On Monday, senators will vote on Barack Obama's nomination for the solicitor of labor in the Department of Labor, Patricia Smith. Like the president, Smith is a community organizer, primarily responsible for the "Wage and Hour Watch" in the state of New York. But Smith has a problem, causing several senators to ask the president to withdraw her nomination: She's dishonest. Smith has lied about her involvement with the Wage and Hour Watch program -- five times telling senators that she had no intention to expand the program to the entire state (leaving it localized in New York City), but later emails and other documents revealed that she did indeed plan to expand the program throughout the entire state of New York.
Barack Obama's nominees to key posts have continually come under fire (think: Tom Daschle, Tim Geithner, Erroll Southers, Jide Zeitlin, and so on). Add to the list yet another nominee who has a shady past. On Monday, when Patricia Smith comes to the Senate floor for consideration, the choice will be pretty clear--to oppose Smith's nomination.
Here are two documents being circulated on Capitol Hill that explain why her nomination should be opposed:
Memorandum
Re: Nomination of Patricia Smith, Solicitor of Labor-Designee
Background and Chronology
On April 20, 2009, Patricia Smith, currently Commissioner of the New York State Labor Department was nominated by President Obama to be the Solicitor of Labor at the U.S. Department of Labor (DOL). The Solicitor is the chief legal officer at DOL, third-ranking official in the Department, general counsel to Secretary, manages one of the largest legal offices in the federal government (more than 400 attorneys), responsible for ensuring that all stakeholders, including small businesses, are given fair treatment under department’s jurisdiction, and plays a key role in nearly every department policy, regulation and enforcement action.
In conducting due diligence, we learned of a program Ms. Smith launched, called Wage and Hour Watch in New York. In the program, community organizations and unions are trained by the State Labor Department in wage and hour laws, issued state identification cards, sent to leaflet area businesses – and go into businesses to investigate and report suspected violations directly to the State Labor Department.
On May 7, 2009, Ms. Smith testified at a confirmation hearing before the Health, Education, Labor and Pensions Committee. During the hearing Ms. Smith is asked about several aspects of the Wage and Hour Watch program by Senator Burr.
On May 13, 2009, Ms. Smith responded to Questions for the Record (QFRs) from Senators Enzi, Isakson, & Coburn. In her responses, she declined to provide documents about New York Wage and Hour Watch Program, requesting that the Committee seek them from New York.
On June 4, 2009, Senator Enzi requested documents from the State of New York under its Freedom of Information Law (FOIL) related to the Wage and Hour Watch Program, which were ultimately delivered the first week of July.
On July 28, 2009, Ms. Smith responded to a second round of QFRs from Senator Enzi regarding Wage and Hour Watch. She does not change prior testimony regarding program.
On August 25, 2009, Senator Enzi officially requested the White House withdraw Ms. Smith’s nomination.
On September 9, 2009, Ms. Smith responded to QFRs from Chairman Kennedy.
On September 10, 2009, Senator Isakson asked President Obama to withdraw Ms. Smith’s nomination.
Ms. Smith testified in five separate instances, both written and orally, that the NY Wage and Hour Watch Program was a “pilot program” only to be used in/around New York City, and that there were no plans to expand it, even to upstate New York. Ms. Smith’s responses:
The FOIL documents show that both before and after her confirmation hearing, she and her team promoted expanding the program, and her subordinates, including her deputy who had worked with her for 5 years as well as the Wage and Hour nominee, Lorelei Boylan, were recruiting new members. Attached are emails before and after her testimony and QFRs, as well as an application received in June from the NYS Laborers Organizing Fund that was not rejected. Virtually every relevant document, including press statements, internal and external emails and her own speeches, discusses expanding the program upstate and statewide or even nationwide – and many reference a June deadline to register with NY. There do not appear to be any documents in the approximately 3,000 pages provided that support Ms. Smith’s statements regarding having no plans for expansion.
