Congress prepares to kill more jobs - minimum wage

Mandating Unemployment. WSJ Editorial
Congress prepares to kill more jobs.
WSJ, Jul 13, 2009


Here's some economic logic to ponder. The unemployment rate in June for American teenagers was 24%, for black teens it was 38%, and even White House economists are predicting more job losses. So how about raising the cost of that teenage labor?

Sorry to say, but that's precisely what will happen on July 24, when the minimum wage will increase to $7.25 an hour from $6.55. The national wage floor will have increased 41% since the three-step hike was approved by the Democratic Congress in May 2007. Then the economy was humming, with an overall jobless rate of 4.5% and many entry-level jobs paying more than the minimum. That's a hard case to make now, with a 9.5% national jobless rate and thousands of employers facing razor-thin profit margins.

There's been a long and spirited debate among economists about who gets hurt and who benefits when the minimum wage rises. But in a 2006 National Bureau of Economic Research paper, economists David Neumark of the University of California, Irvine, and William Wascher of the Federal Reserve Bank reviewed the voluminous literature over the past 30 years and came to two almost universally acknowledged conclusions.

First, "a sizable majority of the studies give a relatively consistent (though not always statistically significant) indication of negative employment effects." Second, "studies that focus on the least-skilled groups [i.e., teens, and welfare moms] provide relatively overwhelming evidence of stronger disemployment effects."

Proponents argue that millions of workers will benefit from the bigger paychecks. But about two of every three full-time minimum-wage workers get a pay raise anyway within a year on the job. Meanwhile, those who lose their jobs or who never get a job in the first place get a minimum wage of $0.

Mr. Neumark calculates that the 70-cent per-hour minimum wage hike this month would kill "about 300,000 jobs for those between the ages of 16-24." Single working mothers would also be among those most hurt.

Keep in mind the Earned Income Tax Credit already exists to help low-wage workers and has been greatly expanded in recent years. The EITC also spreads the cost of the wage supplement to all Americans, not merely to employers, so it doesn't raise the cost of hiring low-wage workers.

For example, consider a single mom with two kids who earns the current $6.55 minimum at a full-time, year-round job. In 2009 she receives a $5,028 EITC cash payment from Uncle Sam -- or about an extra $2.50 per hour worked. Other federal income supplements, such as the refundable child tax credit, add another $1,900 or so. Thus at a wage of $6.55 an hour, her actual pay becomes $10.02 an hour -- more than a 50% increase from the current minimum. (See nearby table.)

But that single mom can't collect those checks if she doesn't have a job, and the tragedy of a higher minimum wage is that it will prevent thousands of working moms striving to pull their families out of poverty from being hired in the first place.

If Congress were wise and compassionate, it would at least suspend the wage hike for one or two years until the job market recovers. We know this Congress won't do that, but someone has to speak up for the poorest, least skilled Americans.

A Primer on the Employee Free Choice Act's Arbitration Provision

A Primer on the Employee Free Choice Act's Arbitration Provision. By F. Vincent Vernuccio
CEI, Jun 25, 2009

In the ongoing debate over the Employee Free Choice Act (EFCA, H.R. 1409, S 560), the Act’s card check provision has received a great deal of attention. This provision would effectively eliminate the secret ballot in union certification elections in favor of the card check process, in which union organizers ask workers to sign union cards out in the open. This exposes workers to high-pressure tactics that the secret ballot is designed to avoid. By focusing on its undemocratic nature, EFCA opponents have helped muster popular opposition to card check, and the bill has failed to move forward in Congress. However, EFCA supporters are now looking to craft a “compromise,” which would retain other harmful provisions in EFCA.

The Employee Free Choice Act’s Section 3, “Facilitating Initial Collective Bargaining Agreements,” has not received nearly as much attention as card check, but its implications could be enormous. If enacted as part of an EFCA “compromise,” it could fundamentally change the way businesses deal with their employees. Section 3 of EFCA empowers the federal government to impose mandatory binding compulsory interest arbitration, whereby government representatives are enjoined to create a fresh contract from scratch. It would allow the government to write “first contracts” between employers and unions even if one party objects.

Full Document Available in PDF

Keeping older employees will help maintain success

Aging Your Work Force, by Jeffrey Joerres
Keeping older employees will help maintain success.
WSJ, Apr 09, 2009

It's too soon to tell how the current global recession will affect the one of the greatest challenges facing corporate leaders over the next decade: the coming explosion in the number of workers at retirement age, and the inadequate pool of younger workers to fill those roles. Companies that haven't started planning for this transition have some catching up to do.

The loss of productivity and intellectual capital as baby boomers leave the work force could devastate some businesses. Europe's work force will begin shrinking in the coming years and is expected to become 15% smaller within five decades, according to the Organization for Economic Cooperation and Development. The countries that face the biggest threat are those with the oldest populations, particularly Germany and Italy.

Yet most firms seem woefully unprepared for this development. A 2007 Manpower survey of more than 28,000 employers across 25 countries and territories revealed that only 14% have strategies in place to recruit older workers, and only 21% have retention strategies to keep these workers on board.

More troubling, employers still seem to view coming retirements as cost-saving opportunities. This view is dangerous and shortsighted. Employers will need to shift their mindset and, in the short term, take steps to slow the exodus of older workers whose skills and knowledge are most valued. The conundrum is that the people with the skills that companies most need to retain are those who have the greatest financial flexibility to retire.

