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President Obama Nominates DOJ AAG Perez as Secretary of Labor

March 21, 2013

By Scott J. Wenner

Confirming the accuracy of a week-long swirl of rumors around Capitol Hill, on March 18, 2013, President Obama selected Thomas Perez to become the next Secretary of Labor. Mr. Perez presently is serving as Assistant Attorney General for the Civil Rights Division at the Department of Justice.

The selection of Mr. Perez is on a bold one, for Mr. Perez’s tenure running the Civil Rights Division has been charged with controversy over both policy and internal polarization.  A report prepared by the Inspector General (IG) of the Justice Department on his investigation into the concerns about the Division was published shortly before the Perez nomination. While the IG’s criticism of Mr. Perez was restrained, and was ladled out in equal measure to his predecessor from the Bush administration, it presents opponents of his nomination with ample ammunition with which to question his suitability for the position.

Perez’s Background

Mr. Perez, a Harvard educated lawyer and son of Dominican immigrants who worked his way through college hauling garbage, became a Montgomery County, Maryland County Councilman in 2002. Before that, he served as Deputy Assistant Attorney General for Civil Rights under President Clinton’s Attorney General Janet Reno, as a civil rights advisor to Sen. Edward Kennedy, and as president of CASA de Maryland, a Latino advocacy group for the interests of both documented and undocumented immigrants.

Before his appointment to head the Civil Rights Division, Maryland Gov. Martin O’Malley selected Mr. Perez to run Maryland’s Department of Labor, Licensing and Regulation. Gov. O’Malley praised Mr. Perez, crediting him with “establish[ing] an aggressive portfolio that helped Marylanders weather a changing new economy.”  During that period Mr. Perez also served with several organizations linked to prominent progressive George Soros, including the Public Health Institute, the progressive think tank Center for American Progress, and ActionAid, an anti-poverty group funded by a Soros sponsored organization.

Opposition from Republicans

Immediate protest from Republican members of both the Senate and the House comes as no surprise given the controversy sparked by the IG report’s findings, Mr. Perez’s other affiliations, his aggressive approach to the Fair Housing Act based largely on disparate impact theory, and his controversial view that the Voting Rights Act should not be enforced to protect white voters.

Louisiana Senator David Vitter declared that Mr. Perez “should be met with great suspicion” by fellow Senators because of the matters cited in the IG report and because of his alleged pressure on Louisiana’s Secretary of State to enforce the Voting Rights Act unequally. Republican Sen. Jeff Sessions of Alabama called the nomination “needlessly divisive.” Sen. Charles Grassley, the senior Republican on the Senate Judiciary Committee, raised concerns about the propriety of Fair Housing Act enforcement under Mr. Perez, which is the subject of an ongoing Congressional investigation. The leadership of the House Education and Workforce Committee also criticized Mr. Perez’s appointment based on his “controversial” background.

Supporters

Equally unsurprisingly, Democrats have come to Mr. Perez’s defense.  In addition to Gov. O’Malley, Sen. Patrick Leahy, Chairman of the Senate Judiciary Committee, called Mr. Perez a “fierce defender of workers’ rights” who is “uniquely suited” for the job.  Likewise, Richard Trumka, head of the AFL-CIO, applauded Mr. Perez’s appointment, declaring, “working families need and deserve a strong advocate as their Secretary of Labor — one who will vigorously enforce job safety standards, wage laws, and anti-discrimination rules, and who will speak out forcefully for working families and their workplace rights, including their right to join together to improve their lives and working conditions.”

What Does the Perez Nomination Mean?

It is far from certain at this moment that Mr. Perez will be confirmed by the Senate.  Should he become Secretary of Labor, Mr. Perez, who has shown a prosecutorial mindset, will lead an organization far more dedicated to enforcement and with far more resources for that purpose than it was before former Secretary Hilda Solis became Labor Secretary in 2009. Assuming he retains Patricia Smith as Solicitor of Labor, the Department’s litigation will be led by a Secretary and a Solicitor who see eye to eye in taking an aggressive, punitive approach to enforcement against employers – one reason union leaders such as the AFL-CIO’s Trumka is supportive of Mr. Perez’s nomination.

The ambitious regulatory agenda proposed and pursued during the Solis years by the Department’s sub-agencies – the Wage & Hour Division (WHD), OFCCP, OSHA, OLMS and others – the so-called “Plan/Prevent/Protect” scheme – became badly stalled internally and in efforts to secure necessary approval by the Office of Management and Budget. While retention of the sub-agency heads by a Perez Labor Department is not a foregone conclusion, certainly those who remain are sure to restart the process of proposing the aggressive sub-agency regulations that form the essence of what was, and still may be referred to as the Plan/Prevent/Protect agenda.  These include OSHA’s Injury and Illness Prevention Plan, and WHD’s “Right to Know” regulations, OFCCP’s regulations on affirmative action for handicapped workers and veterans, the OLMS persuader regulations, to name a few.

Future posts will review the leftover regulatory agenda in greater detail.

For more information regarding this or other labor and employment issues, please contact Scott J. Wenner,  chair of Schnader’s Labor and Employment Practices Group. 

The materials posted on Schnader.com and SchnaderWorks.com are prepared for informational purposes only and should not be considered as providing legal advice or creating an attorney-client relationship. Please see our disclaimer page for a full explanation.

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