There is a claim in response to a written
question that she instructed unions participating in the Wage and Hour
Watch Program not to use their status as wage watch groups as a union
organizing tool. In fact, the New York Department of Labor tacitly
condoned this practice.
Those are the charges that were made.
Well, first of all, again, there is nothing improper or unlawful
about unions using their Wage and Hour Watch activities as part of
organizing campaigns. There is nothing illegal about that. I would like
to have someone show me where that would be illegal. There is nothing
illegal about that. However, Ms. Smith, in order to be fair, took all
appropriate steps to discourage that activity because business groups
had raised concerns about this issue with her. She responded
immediately, specifically prohibiting unions from distributing their
own organizing literature while they were performing wage and hourly
watch activities.
This was a written question to her:
Were you personally aware of any instance when a labor
organization participating in the Wage and Hour Watch program
engaged in labor activities? If so, how did you respond? If
not, how would you have responded to such activity?
Here is what Ms. Smith responded in writing:
I am not personally aware of any instance when a labor
organization participating in the Wage and Hour pilot program
engaged in organizing functions while performing Wage and
Hour Watch functions. If I had been aware of such behavior I
would have decided to terminate them from the pilot.
Here is another question:
In your response to a question submitted by Senator Enzi on
May 12, 2009, you describe a March 2009 meeting with numerous
retail trade organizations where these organizations
requested that groups participating in the Wage and Hour
Watch pilot program be prohibited from giving out information
about their group while doing Wage and Hour Watch activities.
How did you respond to that request, and what actions did you
take to follow up on that request?
This has to do with labor unions too.
I told the trade associations that their request was
reasonable, that I would make sure the participating groups
would be specifically instructed to refrain from giving out
their own materials while doing Wage and Hour Watch
activities. I also told the trade associations that their
request would be explicitly incorporated in any future
written agreements. Within a week of that meeting, I
instructed Lorelei Boylan, Director of Strategic Enforcement
. . . to call each of the groups participating in the Wage
and Hour Watch pilot and give them that instruction. Within a
week after our conversation, she reported back to me that she
had contacted each of the groups, explained the specific
prohibition, and that they agreed to it. Since then, I have,
from time to time, asked my staff if they were aware of any
problems with the groups' complying with that particular
instruction, and they have reported no problems.
Again, here is her e-mail. Some talked about how these people would
go in and use authority to do something. It was compared to the
Neighborhood Watch program. As my friend said, in the Neighborhood
Watch program, people can't go into people's homes. Well, under this
program, the Wage and Hour Watch Program, they could not go into a
private employer's business either. They couldn't go into somebody's
office, somebody's business. They could go into a store where the
general public could go, yes. They could go into Wal-Mart or they could
go into a retail establishment where the public generally could go, but
they could not go into, let's say, a manufacturing concern where the
public was not allowed to go, the same as Neighborhood Watch. You
couldn't go into somebody's home. You could sure go into a community
center. You could go into a shopping center. You could do a lot of
things. You could go to the public park as Neighborhood Watch.
But here is a letter from Patricia Smith dated January 15, 2009, long
before any of this stuff ever came out:
Dear Labor Standards Staff:
I want to let you know about a new pilot program we will be
announcing on Friday called ``Wage Watch.'' The goal of the
program, as with all of our enforcement efforts, is labor law
compliance throughout the state.
Complying with the law. Anybody opposed to that? But here is the
important paragraph:
Please note that the groups and individuals who participate
as Wage Watchers will not be agents, employees, or official
representatives of the Labor Department. They are not
replacing staff and they are not going to be conducting
investigations of any kind. Their role is limited to doing
outreach and community education, and to reporting any
violations they encounter to the Division.
I don't think you can get much clearer than that. That went out on
January 15.
There was one other thing I guess I have to respond to, and that is
that there is some confusion as to whether the idea for this came about
internally or whether it was external. Again, I don't understand what
the big problem is. Who cares where it came from? Again, it is a legal
operation, ethical, aboveboard, not nefarious in any way.
