On October 7, 2009, the Senate Committee on Health, Education, Labor, and Pensions approved, by a 13-10 party-line vote, President Obama’s nomination of M. Patricia Smith to serve as Solicitor for the Department of Labor. The Solicitor of Labor represents the DOL in litigation and alternative dispute resolution and provides legal opinions and advice regarding DOL activities.    

At the time of her nomination, Smith worked as the Commissioner for the New York State Department of Labor. Prior to this role, Smith served as Chief of the Labor Bureau for the New York State Attorney General’s Office.

On October 7, 2009, the Senate Committee on Health, Education, Labor, and Pensions approved, by a voice vote, President Obama’s nomination of William E. Springs as Assistant Secretary for Policy, Department of Labor. The Office of the Assistant Secretary for Policy provides advice and assistance to the DOL regarding such topics as policy development, program evaluation and implementation, budget and performance analysis, and legislation.

At the time of his nomination, Spriggs worked as a professor and Chair of the Department of Economics at Howard University. Spriggs also served on the Agency Review Team for the DOL during President Obama’s transition to the White House. During the Clinton Administration, Spriggs led the staff of the National Commission for Employment Policy and served as a senior economist for the Democratic staff of the Joint Economic Committee of the U.S. Congress. 

Spriggs also served as Chair of the Independent Health Care Trust for UAW Retirees of Food Motor Company, Chair of the UAW Retirees of the Dana Corporation Health and Welfare Trust, and Vice Chair of the Board of the Congressional Black Caucus Political Education and Leadership Institute. Spriggs also served on the United Food and Commercial Workers’ Union National Commission on ICE Misconduct and Violation of 4th Amendment Rights.

 On October 7, 2009, the Senate Committee on Health, Education, Labor, and Pensions approved, by a voice vote, President Obama’s nomination of Joseph A. Main as Assistant Secretary for Mine Safety and Health Administration, Department of Labor. MSHA administers the provisions of the Federal Mine Safety and Health Act of 1977, as amended by the Mine Improvement and New Emergency Response Act of 2006. MSHA also enforces compliance of safety and health standards designed to improve safety and health conditions in mines across the country and reduce the number of accidents. 

At the time of his nomination, Main worked as a self-employed mine safety consultant, with his recent work focusing on international mine safety, preventing mining accidents, and developing training programs and facilities to prepare miners and emergency responders for mine emergencies. Prior to this role, he served in several positions in the United Mine Works of America. 

On October 1, 2009, OSHA announced a new National Emphasis Program (NEP) that targets occupational injury and illness records prepared by employers.   

Under this NEP, OSHA will complete the following steps for a records inspection:  obtain copies of an employer’s OSHA Form 300, a full roster of employees, the total numbers of hours worked, and the average number of workers; review individual employee’s records; review an employer’s log to identify cases that do not meet OSHA’s recordability criteria; interview the employee in charge of maintaining injury and illness records; interview employees who are likely to be injured or become ill; interview management representatives; interview first-aid providers and health care professionals; and conduct a limited walkaround safety and health inspection. 

The NEP focuses on selected industries with high injury and illness rates, including scheduled passenger air transportation, animal slaughtering, steel foundries, soft drink manufacturing, couriers, mobile home manufacturing, rolling mill machinery and equipment manufacturing, iron foundries, and nursing care facilities.

This program went into effect on September 30, 2009.

On September 30, 2009, the Department of Labor’s Employment and Training Administration (ETA) filed an extension of the comment period for a proposed rule to amend the H-2A visa program. The H-2A program allows U.S. agricultural businesses to employ foreign workers in temporary or seasonal agricultural jobs. Employers must apply to DOL for H-2A labor certification before they can petition the federal Department of Homeland Security, U.S Citizenship and Immigration Services for the admission of H-2A workers to the United States.

The proposed rule was published in the Federal Register by ETA on September 4. The comment period was originally scheduled to close on October 5; however, ETA has extended this period to October 20. Notice of the extension is scheduled to be published in the Federal Register on October 2.

The final rule on the current regulations appeared in the Federal Register on December 18, 2008 and became effective on January 17, 2009. The final rule amended the regulations governing the certification for temporary employment of nonimmigrant workers in agricultural occupations and the enforcement of contractual obligations of the employers of such workers.