Part of the problem is that employers assume that all employees want to exit the work force as soon as they are financially able. However, especially given the current economic climate, a growing number of employees may be willing to work for years to come. Even in countries with state-funded pensions, which traditionally have encouraged earlier retirement, retirees may struggle in the future. Many national governments project pension-funding shortfalls as too few active workers pay for retirement programs with their payroll taxes.

The best way to stem the flow of older workers is to provide the type of employment they seek, and to keep them engaged by emphasizing their place as valued members of the team.

One of the biggest mistakes companies make is to alienate employees aged 50 and older by assuming they are no longer interested in training and career development. CEOs and other senior executives tend to be in their 50s or 60s, yet it is regularly assumed that middle managers of the same age are no longer interested in challenging work and development. If a former CEO is qualified to serve on a Fortune 500 firm's board of directors in his 70s, why wouldn't a manager at a comparable skill and experience level be just as capable of working in another capacity at the same age? Employers should not assume that retirement-age workers are only qualified for, or interested in, roles with low responsibility, such as volunteering at a hospital or serving as a "greeter" at a store.

The key to retaining older workers is to recognize that their priorities are changing, and to find roles that are of value to both them and the organization. Today, there are too few options available for individuals who wish to remain with their current employer, but in a modified working relationship as they transition toward retirement. This is a key reason why employers are losing older workers to self-employment. To date, the typical corporation's answer has been to offer the individual more money to stay and perform the same full-time job for an extended period of time, when he might prefer to work in a part-time arrangement.

An employer that offers flexible work options to both older and younger employees may find a distinct competitive advantage in recruiting and retaining employees. As the talent shortage grows, the balance of power in the employer-employee relationship continues to shift toward employees. They may be more likely to stay with their companies if they can improve their work-life balance, perhaps by having the flexibility to attend a grandchild's school play or care for an ill spouse.

At the same time, employers need to prepare successors to perform in critical roles and learn as much as possible before these expert resources leave the workplace. Long before key older employees leave, firms should develop transition and knowledge-transfer plans to ensure that they retain as much intellectual capital as possible. This should involve determining which roles are at highest risk of "brain drain," identifying high-potential candidates to succeed retirees, and ensuring their development is aligned with the retirees' exit cycle.

Developing a plan to preserve critical information, processes and contacts is vital. This can be done through mentoring programs or by building companywide groups that meet in person and online to share information. Another option is to develop a pool of retired employees to work as needed on specific projects, enabling the company to tap into their collective experience and retain this knowledge longer.

Longer term, employers will need to better use the talent of each employee throughout his career. Companies might do this by offering periodic skill and career-interest assessments and training programs, and by aligning individuals' interests and abilities to the needs of the organization so that they remain relevant and engaged. There will be no room for wasted talent in tomorrow's streamlined and talent-poor organizations.

This new approach to talent management will affect how individuals prepare for retirement. The second half of life must be planned just as carefully as the first half, particularly given changes in life expectancy and in some state pensions. To remain relevant to retirement-age workers, employers might offer to help them plan for the transition to the next phase of their lives. Such programs could address a host of possible work-life balance options, and a variety of potential financial impacts from both the individuals' choices and their personal situations.

There is also a clear need for national governments to focus their attention on these issues if they want a competitive labor market that will strengthen the country's future economy.

Some governments are already developing initiatives and incentives for companies to employ older workers, which in turn promote those workers' welfare and job security. The challenge for national governments is to align the interests and abilities of mature adults with the interests and requirements of employers -- and to do this before the pension bubble bursts, wreaking havoc on other areas of society.

Sustainable and growing economies will not be possible in the future without strong and vibrant labor markets, including those workers who helped contribute to growth in the past.

Mr. Joerres is chairman and CEO of Manpower Inc.

EFCA replaces collective bargaining with government-imposed contracts for newly organized companies

EFCA Authorizes Government Control of 4 Million Small Businesses. By James Sherk
Heritage WebMemo #2341, March 12, 2009

The Employee Free Choice Act (EFCA, H.R. 1409, S. 560) does more than take away secret ballot elections: It empowers the federal government to impose contracts on newly organized companies. The government would set wages, benefits, work assignments, promotion procedures, and any major changes to business operations. Because EFCA has no meaningful small businesses exemption, it would authorize federal control of up to 4 million small businesses employing 39 million Americans. Consequently, bureaucrats with no management experience would effectively control these small businesses.


Four Million Small Businesses Affected

The misnamed Employee Free Choice Act affects both large and small businesses. The National Labor Relations Act (NLRA) has a small business exception. However, this exemption has not been updated for inflation since 1959.[1] It covers all non-retail businesses with gross revenues of $50,000 a year and retail businesses with gross revenues over $500,000 a year.[2]

To put those figures into perspective, the average private-sector worker costs his or her employer $56,000 a year in wages and benefits--before the cost of any capital needed to do the job.[3] A business with one worker earning average pay would not qualify. Consequently, the law has no meaningful small businesses exemption.