There is some problem about whether it came from internally or
outside. When Patricia Smith testified at the hearing, she was being
accused of misleading us because she said it was ``an internally
crafted group'' and that ``it
[[Page S384]]
was only after we sat down and crafted it ourselves that we reached out
to groups to see if they would be interested.''
Well, I have met with Ms. Smith. We have talked about this. We went
through all the records. At that point in time when she testified that
was to the best of her knowledge, that it had come from the people in
her department and that they had suggested this and then they were
going to go to outside groups to get people involved.
What she didn't know is that some people on her staff had been
meeting with outside groups in terms of coming up with this kind of an
approach. Then she corrected it later on when she said: Yes, I found
out later that some people on my staff had done this.
But, again, let's keep in mind there was nothing inappropriate about
this. There was nothing inappropriate about her staff meeting with
outside groups to talk about this. Absolutely nothing. She just
happened to make a mistake in front of the committee in saying they
hadn't gone to outside groups before it came up, and actually it had
been discussed with outside groups with her staff.
What is the big deal? Is someone saying there is something illegal?
No, there is nothing illegal about that. Again, there is nothing
inappropriate about it. It was simply a mistake she made in her
testimony because she didn't have full knowledge of what her staff had
been doing at that point in time in that Wage and Hour Watch.
Lastly, I know it will be said: Can she manage a large organization
if she doesn't know about what one staff person may have done in terms
of talking to an outside group? Well, as I point out, she ran an $11
billion agency, 4,000 employees. Her focus more than anything--and I
have talked to her about this, and I talked earlier about it with the
charts I had--was going after these employers who were cheating people
out of their minimum wage, taking away retirement benefits, working
them overtime and not paying them overtime. She was getting money back
for these families. This was a $6,000 pilot project in an $11 billion
agency. So she may have missed a little bit here or missed something
there or missed one person talking to somebody.
I would be more upset about it if it were illegal activity. If, in
fact, these things had been going on and they were not legal, they were
not ethical, yes, then I would say the buck stops here, you bet. But
that is not the case. This is perfectly legal, perfectly ethical.
So I can understand if something went on in that agency in a small
pilot project and she didn't know every single thing about it and who
talked to whom and when something occurred. That is the essence, as I
understand it, of the arguments on the other side. That seems to be the
essence of it.
I think it is making a mountain out of a molehill. She is perfectly
qualified to be the Solicitor, and I hope the vote coming up shortly
will confirm that.
The PRESIDING OFFICER. The Senator from Wyoming.
Mr. ENZI. Mr. President, in light of the 20 minutes that we just
heard in defense, and he had spoken previously before I spoke, I ask
unanimous consent for an additional 5 minutes to briefly comment.
The PRESIDING OFFICER. Is there objection? Without objection, it is
so ordered.
Mr. ENZI. Mr. President, there are so many places that a person needs
to go if Ms. Smith does make it through the cloture vote. Of course, I
have a lot more documents and information I will be sharing with
people. I don't even know where to begin on the rebuttal to what has
been said.
Internally crafted, no. It was brought to them by the unions. We can
show where that came from. The Senator from Iowa mentioned that she met
with small businesses in March. The program started in January with no
input from small business. This is going to affect small business. They
should have had the opportunity to comment on how the program would
work, because there are a lot of privacy and other related issues in
this.
When somebody comes to you with a State card from the Department of
Labor of New York, they could probably go anywhere in the business they
want to. They have only had 1 day of training in order to be able to do
this. Does that make them an expert in OSHA and in wage and hour law? I
don't think so. But there are safety and security and invasion of
privacy issues that were ignored, or it was consciously decided they
weren't important.
We asked about background checks on those who were trained and gave
the State identification cards to:
There is no formal vetting process for the New York
Department of Labor to partner with an entity. Instead, the
Department relies primarily on prior experience working with
the group. For the Wage and Hour Watch pilot, the Department
selected the groups that were asked to join based on prior
experience working with them on a more informal basis.