Under the December 2008 regulations, employers have to complete a general attestation stating that they will abide by the H-2A process and must take four positive recruitment steps, including: (1) submission of a job order to the State Workforce Agencies (SWAs) serving the area of intended employment; (2) running two print advertisements; (3) contacting former U.S. employees who were employed within the last year; and (4) recruiting in all states currently designated as a state of traditional or expected labor supply with respect to each area of intended employment.

Under the proposed revised rule, an employer must provide DOL with documentation that it has complied with the prerequisites for employing foreign workers under the H-2A program, rather than simply attesting to compliance. The proposed rule also reinstates the use of the Department of Agriculture’s quarterly farm labor survey as the basis for determining the adverse effect wage rate, rather than the Bureau of Labor Statistics’ occupational employment survey data used under the 2008 rule. The rule also proposes the use of a national registry to assist agricultural employers in finding workers across the nation.

The new rule also requires employers to provide copies of job orders submitted to DOL to its workers and post notices outlining employee rights. The rule also provides protections to U.S. workers employed by H-2A employers to ensure the U.S. workers in similar jobs do not receive less wages or benefits than their H-2A counterparts. Finally, the proposed rule strengthens penalties for companies who do not comply with the program requirements and increases DOL authority for conducting audits and monetary penalties.

In May 2008, DOL issued a nine-month suspension of the new regulations in order to afford the new administration an opportunity to review the rule. However, the Department lifted the suspension one month later in response to a preliminary injunction blocking the suspension issued from the U.S. District Court for the Middle District of North Carolina. After completing its review of the rule, DOL proposed the revised regulations on September 4 to ensure the U.S. agricultural economy employs U.S. workers to the fullest extent possible.

Labor Secretary Solis has appointed Legal Aid employment attorney Patricia A. Shiu as Director of the Department’s Office of Federal Contract Compliance Programs (OFCCP). The OFCCP is responsible for the enforcement of three laws that require federal contractors to take affirmative action and ban discrimination in employment decisions: Executive Order 11246, Section 503 of the Rehabilitation Act of 1973, and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974.

Shiu is currently vice president of programs at the Legal Aid Society-Employment Law Center in San Francisco where she has worked since 1983. She is also director of the Society’s Work and Family Project, which advocated for the passage of the California Family Rights Act and its regulations. Shiu focuses on employment discrimination and family-medical leave issues. In 1993, Shiu was appointed to the Civil Rights Reviewing Authority for the Department of Education by Secretary Richard Riley and has previously served as a board member and vice president of the Executive Board of the National Employment Lawyers Association. She is a graduate of the University of San Francisco School of Law.

Shiu is expected to take over as director of OFCCP in September 2009. The appointment does not require Senate confirmation.

In response to a June 29, 2009 preliminary injunction from the U.S. District Court for the Middle District of North Carolina, the Department of Labor announced that it has lifted its suspension of the H-2A visa program final rule.

The final rule on the new H-2A labor certification regulations appeared in the Federal Register on December 18, 2008 and became effective on January 17, 2009. The final rule amended the regulations governing the certification for temporary employment of nonimmigrant workers in agricultural occupations, as well as regulations regarding the enforcement of contractual obligations entered into by such workers. On May 28, 2009, DOL had announced a nine-month suspension of these new H-2A labor certification regulations, and notice of the suspension was published in the Federal Register the next day.  The June 29, 2009 order from the Middle District of North Carolina federal court concluded an injunction against the suspension was appropriate because the DOL would suffer relatively little harm from the injunction, and the plaintiff growers associations would suffer irreparable harm in the absence of an injunction. 

Under the newly reinstituted final rule, employers must apply to DOL for H-2A labor certification before they can petition the federal Department of Homeland Security, U.S Citizenship and Immigration Services for the admission of H-2A workers to the United States for agricultural work on a temporary or seasonal basis. Under the new regulations, employers would have to complete a general attestation stating that they will abide by the H-2A process and must take four positive recruitment steps: (1) submit a job order to the SWA serving the area of intended employment; (2) run two print advertisements (one of which must be on a Sunday); (3) contact former U.S. employees who were employed within the last year; and (4) recruit in all states currently designated, based on an annual determination made by Secretary of Labor, as a state of traditional or expected labor supply with respect to each area of intended employment. Finally, employers are required to submit a job order to the applicable SWA.