The Heritage Foundation used Census Bureau data to calculate how many small businesses EFCA would affect: The act covers 4,180,000 businesses employing 38,934,000 workers.[4]


EFCA's Other Provision

EFCA takes away these workers' right to a secret ballot vote on joining a union--a consequence that has attracted considerable controversy. However, the bill has a second provision of equal if not greater significance to small businesses that has attracted much less attention: EFCA replaces collective bargaining with government-imposed contracts for newly organized companies. Section 3 of the act provides that, after unions organize a business, the company has 10 days to meet with union officials to begin collective bargaining. After 90 days of bargaining, either party may request mediation by the Federal Mediation and Conciliation Service (FMCS). Thirty days later, if the parties have not settled on a contract or agreed to extend negotiations, the FMCS shall refer the dispute to an arbitration board established in accordance with such regulations as may be prescribed by the service. The arbitration panel shall render a decision settling the dispute, and such decision shall be binding upon the parties for a period of two years, unless amended during such period by written consent of the parties.[5]

In place of collective bargaining, the government would impose a contract for two years. In practice, EFCA will effectively eliminate collective bargaining for initial contracts because the system provides no reason for unions not to hold out for a government contract. Unions would have strong incentives to make extreme demands and hope the FMCS appointed arbitrator splits the difference between these demands and management's position.[6]


Bureaucrats Control the Workplace

Granting such a radical amount of power to the FMCS puts control of workplaces in the hands of unaccountable government bureaucrats. Labor contracts do not simply set wage and benefit levels but cover many aspects of how businesses operate. Under EFCA government bureaucrats would impose:

• Wages and bonuses;
• Employment levels;
• Retirement and health care plans;
• Changes in business operations;
• Promotions procedures;
• Work assignments;
• Subcontracting; and
• Closure, sale, or merger of a business.[7]

The government would decide how many employees a firm hired, how much it paid them, how it promotes them, and what retirement and health benefits they receive.
Additionally, the government would also be empowered to make critical decisions regarding business operations. Any business operation that significantly affects workers' jobs or working conditions would be set by arbitrators--even the equipment employees use.[8] The government would determine what tasks a firm subcontracts out for and what work gets performed in-house. For two years, government bureaucrats would set most major business decisions for newly organized businesses. Given the power the government would now wield over the private sector, EFCA effectively allows the government to run these companies.


Businesses at Risk

Government control would harm any company, but it would be particularly hard for small businesses to recover from government mistakes because they have less money with which to absorb losses. Consider a small car-repair shop that employs five mechanics. Teamster organizers take three of the mechanics out for beer after work and persuade them to sign union cards before hearing opposing arguments. The Teamsters--under EFCA's card check recognition requirements--then represent all five workers in the shop. If, after four months of negotiations, the owner and the union had not reached a contract--perhaps because the union insisted on extreme demands such as firing any worker who did not join the Teamsters--the union could request meditation through the FMCS. After a lengthy process, approximately 15 months in the public sector, the government would impose a contract.[9]

At that point both the small business owner and the mechanics would lose all control over their workplace. Workers have no vote on the contract and they cannot go on strike; workers must accept whatever the government chooses for them.

For instance, the government could:

• Decide that the shop needed to hire two new mechanics while setting wage rates higher than competing repair shops,
• Take away employee health benefits,
• Prevent the shop from installing new labor saving machines,
• Force the shop to fire any worker who does not pay union dues,
• Force the workers into an under-funded union pension plan,
• Impose work rules that prevent the most experienced mechanic from handling the most difficult jobs (unpleasant tasks would be assigned to less senior mechanics), and
• Determine which employee gets the next promotion, irrespective of merit.

Many of these provisions would drive up costs and force the repair shop to raise prices. But if higher prices drove customers to a competitor, putting the shop out of business, the government would not protect the mechanics' jobs. EFCA forces workers to accept whatever the government gives them and live with the consequences.

Government Control of Small Businesses

The misnamed Employee Free Choice Act puts control of small businesses in the hands of government bureaucrats because it contains no meaningful small business exemption. About 39 million employees from 4 million small businesses would lose their right to a secret ballot. EFCA then allows the government to impose contracts on newly organized small business employees. The federal government, not workers or their employers, would decide how much workers should earn, how--and if--they are promoted, and what benefits they receive. The government would assign work tasks and set business operations. The government would take control of every significant aspect of the small business workplace.

James Sherk is the Bradley Fellow in Labor Policy at The Heritage Foundation.

On Ledbetter and the media

Distorting the News, to Obama’s Advantage, by Hans Bader
Open Market/CEI, March 04, 2009 @ 3:29 pm

Distorted press coverage of a Supreme Court decision gave a big boost to the Obama campaign, which made the decision a major campaign issue by bashing and distorting it. The New York Times has since refused to correct its erroneous coverage of that decision, refusing to even read relevant portions of the very decision on which it reported, and court documents in the case, which plainly contradict its coverage. The Obama Administration and Obama campaign also made easily verifiable false claims about the decision, about which the press seems to have no interest. As a journalism professor, and legal commentator Stuart Taylor, have noted, press coverage of the decision “stank“, and was simply “lousy.”

In Ledbetter v. Goodyear (2007), the Supreme Court held that a woman who had waited five years after learning of pay disparities to file an EEOC complaint, and decades after her pay was allegedly set lower than her male peers, could not later sue for discrimination under a civil-rights law known as Title VII, since that law has a 180-deadline. In its ruling, the Court held that plaintiffs generally must sue within 180 days after a discriminatory pay level is set, and that it is not enough that the plaintiff sued within 180 days after a subsequent paycheck or pension benefit affected by the discrimination, which could be many, many years later.

The court specifically left open, however, the possibility that a plaintiff could sue more than 180 days after the discriminatory pay decision if the plaintiff did not discover that the decision was discriminatory until much later. In footnote 10 of its decision, it wrote, “We have previously declined to address whether Title VII suits are amenable to a discovery rule. . .Because Ledbetter does not argue that such a rule would change the outcome in her case, we have no occasion to address this issue.”

Despite that fact, however, New York Times reporter Linda Greenhouse falsely reported that the 180-day deadline “applies, according to the decision, even if the effects of the initial discriminatory act were not immediately apparent to the worker.” See Linda Greenhouse, “Justices Ruling Limits Suits on Pay Disparities,” New York Times, May 30, 2007.