They did consider the possibility of a background check on the groups
but ultimately rejected that idea after inquiring as to whether
Neighborhood Watch groups are subjected to backgrounds checks. The
Department was informed that the groups participating in this more
sensitive crime prevention partnership were not subject to a background
check.
In her Senate response, Ms. Smith in part explains the lack of a
background check because the program is modeled on the National Sheriff
Association's Neighborhood Watch program. Notably, however, unlike Wage
and Hour Watch, Neighborhood Watch is purely an observe and report
program. Participants do not investigate crimes and are strongly
cautioned against doing so, nor are they allowed to enter private
property or businesses in conducting their operations. Calling the
police about suspicious activity in a public area is significantly
different than investigating the wages and hours of individual
employees and recording their personal contact information.
This decision to allow those who may have criminal records--no
backgrounds check--or may not be legal residents--no background check--
in the United States to be trained and gather information under cover
of New York State authority is also compounded by the types of
information being gathered. That is a little different than
Neighborhood Watch too. Ms. Smith authorized the training provided to
participants that directed them to gather the personal telephone
number, vehicle license plate, and home address of business owners they
visited. As noted above, the State also allowed that information to be
kept and used for other purposes outside of Wage and Hour Watch.
I have more things I could go into. For instance, in a memorandum to
Ms. Smith in January 2009, NYDOL officials point out that all pilot
groups would be taught ``guidance on what level of information is
needed for `anonymous' Wage and Hour Watch tip.'' They wouldn't be able
to tell if an anonymous tip was inaccurate. In other words, it could be
used for harassment.
There are a lot of problems with the program. I will be going into
them tomorrow if cloture is successful.
I yield the floor.
Mr. LEAHY. Mr. President, today, the Senate will try to end yet
another Republican filibuster and invoke cloture on the nomination of
Patricia Smith to be Solicitor General for the Department of Labor.
This is the 15th filibuster against President Obama's nominees.
Commissioner Smith is a well-qualified nominee who has decades of
experience working on labor issues, and a strong record as labor
commissioner for the State of New York. The Senate Committee on Health,
Education, Labor and Pensions held a hearing on her nomination in May
and reported it favorably to the Senate last October. Commissioner
Smith should have been confirmed long ago. However, as has become all
too common in this Congress, the Republican minority continues to block
the Senate from even considering her nomination and giving her the up
or down vote they not long ago insisted was the constitutional right of
every nominee. Instead, the Senate is faced with another Republican
filibuster.
Nothing I have seen suggests there is a reason to block Commissioner
Smith's nomination from receiving Senate consideration. If some
Senators oppose the strong enforcement of laws to protect American
workers, they can vote against the nomination.
Some seek to justify this delay by creating controversy over ``Wage
[[Page S385]]
Watch,'' a pilot program started by the New York Department of Labor
under Commissioner Smith designed to encourage Department employees to
report labor law violations. This seems to be a controversy generated
by those who disagree with the program. What is so troubling about this
filibuster is how difficult it has become to determine which
nominations Senate Republicans are merely blocking as part of their
political strategy of obstruction and delay of President Obama's
nominees.
If cloture is invoked and we are finally able to consider the Smith
nomination, we will then have the opportunity to end the filibuster of
another nomination, that of Martha Johnson to head the General Services
Administration, GSA. Her nomination has been stalled on the Senate
Executive Calendar since June 8 due to the opposition of a single
Republican Senator over a dispute with GSA about plans for a Federal
building in his home State. The will of the Senate and the needs of the
American people are held hostage by a single Senator.
This should not be the way the Senate acts. Last week in his State of
the Union Message, President Obama told Congress and the American
people: ``The confirmation of well-qualified public servants shouldn't
be held hostage to the pet projects or grudges of a few individual
senators.''