On May 28, 2009, the U.S. Department of Labor’s Employment and Training Administration (ETA) announced a nine-month suspension of the new H-2A labor certification regulations. The final rule on the new regulations appeared in the Federal Register on December 18, 2008 and became effective on January 17, 2009. The final rule amended the regulations governing the certification for temporary employment of nonimmigrant workers in agricultural occupations and the enforcement of contractual obligations of the employers of such workers. Notice of the suspension was published in the Federal Register on May 29, 2009.

For the nine-month suspension period, DOL will reinstate the H-2A regulations that were in place on January 16, 2009, prior to the new rule taking effect. The suspension is intended to provide DOL with an opportunity to review and consider the requirements of the new rule “to ensure that it effectively carries out the statutory objectives and requirements of the [H-2A visa] program in a manner that minimizes disruption” to the department. By the end of the nine-month period, the department will either have engaged in new rule-making or will lift the suspension.

Suspension of the final rule is in response to concerns that have been raised about the new regulations. Following the issuance of the H-2A final rule, a lawsuit was filed on January 12, 2009 in the U.S. District Court for the District of Columbia challenging the final rule (United Farm Workers, et al. v. Chao, et al., Civil No. 09-00062RMU). The lawsuit, brought by the United Farm Workers and others, asserted that the final rule violated section 218 of the Immigration and Nationality Act and the Administrative Procedure Act. District Court Judge Ricardo Urbina denied plaintiffs’ request for a temporary restraining order and preliminary injunction, and rejected plaintiffs’ arguments that the new regulations would cause irreparable harm. Plaintiffs have since filed an appeal with the U.S. Court of Appeals for the District of Columbia Circuit.

In addition, to the lawsuit, DOL has concerns that the Department and the State Workforce Agencies (SWAs) lacked sufficient resources (e.g., automated system, training, staffing) to effectively and efficiently implement the rule at the current time. The Department wants to ensure that the regulatory scheme has a sound basis prior to implementation. To avoid disruption in agricultural production, sales and market conditions, particularly during the current economic environment, DOL has suspended the new regulations and reinstated the previous regulations to ensure stability while the rule is under review.

Employers must apply to DOL for H-2A labor certification before they can petition the federal Department of Homeland Security, U.S Citizenship and Immigration Services for the admission of H-2A workers to the United States for agricultural work on a temporary or seasonal basis. Under the new regulations, employers would have to complete a general attestation stating that they will abide by the H-2A process and must take four positive recruitment steps: (1) submit a job order to the SWA serving the area of intended employment; (2) run two print advertisements (one of which must be on a Sunday); (3) contact former U.S. employees who were employed within the last year; and (4) recruit in all states currently designated, based on an annual determination made by Secretary of Labor, as a state of traditional or expected labor supply with respect to each area of intended employment. Finally, employers were to submit a job order to the applicable SWA.

On May 12, 2009, Department of Labor Secretary Hilda Solis testified before the Subcommittee on Labor, Health, and Human Services, Education, and Related Agencies of the Committee on Appropriations.

During her testimony, Secretary Solis stated that “[t]he department has developed an aggressive, comprehensive hiring plan for its worker protection agencies.” Solis also testified that the funding increase planned for the agencies - a 10% increase over the FY2009 budget - will restore the agencies’ funding and staffing levels to pre-2001 levels.

Ranking Member Rep. Todd Tiahrt (R-KS) and other Republican members of the Subcommittee criticized the plan because they claimed that this funding increase shifted money from the Office of Labor-Management Standards, the organization responsible for collecting and investigating union leaders’ financial filings.

On May 6, 2009, President Barack Obama nominated Jane Oates as Assistant Secretary of Labor for the Employment and Training Administration (ETA). ETA is responsible for providing job training, employment, labor market information, and income maintenance services primarily through state and local workforce development systems.   

As the current Executive Director of the New Jersey Commission on Higher Education and as Senior Policy Advisor to Gov. Jon S. Corzine, Oates focuses on linking higher education with K-12 education and the workforce. She also serves on the State Employment and Training Commission, the State Commission on Adult Literacy and Education, New Jersey High School Redesign Task Force, the Public Sector Work Group, and chairs the State Educators Health Benefits Commission and the Governor’s Schools Board of Overseers. 

Prior to this role, Oates served as Senior Policy Advisor to Sen. Edward Kennedy (D-MA). In that role, Oates she focused on higher education, national service, adult literacy, education research, and workforce issues.