Although the plaintiff, Lilly Ledbetter, had admitted in her deposition that she had been informed by 1992 of the pay disparity she later sued over, and had cited it herself to her boss by 1995, Greenhouse also falsely claimed that the Supreme Court rejected Ledbetter’s claim because “she learned of her fate” at the end of her career, “too late, according to the Supreme Court’s majority.”

Despite the fact that the Supreme Court had explicitly left open the possibility that Ledbetter could have sued if she hadn’t known about the discrimination against her, other New York Times reporters, relying on Greenhouse, stated just the contrary. For example, Adam Liptak stated that “Ms. Ledbetter lost her case because she had discovered the disparity between her pay and that of her male colleagues too late.” See Liptak, “Justices Hear Bias Case on Maternity, Pensions, and Timing,” New York Times, Dec. 11, 2008, at pg. B7. And Sheryl Gay Stolberg similarly stated that Ledbetter discovered only “when she was nearing retirement that her male colleagues were earning much more than she was.” See Stolberg, “Obama Signs Equal-Pay Legislation,” New York Times, January 29, 2009.

Other papers, such as the Los Angeles Times, made more extreme, and obviously false, claims about the decision. The Los Angeles Times falsely claimed that under the Ledbetter ruling, “any employer that could hide discrimination for six months could get away with it.” And the Pittsburgh Post-Gazette erroneously stated that Lilly Ledbetter was not allowed to sue more than 180 days after her first unequal paycheck even though “she did not know she was being discriminated against until near the end of her career when she sued.” And the Washington Post incorrectly claimed that the decision “limited Ledbetter’s ability to sue after she discovered that Goodyear had been paying higher salaries to her male counterparts for nearly 20 years.” See Editorial, “The Lilly Ledbetter Fair Pay Act Is Back,” Los Angeles Times, Jan. 10, 2009; Editorial, “Lilly’s Cause: Obama Can Correct An Injustice of the Bush Years,” Pittsburgh Post-Gazette, Jan. 12, 2009; Richard Leiby, “A Signature with the First Lady’s Hand on It,” Washington Post, Jan. 30, 2009, at C1.

But as even the liberal employment lawyer David Copus, who brought landmark pay discrimination lawsuits for the EEOC, has noted, Ledbetter suspected for years that she was discriminated against, and the Supreme Court left intact employees’ ability to sue when employer deception leaves employees unaware of discrimination against them. See Davis A. Copus, “Pay Discrimination Claims After Ledbetter,” Defense Counsel Journal, Volume 75, page 300 (Oct. 1, 2008).

As Copus notes, “Ledbetter admitted at her deposition that ‘different people that [she] worked for along the way had always told [her] that [her] pay was extremely low.’ She recalled that her manager told her in 1992 that her pay was lower than that of other Area Managers, and that by 1994 or 1995, she had learned the amount of the difference. In 1995, Ledbetter told her supervisor that she ‘needed to earn an increase in pay’ because she ‘wanted to get in line with where [her] peers were, because . . . at that time [she] knew definitely that they were all making a thousand [dollars] at least more per month.’” Yet she waited to sue until shortly before she retired, and after the supervisor she accused of discrimination died!

As legal commentator Stuart Taylor observed in the National Journal, “Ledbetter waited more than five years after learning that she was paid substantially less than most male co-workers to file her Title VII claim.” See Stuart Taylor, “Does the Ledbetter Law Benefit Workers, or Lawyers? Democrats and the Media Have Distorted the Facts Underlying the New Equal Pay Law,” National Journal, Jan. 31, 2009.

Given Ledbetter’s tardiness and longstanding knowledge that she might have been discriminated against, her lawyer didn’t even claim that she could take advantage of the Supreme Court’s exceptions to the deadlines for workers whose employers conceal evidence of discrimination, leaving them unaware of discrimination, such as “equitable tolling” and “estoppel.” See Zipes v. Trans World Airlines, 455 U.S. 385, 393 (1982) (”filing a timely charge of discrimination with the EEOC is . . . a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling”).

When I, a lawyer with expertise in discrimination claims, sent an email to the New York Times noting its inaccurate reporting, and citing its conflict with Ledbetter’s deposition, and the writings by legal commentators like David Copus and Stuart Taylor, I received an email in response from senior editor Greg Brock, claiming that the New York Times’ reporting couldn’t possibly be wrong. Why? Because so many other newspapers had made the same claims the New York Times did, and because its reporting was consistent with the self-serving claims that the plaintiff Ledbetter later made (with no evidence whatsoever) — never mind that those claims were inconsistent with plaintiff Ledbetter’s own admissions in her deposition, and inconsistent with what the Supreme Court said in its decision! Apparently, the pervasiveness of a media error makes it unquestionable.

In his January 30 email, Mr. Brock wrote:

“I do not know where Mr. Taylor came by his information. But if you do your research, you will see that dozens of news organizations have consistently reported the following background on the Ledbetter case:

Lilly Ledbetter worked for Goodyear for 19 years before accepting an early retirement offer in 1998. Shortly before she left Goodyear, Ledbetter received an anonymous memo revealing that the other shift supervisors with the same title and the job responsibilities she had, were paid between 14-30% more than she was earning. The decision to pay Ledbetter less than her male co-worker had been made years earlier by a supervisor who did not believe women belonged at Goodyear, and certainly not working as supervisors. Until Ledbetter got this memo, she did not know she had been shortchanged all those years. Ledbetter sued, and in the course of the lawsuit, Goodyear’s records confirmed the anonymous tip — the sole woman supervisor was paid far less than the men in the same positions.