Unfortunately, we have seen the repeated use of filibusters, and
delay and obstruction have become the new norm for the Republican
minority. We have seen unprecedented obstruction by Senate Republicans
on issue after issue--over 100 filibusters last year alone, which has
affected 70 percent of all Senate action. Instead of time agreements
and the will of the majority, the Senate is faced with a requirement to
find 60 Senators to overcome a filibuster on issue after issue. Those
who just a short time ago said that a majority vote is all that should
be needed to confirm a nomination, and that filibusters of nominations
are unconstitutional, have reversed themselves and now employ any
delaying tactic they can.
The Republican practice of making supermajorities the new standard to
proceed to consider many noncontroversial and well-qualified
nominations for important posts in the executive branch, and to fill
vacancies on the Federal courts, has had a devastating effect. As a
result of this Republican strategy, there are currently 75 nominations
pending on the Senate's Executive Calendar for important positions
throughout the executive branch and the judiciary, all but nine of them
pending since last year.
There are 19 judicial and executive nominations pending on the Senate
Executive Calendar that were reported favorably by the Senate Judiciary
Committee, all of them reported with bipartisan support. In fact, 16 of
the nominations reported by the committee were reported without a
single dissenting vote. These nominations are not controversial. They
should be easy to consider and confirm.
Five more nominations reported by the committee were pending on the
Senate Executive Calendar at the end of last year, but Republicans
insisted that they be returned to the President rather than held in
place. Two were judicial nominees and three were nominees to head
divisions at the Justice Department as Assistant Attorneys General. One
of those nominations had been reported by the Senate Judiciary
Committee by voice vote, with no dissent.
Despite the fact that President Obama began sending judicial nominees
to the Senate 2 months earlier than President Bush, last year's total
was the fewest judicial nominees confirmed in the first year of a
Presidency since 1953, a year in which President Eisenhower only made
nine nominations all year, all of which were confirmed. The number of
confirmations was even below the 17 the Senate Republican majority
allowed to be confirmed in the 1996 session.
Only 12 of President Obama's judicial nominations to Federal circuit
and district courts were confirmed all last year, less than half of
what we achieved during President Bush's first tumultuous year. We have
confirmed only two more this year, after Republicans objected to
consideration of the nomination of Joseph Greenaway of New Jersey to
the Third Circuit, a nomination reported by the committee last October
1 by unanimous consent.
Democrats did not practice this kind of obstruction and delay in
considering President Bush's nominations. In the second half of 2001,
the Democratic majority in the Senate proceeded to confirm 28 judges.
By this date during President Bush's first term, the Senate had
confirmed 30 circuit and district court nominations compared to only 14
for President Obama. In the 17 months that I chaired the Senate
Judiciary Committee during President Bush's first term, the Senate
confirmed 100 of his judicial nominees.
During President Bush's last year in office, with Democrats again in
the majority, we had reduced judicial vacancies to as low as 34, even
though it was a Presidential election year. When President Bush left
office, we had reduced vacancies in nine of the 13 Federal circuits.
As matters stand today, judicial vacancies have spiked and are being
left unfilled. We started 2010 with the highest number of vacancies on
article III courts since 1994, when the vacancies created by the last
comprehensive judgeship bill were still being filled. While it has been
nearly 20 years since we enacted a Federal judgeship bill, judicial
vacancies are nearing record levels, with 102 current vacancies and
another 21 already announced. If we had proceeded on the judgeship bill
recommended by the Judicial Conference to address the growing burden on
our Federal judiciary, as we did in 1984 and 1990, in order to provide
the resources the courts need, current vacancies would stand over 160
today. That is the true measure of how far behind we have fallen.
Justice should not be delayed or denied to any American because of
overburdened courts and the lack of Federal judges. The rule of law
demands more. The American people deserve better.