In response to questions about how the program was developed, Ms. Smith stated that it was developed internally on two occasions:
However, emails show that two of the pilot groups, the Retail Warehouse and Department Store Union (RWDSU) along with Make the Road New York, a public interest entity financed in part by unions, were heavily involved in developing all aspects of the program. Attached is one example of email where these outside groups provided support for and pushed the State to implement this program. Ms. Smith did not even discuss the program with the targeted small business community or its representatives until March. This was after five trade associations representing small and medium business sent a letter to her and requested a meeting over a month after the program was launched.
Ms. Smith stated that the State had ensured the union organizers involved in the program would not use Wage and Hour Watch for organizing:
Notably, however, the agreement entered by New York with the unions and special interest groups specifically allows them to make use of information gathered for community organizing, which Ms. Smith also admitted in response to a QFR. Unions planned to use the program for organizing, including outside the pilot area of the program. Attached is the work plan of United Food and Commercial Workers Local 1500 stating they plan to use Wage and Hour Watch in “all of our Organizing Campaigns,” including those outside their designated Wage and Hour Watch area. UFCW Local 1500 also published plans to target non-union workplaces as part of the program in its newsletter. Other facts of interest:
The documents also show no instance where Ms. Smith or anyone else informed the unions that they could NOT use this program to organize.
C. Wage and Hour Watch Goal is Enforcement
Her subordinates, including Wage and Hour Administrator nominee Lorelei Boylan, and the union organizers and public interest groups involved in setting it up, described it from the beginning as an "Enforcers” Program. Participants were described as “community enforcers” and some of the training materials included that reference as well. Ms. Smith received email to that effect. Attached is one example.
Senator Enzi’s letter of August 25th announced his opposition to the nomination and requested that she be withdrawn by the President (copy attached). Senator Enzi will oppose Patricia Smith’s nomination at the mark-up before the HELP Committee, and place a hold on her nomination should it reach the floor. His opposition to Ms. Smith is based on factually incomplete and inconsistent testimony before the Committee and concerns about her treatment of small business generally.
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Nomination of PATRICIA SMITH to be Solicitor of Labor Accuracy and Integrity of Senate Testimony
Democratic staff has informed Republican staff that Senator Reid may soon file for cloture on Patricia Smith’s nomination to be Solicitor of the Department of Labor.
Ms. Smith misled the Health, Education, Labor and Pensions (HELP) Committee in her May 2009 testimony concerning a program she created in New York - “Wage and Hour Watch” - that credentials union organizers and community activists to act as State enforcement surrogates. Ms Smith was given the opportunity to correct her testimony in questions for the record but she continued to provide misleading and factually inaccurate responses. These responses contradicted official documents and e- mails received from the State of New York pursuant to a FOIA request. Three months after her testimony she responded to questions from Democratic Members claiming that she “misspoke”.
Ms. Smith was reported out of committee on October 6, 2009, on a straight party-line vote of 13-10.
Patricia Smith’s Testimony:
• Expansion: Ms. Smith denied that she had plans to expand the Wage and Hour Watch program. However, documents obtained from the State of New York contain more than 50 specific references to program expansion. E-mails sent immediately before and after her hearing show that expansion efforts were well under way.
• Enforcement: Ms. Smith stated the program was designed to be an educational effort. However, documents and her own speeches show it was designed as an enforcement program from the beginning and she even set up a hotline for union organizers and community activists. ID cards were distributed so that these groups could enter businesses to question employees.
• Program Creation: Ms. Smith stated that the program was created internally, by her staff, in her State Labor Department. However, the program was actually promoted and designed by a head union organizer and a community activist organization.
Other Concerns:
• Targeting Small Business: The program targets small- and medium-sized businesses. Ms. Smith did not consult with the business community while creating the program. It was only after small business representatives raised concerns about potential abuse that she met with them. This happened more than a month after the program was launched and too late to make changes.
• Labor Organizing: Ms. Smith stated the program would not be used for union organizing. Documents obtained from the State Labor Department and a union newsletter show plans specifically to use the program for union organizing throughout New York.
Solicitor of Labor: The Solicitor of Labor is a key position playing a role in nearly every policy, regulatory, and enforcement decision at the U.S. Department of Labor. Attached is a letter to Chairman Harkin from all Republican Members of the HELP Committee opposing this nomination. Also attached please find a letter from Senator Enzi to President Obama requesting that the nomination be withdrawn.