The following statement was also presented by Ms. Ledbetter in testimony before Congress, when she explained:

‘I only started to get some hard evidence of what men were making when someone anonymously left a piece of paper in my mailbox at work, showing what I got paid and what three other male managers were getting paid. I thought about just moving on, but in the end, I could not let Goodyear get away with their discrimination. So I filed another complaint with the EEOC in 1998. After I filed my EEOC complaint and then filed a lawsuit, I was finally able to get the whole picture on my pay compared to the men’s. It turned out that I ended up getting paid what I did because of the accumulated effect of pay raise decisions over the years.’
She retired in 1998. So this shows that she did indeed learn the story not long before her retirement.”

This is not the only error made by the Times. As the Wall Street Journal’s James Taranto has pointed out, the Times falsely suggested, contrary to all evidence, that the Ledbetter decision was the result of a supposedly pro-plaintiff female justice — Sandra Day O’Connor — being replaced by a supposedly pro-defendant male justice — Samuel Alito. Linda Greenhouse, the Times’ Supreme Court reporter, claimed that the 5-to-4 decision “showed the impact of Justice Alito’s presence on the court. Justice Sandra Day O’Connor, whom he succeeded, would almost certainly have voted the other way, bringing the opposite outcome.”

In reality, Justice Sandra Day O’Connor was at least as tough in enforcing deadlines for suing against discrimination plaintiffs as the male justice who replaced her, Samuel Alito. She had dissented against the Supreme Court’s earlier generous interpretation of the statutory deadline for sexual and racial harassment plaintiffs in the case of National Railroad Passenger Corporation v. Morgan, 536 U.S. 101 (2002), arguing that the deadline as interpreted by Justice Clarence Thomas’s majority opinion was too generous to plaintiffs.

By contrast, on the Third Circuit Court of Appeals, then-judge Alito, prior to his elevation to the Supreme Court, had argued for a more generous interpretation of the deadline for suing under another discrimination law, 42 USC 1981, arguing it should be expanded to four years (see Zubi v. AT&T, 219 F.3d 220 (3d Cir. 2001)) — a position that conflicted with some federal court rulings, but was ultimately upheld by the Supreme Court in Jones v. R.R. Donnelley & Sons, 541 U.S. 369 (2004).

In signing his first bill into law — a bill to override the Supreme Court’s Ledbetter decision — Obama didn’t let facts get in the way of a good story, or milking a political wedge issue. He falsely claimed that Lilly Ledbetter, whose pay discrimination claim was dismissed by the Supreme Court as untimely, worked at Goodyear “for nearly two decades before discovering that for years, she was paid less than her male colleagues for doing the very same work.” Actually, Ledbetter knew by 1992, if not earlier, that she was being paid less than the male employees she claimed should have been paid the same as her. Small wonder that the Supreme Court’s 2007 ruling in Ledbetter v. Goodyear dismissed her claim as untimely.

Similarly, the White House falsely claimed that “The Court ruled that employees subject to pay discrimination like Lilly Ledbetter must file a claim within 180 days of the employer’s original decision to pay them less . . . even if the employee did not discover the discriminatory reduction in pay until much later (check out Justice Alito’s arguments in the Court’s opinion).”

This is misleading, and perhaps knowingly so, since the White House linked to the very court decision it distorts. First, the Court never said there was a rigid deadline that bars claims by employees who “did not discover” discrimination “until much later.” Ledbetter never argued that the deadline should be suspended based on her employer concealing discrimination against her, because she in fact knew for years about the pay disparity she later sued over. If she truly had been in the dark about the alleged discrimination, she could have sought to take advantage of exceptions to the deadline that suspend it, like waiver, estoppel, and equitable tolling, under the Supreme Court’s decision in Zipes v. Trans World Airlines, 451 U.S. 385, 398 (1982). But she never made that argument, because, as she testified in her deposition, she had been told many years earlier that she was being paid less than the men she later claimed ought to have been paid the same as her.

Nor did she argue that the outcome of her case would have been changed if the Supreme Court recognized an even broader extension to the deadline for employees who are unaware of the discrimination against them, the so-called discovery rule. As the Supreme Court specifically noted in footnote 10 of its opinion, “we have previously declined to address whether Title VII suits are amenable to a discovery rule. . . .Because Ledbetter does not argue that such a rule would change the outcome in her case, we have no occasion to address this issue.” In short, since Ledbetter had long known of the facts underlying her discrimination claim, relaxing the deadline for employees who “did not discover” the discrimination until much later would have done her no good.

But in the 2008 election campaign, Obama and state democratic parties falsely claimed that the Supreme Court had created a rigid 180-day deadline for bringing discrimination claims, regardless of whether the employer conceals evidence of discrimination. The 2008 campaign featured TV ads from Obama, and mass mailings by state Democratic Parties, falsely claiming that McCain backed wage discrimination against women, simply because he did not support a bill to override the Supreme Court’s Ledbetter decision. Amazingly, the McCain campaign did almost nothing to counter those attacks.

Press coverage suggesting that the Ledbetter decision created a rigid 180-day deadline for pay discrimination claims was also faulty because it ignored the fact that the 180-day deadline only applies to plaintiffs who choose to sue only under the law with the shortest deadline, Title VII. Pay discrimination claims can also be brought under the Equal Pay Act, which has a longer three-year deadline for most claims, and more generous accrual rules as well. And race discrimination claims can be brought under 42 USC 1981, which has a long four-year deadline.