Among the nominees ready for Senate approval are nine Federal
judicial nominees reported by the Senate Judiciary Committee. Two would
fill vacancies on the Third Circuit, three would fill vacancies on the
Fourth Circuit, and there are nominees to fill vacancies on the First,
Second and Sixth Circuits, as well as a district court nominee to
Wisconsin. The delay in considering them is also part of this effort to
delay and obstruct. Judge Greenaway, about whom Senators Lautenberg and
Menendez spoke last week, was reported by unanimous consent back in
October, four months ago.
Two weeks ago the Majority Leader tried to get agreement to take up
the nomination of Judge Greenaway, the next judicial nominee on the
Senate Executive Calendar, but Republican objections continue to stall
consideration. That is a shame. He is a good judge. Senator Sessions
praised him at his confirmation hearing. Why he is being stalled I do
not know, and no one has explained. Even after the statements by the
New Jersey Senators, no one has come forward to explain the hold up
from the Republican leadership. Judge Greenaway is one of the many
outstanding judicial nominations reported by the Senate Judiciary
Committee that remain stalled on the Senate Executive Calendar. They
should have been confirmed last year and would have but for Republican
objection. When considered, they will be confirmed but not before being
needlessly delayed for months.
They insisted on debate on the nomination of Judge Gerard Lynch, who
was confirmed with more than 90 votes. Republicans insisted on hours of
debate for the nomination of Judge Andre Davis, who was confirmed with
more than 70 votes. Senate Republicans unsuccessfully filibustered the
nomination of Judge David Hamilton last November, having delayed its
consideration for months. For at least 2 additional months, Judge
Beverly Martin's nomination was stalled because Republicans would not
agree to consider it before January 20. Judge Martin, of course, had
the strong support of both of her home state Republican Senators,
Senator Chambliss and Senator Isakson, and the highest possible rating
from the American Bar Association's Standing Committee on the Federal
Judiciary.
The Democratic leadership sought to build on our belated progress two
weeks ago when we were allowed finally to consider and confirm Judge
[[Page S386]]
Martin. We asked for agreement to consider the nomination of Judge
Greenaway. As the Majority Leader indicated two weeks ago: ``[The
Democratic] majority was in a position to agree to a vote on the
nomination of Joseph Greenaway to be a U.S. circuit judge for the Third
Circuit. However, I was advised the Republicans would not agree to such
request.'' This is Congressional Record S166, January 22, 2010, daily
ed. Again, Senate Republicans have withheld consent and have objected
to consideration of a nominee.
None of the nine Federal circuit and district court nominations
currently pending on the Senate Executive Calendar should be
controversial. Six were reported by the Senate Judiciary Committee
without a single dissenting vote. One had one negative vote, one had
three negatives votes and the nominee from Tennessee supported by
Senator Alexander had 4 negatives votes but 15 in favor, including 3
Republicans. We have wasted weeks and months having to seek time
agreements in order to consider nominations that were reported by the
Senate Judiciary Committee unanimously and who are then confirmed
unanimously by the Senate once they were finally allowed to be
considered. That obstruction and delay continues.
The American people deserve better. The cost will be felt by ordinary
Americans seeking justice in our overburdened Federal courts. President
Obama has reached across the aisle and worked with Republican Senators,
including Senators Lugar, Martinez, Shelby, Sessions, Thune, Alexander,
Burr, Chambliss and Isakson, who all have supported his judicial
nominees. I wish Senator Republicans and the Senate Republican
leadership would reconsider their tactics of obstruction and delay and
work with us and with the President.
The Republican minority must believe that this partisan playbook of
obstruction will reap political benefit for them and damage to the
President. But the people who pay the price for this political
calculation are the American people who depend on the government being
able to do its job. I hope that Republican Senators will rethink their
political strategy and return to the Senate's tradition of promptly
considering noncontroversial nominations.
During his State of the Union Address last Tuesday night, President
Obama talked with us about the ``deficit of trust--deep and corrosive
doubts about how Washington works that have been growing for years.''
He urged that we show the American people that we can work together.
