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05.07.2013 1

Thomas Perez: Too Radical for Labor

By Nathan Mehrens

The Senate Health, Education, Labor and Pensions Committee are likely to vote on the nomination of Obama Labor Secretary nominee Thomas Perez this week, and their vote will be a precursor of how the overall Senate vote is likely to go.

Perez’ long history of radical views and actions in a variety of areas, make his potential impact on the nation’s labor policy both predictable and frightening.

Here is a small sampling of what we can expect if Perez is confirmed as Secretary.

One of the largest areas of concern is how Perez will use his powers to force employers to modify their employment policies in order to favor the hiring of persons based on their skin color, ethnicity, or gender.

The DOL Office of Federal Contract Compliance (OFCCP) has jurisdiction pursuant to Executive Order 11246 over any business that has federal contracts in excess of $10,000. The Executive Order requires these businesses to “not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin.” While this is good in theory, the way that DOL has been enforcing this requirement is problematic. Instead of using colorblind, neutral employment criteria, employers are forced to take race, ethnicity, and gender into consideration.

The OFCCP has adopted an enforcement strategy where they look not only at intentional discrimination by businesses against an individual or class of individuals, but they also look at other factors that they believe may lead to discrimination. This is known as the disparate impact theory. The theory would deem unlawful employment criteria that are facially neutral if those criteria can be shown to have an adverse impact on a particular class of individuals.

As such, a business is not safe by merely having in place good employment policies that prohibit discrimination, but they are in jeopardy if the racial, ethnic, or gender composition of their workplaces is out of sync with what OFCCP believes it should be. They are also not safe if they have disfavored employment criteria that are designed to protect the business.

One such criterion is the use of criminal background checks as part of the process of vetting potential employees. The OFCCP has already moved in this direction by issuing a directive deeming that such background checks may be unlawful. The OFCCP “recommends, if and when contractors make such inquiries, the inquiries are limited to convictions for which exclusion would be job-related for the position in question and consistent with business necessity.”

The OFCCP using these disparate impact theories has sought massive settlements from large businesses merely because OFCCP determined using statistical analysis of the employer’s workforce that some class of individuals was underrepresented or overrepresented. In one instance OFCCP determined that an employer, in the opinion of OFCCP, had too many Asians on staff and fined that employer.

In his current position at the Department of Justice, Perez has pushed policies using the disparate impact theory. He even tried to force the New York Fire Department to hire applicants who failed the written exam because he didn’t like the racial composition of those who passed.

In addition to Perez having a tendency to stretch the law to where it does not fit, he also has a history of working to prevent enforcement of laws which he disfavors, such as those in the immigration field.

Perez from 1995 to 2000 served on the board of CASA de Maryland, an organization advocating for non-enforcement policies regarding immigration laws. They have even published pamphlets that advise on how to protect illegal immigrants from an immigration raid.

If the immigration bill that is currently under consideration in the U.S. Senate passes, the Labor Department, and Perez if confirmed, will be responsible for writing many of the regulations to implement the bill. As we have seen in the Obamacare context, the regulatory process is a monster that has made that already bad bill even worse. The same thing will happen on the immigration bill. In every area where the Secretary of Labor is given discretion you can bet that discretion will be exercised in such a way as to achieve the Administration’s goals, regardless of what Congress intended.

This could mean defining term in bill that Congress left undefined, setting the standards for certain types of visas, and pushing things like the application of prevailing wage laws to immigrants who are working in private industry. It could also mean taking actions to help unions gain additional members, something Perez has stated that he strongly supports.

And, since the Labor Department does not have a confirmed Inspector General or even an Acting Inspector General, there will be no one on the inside to keep Perez honest. The embarrassment he had with the Inspector General at the Justice Department issuing a harshly critical report of his conduct will not follow him to Labor Department.

He will be free to stretch the law where he wants and to ignore it when he so desires.

A Senate rubber stamp of his nomination is almost guaranteed to embolden him even further. It will be cold comfort to hear complaints from those very Senators who confirmed his nomination, when he proceeds along this easily predictable path. In fact, those Senators who vote for Perez will own his actions whether they like them or not.

Nathan Mehrens is the General Counsel of Americans for Limited Government.

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