The Supreme Court specifically noted that the plaintiff could have sued instead under the Equal Pay Act, observing that plaintiff “having abandoned her claim under the Equal Pay Act, asks us to deviate from our prior decisions in order to permit her to assert her claim under Title VII.” Plaintiff Ledbetter’s lawyer admitted to the court that he had goofed by failing to press her claim under that law.

In short, it wasn’t the Supreme Court that prevented Ledbetter from suing: it was her own incompetent lawyer, and her own tardiness in suing after she learned of the pay disparities she claimed were discriminatory.

Industry Views: Green Jobs That Nobody Wants

1 Green Jobs That Nobody Wants, by Robert Murphy
IER, February 4, 2009

On February 3, 2009, Senator Debbie Stabenow (D-MI) and Rep. Jay Inslee (D-WA), in conjunction with union leaders and environmental groups, released their “Good Jobs First” report. Although advocates of a “green recovery” point to estimates that 456,000 green-collar jobs would be created by the stimulus package, the new Stabenow/Inslee report reveals the dirty little secret that many of these new jobs would offer low pay and poor working conditions. For example, the Good Jobs First report discusses a recycling firm in Los Angeles-which is just the type of operation that will “green” stimulus money-where workers make $8.25 an hour and receive no health insurance.

Of course, the Good Jobs First report doesn’t state the obvious conclusion: government efforts to “help” workers and “stimulate” the economy will only make things worse. Faced with the unintended consequences of their original scheme, the proponents of a green recovery want to double down and shovel more tax dollars at the problem and hope something sticks.

Although critics have pointed out the plan’s flaws since its inception, it is at least encouraging that the unions-the alleged beneficiaries of green-collar stimulus money-are beginning to realize that the deal isn’t as rosy as they have been led to believe. No matter how much politicians might like to claim otherwise, they can’t repeal the laws of economics.

“Demand curves slope downward,” economists say, meaning that people buy more of something only when its price is lower. This law applies to consumers who walk the aisles in grocery stores, but it also applies to businesses that make solar panels. To get the biggest bang of jobs “created” for the stimulus buck, those jobs have to be low-wage. The higher the pay and other perks the unions demand, the fewer jobs that employers will be able to afford-even with government subsidies.

This underscores a basic flaw in the whole notion of a green recovery. Of the millions of unemployed Americans today, not many of them have the specific background and skills necessary for the good-paying jobs that are available in the so-called green sectors of the economy. So even if the government provides the handouts, the only way to get these people into green jobs quickly is if they fill positions requiring no extensive training.

The popular pro-green recovery studies, which purport that there are plenty of American workers with the right skills to fill the new, high-wage positions, suffer from a basic flaw in their methodology. As IER pointed out in its critique of such studies, they count up the number of skilled workers in the work force as a whole, rather than counting up the qualified workers in the current pool of unemployed workers. The only way, then, that these alleged hundreds of thousands of high-paying, “green” jobs could be filled-relying on government subsidies, of course-is to siphon most of their workers away from other industries. No net jobs would be created, because the new green slot would be offset by the existing jobs vacated by the skilled worker.

Confusion between gross and net job creation is typical of the green jobs. For example, the 456,000 figure touted by the Center for American Progress does not take into account the jobs that would be destroyed by the government’s methods of paying for the necessary subsidies. The CAP estimate simply assumes that all 456,000 workers filling these new green slots would have come from the ranks of the unemployed and that the higher taxes and Uncle Sam’s increased borrowing will have no job-destroying impact on the rest of the American economy.

It is refreshing to see that even the unions are catching on. But rather than ask for a bigger handout, they should stop looking to the government to help workers. Only when the government stops trying to pick industrial winners and losers can true economic recovery begin. Only when the government stops changing the rules and throwing around hundreds of billions in borrowed money will the unemployed get good jobs in the private sector.



2 Good Jobs and Green Jobs: Which Road to Take? By Jason Lefkowitz
Change to Win, February 3, 2009 at 10:19 AM

A few days ago, I wrote about how green jobs are not automatically good jobs:

The old thinking was that it was impossible to grow the economy and clean
the environment at the same time. The green jobs movement has done important
work in freeing the world from the tyranny of that particular dead idea; thanks
to their efforts, there’s a lot of people thinking hard about how to apply the
stimulus in ways that grow green jobs.

But green jobs are not, in and of themselves, good jobs. They can be
good jobs - jobs that provide workers with decent wages, economic security and a
shot at the American Dream - but they can just as easily go the other way. It
all depends on the choices we make.

Today, in conjunction with Good Jobs First and the Sierra Club, we’re rolling out a new report that demonstrates in detail just how true that is.

“High Road or Low Road? Job Quality in the New Green Economy” (PDF) looks at a range of existing green jobs in sectors across the economy, including manufacturing, construction, and waste management, and finds that while policy choices have made some of these green jobs good jobs, the connection is by no means automatic:

• Low pay is not uncommon in the workplaces we profile: the lowest wage we found was $8.25 an hour at a recycling processing plant, but we also discovered jobs in manufacturing facilities serving the renewable energy sector paying as little as $11 an hour.
• Wage rates at many wind and solar manufacturing facilities are below the national average for workers employed in the manufacture of durable goods. In some locations, average pay rates fall short of income levels needed to support a single adult with one child.
• Some U.S. wind and solar manufacturers have already begun to offshore production of components destined for U.S. markets to low-wage havens such as China and Mexico. Examples of offshoring include the manufacture of blades for wind turbines, defying the common assumption that such blades are too large to ship overseas.
• Very few workers at wind and solar manufacturing workplaces identified in the course of our research are covered by collective bargaining agreements. In at least two instances, this appears to be a direct result of aggressive anti-union campaigns run by employers with the help of union-busting consultants. On the construction side, we found that a leading contractor engaged in energy efficiency work has a similarly hostile approach to unions.
• We could not find specific wages for nonunion construction workers employed in green building, but publicly available data on overall construction wages suggest that they are far lower than those of the union members profiled in the report. Analysis provided by the Economic Policy Institute indicates that among nonunion laborers, carpenters, painters, and roofers, a majority make less than $12.50 an hour and a third make less than the federal poverty wage for a family of four ($10.19 an hour).