Regrettably the Senate is being required to dedicate today and tomorrow
to freeing one of the long-delayed nominations the President has sent
to the Senate for advice and consent. This is not working together.
This is yet another instance in which Senate Republicans have decided
to delay and obstruct.
The PRESIDING OFFICER. Under the previous order, the clerk will
report the motion to invoke cloture.
The assistant legislative clerk read as follows:
Cloture Motion
We, the undersigned Senators, in accordance with the
provisions of rule XXII of the Standing Rules of the Senate,
hereby move to bring to a close debate on the nomination of
M. Patricia Smith, of New York, to be Solicitor for the
Department of Labor.
Harry Reid, Tom Harkin, Jeff Bingaman, Mark Begich, Byron
L. Dorgan, Edward E. Kaufman, Barbara Boxer, Benjamin
L. Cardin, Robert Menendez, Kay R. Hagan, Sheldon
Whitehouse, Barbara A. Mikulski, Jon Tester, Roland W.
Burris, Kirsten E. Gillibrand, Bill Nelson, Mary L.
Landrieu.
The PRESIDING OFFICER. By unanimous consent, the mandatory quorum
call has been waived.
The question is, Is it the sense of the Senate that debate on the
nomination of M. Patricia Smith, of New York, to be Solicitor for the
Department of Labor shall be brought to a close?
The yeas and nays are mandatory under the rule.
The clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. KYL. The following Senators are necessarily absent: the Senator
from Missouri (Mr. Bond), the Senator from New Hampshire (Mr. Gregg),
the Senator from Texas (Mrs. Hutchison), the Senator from Arizona (Mr.
McCain), the Senator from Kansas (Mr. Roberts), the Senator from
Louisiana (Mr. Vitter), the Senator from Idaho (Mr. Risch), and the
Senator from North Carolina (Mr. Burr).
Further, if present and voting, the Senator from Idaho (Mr. Risch),
would have voted ``nay.''
The PRESIDING OFFICER (Mr. Bennet). Are there any other Senators in
the Chamber desiring to vote?
The yeas and nays resulted--yeas 60, nays 32, as follows:
[Rollcall Vote No. 17 Ex.]
YEAS--60
Akaka
Baucus
Bayh
Begich
Bennet
Bingaman
Boxer
Brown
Burris
Byrd
Cantwell
Cardin
Carper
Casey
Conrad
Dodd
Dorgan
Durbin
Feingold
Feinstein
Franken
Gillibrand
Hagan
Harkin
Inouye
Johnson
Kaufman
Kerry
Kirk
Klobuchar
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
McCaskill
Menendez
Merkley
Mikulski
Murray
Nelson (NE)
Nelson (FL)
Pryor
Reed
Reid
Rockefeller
Sanders
Schumer
Shaheen
Specter
Stabenow
Tester
Udall (CO)
Udall (NM)
Warner
Webb
Whitehouse
Wyden
NAYS--32
Alexander
Barrasso
Bennett
Brownback
Bunning
Chambliss
Coburn
Cochran
Collins
Corker
Cornyn
Crapo
DeMint
Ensign
Enzi
Graham
Grassley
Hatch
Inhofe
Isakson
Johanns
Kyl
LeMieux
Lugar
McConnell
Murkowski
Sessions
Shelby
Snowe
Thune
Voinovich
Wicker
NOT VOTING--8
Bond
Burr
Gregg
Hutchison
McCain
Risch
Roberts
Vitter
The PRESIDING OFFICER. On this vote the yeas are 60, the nays are 32.
Three-fifths of the Senators duly chosen and sworn having voted in the
affirmative, the motion is agreed to.
Mr. REID. Mr. President, I ask unanimous consent, notwithstanding
rule XXII, that the Senate consider the following nominations: Calendar
No. 561, Clifford Stanley, to be Under Secretary of Defense for
Personnel and Readiness; Calendar No. 603, Laura Kennedy, to be U.S.
