Who Puts These Guys in Charge?

From the “you can’t make this stuff up” category: following in the fine tradition (starting with the workplace bully John Bolton) of putting leading critics in charge of the very organization whose work they’ve devoted their life to eviscerating, the Administration has nominated two individuals to key positions at the EEOC and Department of Labor who have spent their careers fiercely opposing workers’ claims. It wouldn’t have anything to do with the declining number of claims and reduced amount of litigation coming out of those agencies, would it? Could it really be that the key qualification for playing a leadership role in an organization whose mandate is to protect the rights of workers is to first demonstrate a high level of proficiency in trying to demolish those rights?

Many critics questioned whether John Bolton was the right person to become our nation’s ambassador to the United Nations, given his expressed disdain for the U.N. (See Washington Post article.) (We questioned his fitness because of how he treated the people who work for him, and surprisingly enough, it was enough of an issue for him to have to face some embarrassing questions.) After his nomination was stalled in Congress, President Bush went ahead and issued a recess appointment that did not require Congressional approval. (See CNN article.) Now he’s opposing the establishment of a new U.N. Human Rights Council, a vote he lost 170 to 4. (See Forward article, written by Kathleen Peratis, author of one of our site’s sexual harassment pages.) There’s no word on how he’s treating his employees, however.

Knowing about Bolton’s nomination, it shouldn’t be too surprising that now we’re facing two more nominees of the same ilk. While the General Counsel of the Equal Employment Opportunity Commission and the head of the Department of Labor’s Wage and Hour Division aren’t nearly such high profile positions as that of U.N. Ambassador, many more American workers could face adverse treatment if the current nominees’ history is any indicator.

Last week, the President announced the nomination of Ronald S. Cooper to the position of EEOC General Counsel. Cooper has been a defense lawyer at the law firm of Steptoe and Johnson for over 30 years. His firm profile reads, in part, as follows:

Mr. Cooper has defended employers in federal courts throughout the country in employment discrimination actions brought under Title VII of the Civil Rights Act of 1964 (Title VII), the Equal Pay Act of 1963, the Age Discrimination in Employment Act of 1967 (ADEA), and the Americans with Disabilities Act (ADA)….Mr. Cooper also defends employers who are subject to administrative investigations and proceedings including Commissioner Charge investigations by the Equal Employment Opportunity Commission (EEOC), and Compliance Reviews by the Office of Federal Contract Compliance Programs (OFCCP)…..Mr. Cooper testified on behalf of employers in the US House of Representatives in opposition to the retroactivity features of the Civil Rights Act of 1990. The Civil Rights Act of 1991, as finally enacted, did not include these provisions.

Compare this to the stated mission of the General Counsel’s Office, which is “to conduct litigation on behalf of the Commission to obtain relief for victims of employment discrimination and ensure compliance with the statutes that EEOC is charged with enforcing.” (See 2005 Office of General Counsel report.) You’d think the guy in charge would need to have some specific experience doing the office’s work. But Mr. Cooper doesn’t appear to have an iota of experience “obtaining relief for victims of employment discrimination.”

All his efforts have been focused on representing employers, and if he wasn’t good at it, he probably wouldn’t be chair of the firm’s labor standards practice, or the Management Chair of the American Bar Association’s Section of Labor and Employment Law Committee on International Labor Law. In fact, his testimony before Congress, as described above, resulted in less relief for employment discrimination victims, and he has undoubtedly in his career been forced to oppose the EEOC’s efforts in cases against his clients.

Cooper’s nomination comes on the heel of the EEOC’s recent announcement of its litigation statistics for fiscal year 2005. After increases in the monetary damages awarded to employees in 2003 and 2004, this year’s total was over $60 million less than last year’s. (See EEOC Litigation Statistics.) The number of charges filed in 2005 was also down 5 percent, and that number has gone down every year since FY 2002. (See EEOC Charge Statistics.) EEOC Chair Cari M. Dominguez attributes the decrease to more aggressive efforts to promote voluntary compliance by providing training about the laws to employers. (See Washington Post article.)

For the head of the Department of Labor’s Wage and Hour Division (WHD), the President in January nominated Paul DeCamp. DeCamp, with the law firm of Gibson Dunn & Crutcher, has a background similar to Cooper’s (although unlike Cooper, who has been practicing for 30 years, DeCamp graduated from law school in 1995). His firm profile tells us:

Mr. DeCamp has represented employers in numerous class and collective actions involving the Employee Retirement Income Security Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Fair Labor Standards Act, and state wage and hour laws, as well as cases brought by individuals. Mr. DeCamp has defended employers against union organizing campaigns and unfair labor practice charges; provided advice regarding acquisition of unionized businesses, including successorship issues; and challenged union election-related misconduct. Mr. DeCamp advises employers regarding the full range of employment law issues, including wage and hour law compliance, internal investigations, equal employment opportunity concerns, employee discipline and terminations, and Service Contract Act issues.

The AFL-CIO, which is opposing his nomination, also wants you to know what his firm resume neglected to specifically mention:

  • DeCamp represented Wal-Mart in trying to prevent a class of 1.5 million women—the largest employment class action ever certified—from suing the company for discrimination in pay and promotions.
  • He has proposed taking overtime pay away from workers in ways that were even more extreme than what the administration actually has done—and suggested easy outs for bosses who misclassify workers as not eligible for overtime pay.
  • He’s represented businesses opposing union organizing campaigns and fighting unfair labor practice charges.
  • He’s represented an employer appealing a record $40 million dollar sexual harassment verdict.
  • And he’s fought on the bosses’ sides on collective and individual actions involving the Employee Retirement Income Security Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Fair Labor Standards Act and state wage and hour laws.

(See AFL-CIO blog post of March 30, 2006.)

Again, let’s compare what DeCamp’s been up to for the last decade to what the Wage and Hour Division is supposed to be doing, which is “administering and enforcing some of our nation’s most comprehensive labor laws, including: the minimum wage, overtime, and child labor provisions of the Fair Labor Standards Act (FLSA); the Family and Medical Leave Act (FMLA); the Migrant and Seasonal Agricultural Worker Protection Act (MSPA); worker protections provided in several temporary visa programs; and the prevailing wage requirements of the Davis-Bacon Act (DBA) and the Service Contract Act (SCA).” (See Wage and Hour Division home page.) Whatever DeCamp’s relatively limited experience has been, enforcing the labor laws which protect workers doesn’t seem high on his list.

But if you agree with the direction in which the WHD is headed, DeCamp’s nomination makes much more sense. This year’s enforcement statistics indicate that the WHD this year collected the lowest total of back wages in four years from employers accused of violating federal wage-and-hour laws, with $30 million less collected this year when compared to last year. (See 2005 Statistics Fact Sheet.) Just like at the EEOC, commentators claim that employers are doing a better job with complying with the law, but might it be that fewer employees are even bothering to pursue their claims through the administrative agencies at this point?

Having experience in enforcing our nation’s employment laws for the workers they were enacted to benefit is obviously an optional qualification for these two nominees. Or perhaps their lack of experience is a very good qualification, when you don’t intend for the agencies they will head to be doing nearly as much enforcement anyway.

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Madeline Messa

Madeline Messa is a 3L at Syracuse University College of Law. She graduated from Penn State with a degree in journalism. With her legal research and writing for Workplace Fairness, she strives to equip people with the information they need to be their own best advocate.