This is not to say that green jobs cannot be good jobs — merely that they do not become good jobs simply because they are green. Decisions must be made and policies put in place if we wish for this sector to become the vehicle that enables a new generation of workers to achieve the American Dream. (In its conclusion, the report identifies a range of policy options available to make this a reality.)

Given the economic and environmental challenges facing America and the world, the need for a green economy becomes clearer every day. In the push to get there, though, we must make sure that the workers whose labor powers that green economy aren’t left behind by it while its benefits flow to a few plutocrats at the top. If we do not, we risk repeating the mistakes that led us into the current economic crisis in the first place.

Does The Ledbetter Law Benefit Workers, Or Lawyers?

Does The Ledbetter Law Benefit Workers, Or Lawyers? By Stuart Taylor Jr.
Democrats and the media have distorted the facts underlying the new equal-pay law.
National Journal, Saturday, Jan. 31, 2009

This has been a good week, and may be a good year, for lawyers, civil-rights groups and others who think that America needs many more lawsuits to combat what they portray as pervasive job discrimination against women, minorities, the elderly, and the disabled.

Things are not going so well for those of us who fear that the Lilly Ledbetter Fair Pay Act, which President Obama co-sponsored as a senator and signed on Thursday, and other job discrimination bills in the congressional pipeline may be bad for most workers and may benefit mainly lawyers.

These measures seem likely to make it harder than ever for employers to defend themselves against bogus (as well as valid) discrimination claims, effectively adding to the cost of each new hire.

This would be justified if job discrimination were indeed pervasive. But the evidence suggests otherwise. Study after study has, for example, cast grave doubt on what appears to be the myth that sex discrimination in the workplace remains rampant more than 40 years after Congress adopted one law broadly banning job discrimination and another requiring equal pay for women and men doing equal work.

Congressional Democrats, liberal groups, and the media have thoroughly distorted the facts underlying the Ledbetter law to advance their agenda of opening the door wide to all manner of job-discrimination lawsuits.

The new law will virtually wipe out the 300-day time limit (180 days in Alabama and some other states) during which employees can file claims of discrimination under Title VII of the 1964 Civil Rights Act. Disgruntled employees will now be free to wait many years before hauling employers into court for supposedly discriminatory raises, promotions, or any other actions affecting pay.

The longer the wait, the more difficult it will be for the employer to contest an employee's one-sided and perhaps false account of the case, because key witnesses may have retired or died and records such as performance evaluations may have been discarded.

Indeed, some of the Ledbetter law's vague language could be construed as opening the doors for people to sue a company even years after retiring, on the theory that each new pension check is too small because of some claim of discrimination by some long-since-departed (or dead) supervisor.

This law represents an overreaction to a May 2007 Supreme Court decision, Ledbetter v. Goodyear Tire & Rubber Co., that provoked an explosion of ill-informed media outrage and propelled the losing party, retired Goodyear employee Lilly Ledbetter of Alabama, to a speaking role at last year's Democratic National Convention.

The 5-4 decision reasonably (if debatably) held that the 180-day time limit for Ledbetter to file her Title VII claim had started running with the most recent act of intentional discrimination that affected her pay in the ensuing years. Ledbetter had argued -- and the new law now provides -- that the 180-day clock should restart with each new paycheck.

For this, the conservative majority was widely reviled as having denied any remedy to Ledbetter, because employees often don't know what their co-workers are paid and thus might not learn that they are victims until more than 180 (or 300) days after the supposed discrimination occurred.

But some critical facts -- ignored by the media and Congress -- belie their portrayal of the case, as detailed in my June 9, 2007, column.

First, Ledbetter waited more than five years after learning that she was paid substantially less than most male co-workers to file her Title VII claim for back pay, compensatory, and punitive damages. Second, by that time a key supervisor -- whom she belatedly accused of holding down her pay raises after she rejected his sexual advances -- had died. Third, Ledbetter chose not to pursue a claim under the Equal Pay Act of 1963, which has a much longer time limit (three years) than Title VII but does not (yet) provide for big-bucks damage awards.

Fourth, her years of poor performance evaluations, plus repeated layoffs that affected her eligibility for raises, convinced a federal magistrate judge (although not the jury) that her relatively low pay did not prove sex discrimination. Maybe Ledbetter was a victim of discrimination, as the jury found. Maybe not. The evidence is too stale to allow for a confident conclusion -- which is one reason the justices ruled against her.

That said, it would have been reasonable for Congress to amend Title VII by specifying (as some lower courts have held) that the clock does not start running until the employee is or should be aware that she is earning less than co-workers.

Instead, Congress chose to shift the balance dramatically against employers by effectively eliminating time limits for filing all manner of discrimination claims that have some impact on pay.

Another bill that may reach President Obama is the House-passed Paycheck Fairness Act. Its confusingly worded amendments to the Equal Pay Act of 1963 seem designed -- or at least likely -- to force pay raises for women who have never been victims of anything that most people would call discrimination.