Representative to the Conference on Disarmament; Calendar No. 614,
Philip Goldberg, to be Assistant Secretary of State for Intelligence
and Research; Calendar No. 615, Caryn Wagner, to be Under Secretary for
Intelligence and Analysis with the Department of Homeland Security;
that the nominees be confirmed en bloc, the motions to reconsider be
laid on the table en bloc, any statements relating to the nominations
appear at the appropriate place in the Record as if read, and the
President be immediately notified of the Senate's action.
Prior to there being a statement on whether this is accepted, let me
say, these are all critically important to the safety and security of
this Nation: Clifford Stanley, Under Secretary of Defense; Laura
Kennedy, the Conference on Disarmament; Philip Goldberg, Assistant
Secretary of State for Intelligence and Research; and Caryn Wagner to
be Under Secretary for Intelligence and Analysis with the Department of
Homeland Security. Every one of these are very important, I repeat, to
the security and safety of our Nation.
The PRESIDING OFFICER. Is there objection?
Mr. SHELBY. I object.
The PRESIDING OFFICER. Objection is heard.
The Senator from Ohio is recognized.
Mr. BROWN. Mr. President, I rise to speak in support of the
nomination of Patricia Smith, currently commissioner of labor for the
State of New York, as the Solicitor of Labor.
We just had a vote where, again, 40 people tried to block the
nomination of a key position at the Department of Labor. This is a
position that matters to workers. It is a position that matters to the
middle class. It is a position that has remained unfilled for 1 whole
year. It has been 1 year since President Obama has been sworn in. This
is one of the top officials of the Labor Department. It is a department
which, frankly, the Bush administration didn't put much stock in. The
Bush administration didn't much care about enforcing the rules about
labor, didn't much care about putting government on the side of the
workers in terms of worker safety, in terms of wages, in terms of all
[[Page S387]]
the things a Labor Department is there for--to make sure people are
rewarded for their labor; that people who work with their hands, people
who work with their brains are compensated for the fruits of their
labor. It is such an American success story, of people working hard,
getting ahead and being compensated for what they do and sharing in the
wealth they create for their employer through pay and benefits.
That doesn't seem to be the way 40 Members of this body look at the
world. The Solicitor of Labor is the third-ranking leader at the
Department of Labor. She will be charged, if confirmed, with enforcing
the full scope of the Federal laws protecting labor rights and
employment rights. These are not trivial matters. They are important
protections that reflect core American values: fair hiring practices,
safe working conditions, retirement security, and the payment of wages
and benefits rightfully earned.
Let me give an example: There has been a practice in northeast Ohio--
and across the country, we find out--where, when you go to a restaurant
and you don't pay your bill and you walk out of the restaurant, in many
cases it is the person who waited on your table who ends up paying the
bill. If you skip out on your bill--as has happened more and more and
more in this recession--it is not management who eats the cost, it is
typically the worker, the waiter, the waitress, the server who eats
that cost.
There are two cases--one in Columbus--where I believe it was a
waitress, in this case, who chased a person out of the restaurant who
didn't pay their bill and she was hit by a car and is paralyzed. There
was a case in Texas where a server chased someone who didn't pay the
bill out to the parking lot and was hit by a car and was killed.
The reason they do that is they are trying to make the patron behave
and do the right thing, but they paid the ultimate price for that. You
know why? Because the Department of Labor has not enforced laws that
protect that worker. Those are just two examples--one in Columbus and
one, I believe, in Dallas or somewhere in Texas.
There are only a few people who I am aware of who have expressed any
concerns over Commissioner Smith's nomination. The Commissioner will
enforce these rules that simply aren't being enforced--and were not
enforced during the 8 years of the previous administration, which
almost always sided with management over any real labor concerns--over
wages, over safety, over worker concerns.
A handful of Republicans have voiced opposition due to supposed
discrepancies in Commissioner Smith's testimony before the Health,
Education, Labor, and Pensions Committee. They disingenuously cite her
statements regarding a small pilot program that constituted $6,000 of
the Department's $11 billion budget. In response to written questions,
Commissioner Smith clarified her statements to the full satisfaction of
Chairman Harkin.
Despite this, Republicans on the HELP Committee have held up the
nomination process. Again, it has been 1 year and she is not sitting
there yet--1 year of Republicans saying no, of blocking things, of
obstruction. They have gone so far as to call for the withdrawal of the
nomination altogether.
It is irresponsible to cause a lengthy delay for a position that is
so important. This isn't an inconsequential position that doesn't
matter. It is a position that affects workers' rights, that affects
workers' pay, that affects workers' ability to be part of the middle
class. This position is particularly critical to the needs of workers
in this country.
We all know, in the last 10 years, until this recession, profits
generally were up, the economy was growing--until this recession, until
2007--yet workers' wages didn't keep up. Part of the reason is because
we had a Labor Department that simply didn't care about enforcing these
rules. We have a responsibility to provide leadership at the highest
level to ensure American workers of their right to an honest day's
work.
I am pleased the President has nominated a candidate who is as well-
qualified as Patricia Smith to be our Nation's next Solicitor of Labor.
She previously served as the New York attorney general's labor bureau
chief, where she argued and won two cases before the U.S. Supreme
Court.
Her tenure as commissioner has come at a difficult period. Yet she
has met the challenge with great professionalism and dedication. She
has garnered support in New York State, where she worked in both the
business and labor communities. The Business Council of New York
State--not exactly the State AFL-CIO--said her record shows her to be
``thorough, fair, and judicious in the use of the tools at her disposal
to ensure compliance with New York's labor law.''
Local chambers of commerce have also expressed their support, saying
they ``have enjoyed not only attention and engagement from Patricia
Smith, but a genuine working partnership.''
She has received commendations while serving under both Democratic
and Republican administrations. One Republican New York Senator
observed that she ``has worked in a positive, bipartisan manner.'' The
New York congressional delegation--both parties--unanimously supports
her.
Yet 40 Republicans have again said no and tried to block what we are
trying to do, what the President simply wants to do--to fill this
position.
Let me conclude with a short story. Today, I was at Hugo Boss, which
is a clothing manufacturer in Cleveland, OH. It is actually Brooklyn, a
suburb of Cleveland. This Hugo Boss plant is one of the last
manufacturing companies of men's suits, pants, and sport coats in the
United States. It is Hugo Boss's last manufacturing plant. Hugo Boss
has said this is a profitable operation. Hugo Boss is a German company.
This is a profitable operation in greater Cleveland making suits, but
they say they would make more if they moved their production to Turkey,
and that is what they are going to do.
I met with some of the 400 workers today. They make no more than $15
an hour, many less than that. They are paid pretty good benefits. It is
one more case where our trade laws and tax laws undercut manufacturing.
These are jobs that barely get their workers to the middle class. A lot
of husbands and wives both work at Hugo Boss, so I am hopeful they
change their mind. At the same time, Hugo Boss says they are expanding
their operations in the United States, but those operations are in the
sales force. They are going to open more stores in the United States.
They are expanding their sales force, but they have decided to
eliminate production in the United States.
Again, this is happening not because they are not making a profit in
Cleveland but because they can make a bigger profit in Turkey. I think
this illustrates, again, that it is time our government--whether it is
enforcement of our labor laws with Patricia Smith or trade agreements
and tax laws--comes down on the side of the workers, comes down on the
side of communities. We know what this will mean for Cleveland, OH, in
terms of taxes. We know what it will mean for those 400 workers. We
know what it will mean for those families. It is not good for anybody.
It is important that at least we speak today in support of Patricia
Smith, to show that this body will stand for workers and do the right
thing.
I yield the floor.
The PRESIDING OFFICER. The Senator from Georgia is recognized.
Mr. ISAKSON. I ask to be recognized for up to 10 minutes as in
morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________