The bill would, for example, expose an employer to liability for paying a woman less than a man in a similar job unless the employer can convince a jury that the differential is "job related" and "consistent with business necessity" -- and also that no "alternative employment practice exists that would serve the same business purpose."

What's that parade of nebulosities supposed to mean? I think it would invite judges and juries to go beyond providing remedies for real discrimination and to play Robin Hood by second-guessing justifiable pay disparities. It would force some employers who are entirely innocent of sex discrimination to settle unwarranted lawsuits.

An employer that has long paid higher salaries to employees with more experience or better scores on written tests of their job-related skills might be hit for a big damage award for failing instead to provide special training for inexperienced women or to use a different test.

A very big damage award, perhaps: The Paycheck Fairness Act would allow unlimited awards of both compensatory and (in cases of "reckless indifference") punitive damages. Other proposals likely to emerge during this Congress would eliminate the current caps on damages in Title VII lawsuits as well.

Worse, the Paycheck Fairness Act would allow lawyers to include masses of women who have little or no interest in suing in class-action lawsuits, excepting only those who go to the trouble of "opting out." This is a formula for lawyer-generated lawsuits to extort millions of dollars from companies without proving that they ever intentionally discriminated against anyone.

One of the myths underlying this bill is that, as then-Sen. Hillary Rodham Clinton of New York said on January 8: "It is disgraceful that... women in this country still earn only 78 cents on the dollar" earned by men.

No, it's not disgraceful. Nor is it true that "in many instances, the pay disparities can only be due to continued intentional discrimination or the lingering effects of past discrimination," as stated in the findings attached to the Paycheck Fairness Act.

Labor Department data and academic studies show that much of the male-female pay differential is explained by such factors as disproportionate child-rearing and caregiving responsibilities.These cut into women's working hours and motivate many to sacrifice higher pay for shorter hours and the flexibility to take career breaks.

The data also demonstrate that women who work 40 hours a week make 88 percent as much as men who work 40 hours. Economics professor June O'Neill of Baruch College reported in a 2003 article that the female-to-male wage ratio rises to 95 percent when other data -- on child-related factors, demographics, academic majors, work experience, and occupational characteristics -- are also taken into account. The "gender gap can be explained to a large extent by nondiscriminatory factors," O'Neill concluded.

"Men and women generally have equal pay for equal work now -- if they have the same jobs, responsibilities, and skills," wrote Diana Furchtgott-Roth of the conservative free-market Hudson Institute. She added, in a January 21 commentary published by Reuters, that the 5.9 percent unemployment rate for adult women is lower than the 7.2 percent for adult men.

This is not to suggest that sex discrimination is no longer a serious problem. I worry that my two daughters may run into the barriers that still lurk in some unknown percentage of workplaces. But I worry more that they and their peers will have a harder and harder time finding jobs in the first place if the government burdens employers with lawsuits that make it more and more expensive to bring in new hires.

Legislating the Lilly Ledbetter lie

Legislating the Lilly Ledbetter lie, by Paul Mirengoff
Powerline Blog, January 28, 2009 at 1:31 PM

President Obama is set to sign into law, as the first legislation of his tenure, the so-called Lilly Ledbetter Act. It changes the rules for bringing lawsuits for alleged pay discrimination, enabling plaintiffs to bring stale claims, as Ledbetter herself attempted to do.

It is fitting that this law will be the first legislative product of the Obama presidency, for it is based on a lie. I demonstrated this last year in a post called "Lilly Ledbetter, Living a Lie."

The Lilly Ledbetter lie is today peddled in this Washington Post story, which suggests that she had no idea she was the victim of pay discrimination until she supposedly received an anonymous note tippling her off. So is the White House. (Hat tip, Openmarket.org.)

In honor of the occasion, I have re-posted my piece on Lilly's lie:

Lilly Ledbetter, the unsuccessful plaintiff in an equal pay case that went to the Supreme Court, has become ubiquitous this political season. She spoke at the Democratic National Convention, has testified in congressional hearings, and appears in an ad for Barack Obama. Congress is considering legislation that bears her name. The Washington Post, in a piece by Matthew Mosk, reverentially described her as "the Alabama woman whose fight for equal pay led her to the United States Supreme Court and inspired. . .fair pay legislation."

Not since the equally alliterative and industrial-sounding Rosie the Riveter, has a working woman become such a folk hero. But like Rosie, the Lilly Ledbetter being presented for public consumption is largely mythical.

The real Lilly Ledbetter worked for Goodyear Tire & Rubber Company from 1979 until she retired in 1998. After she retired, she sued Goodyear under Title VII of the Civil Rights of 1964 for alleged pay discrimination.

Ledbetter's pay discrimination claim went to a jury which found in her favor. However, the court of appeals reversed this verdict on the grounds that she did not file a charge of discrimination with the EEOC within the required statute of limitations period.

In her appeal to the U.S. Supreme Court, Ledbetter raised the following issue: "Whether and under what circumstances a plaintiff may bring an action under Title VII. . .alleging illegal pay discrimination when the disparate pay is received during the statutory limitations period, but is the result of intentionally discriminatory pay decisions that occurred outside the limitations period."

Ledbetter framed the issue this way because she did not claim that the relevant Goodyear decisionmakers acted with discriminatory intent during the limitations period. Instead, she asserted that the paychecks she received during this period were unlawful because they would have been larger if she had been treated in a nondiscriminatory manner prior to the limitations period.

In other words, the alleged intentional discrimination had occurred years earlier, outside of the limitations period. But Ledbetter felt its ongoing consequences every time she received a paycheck, until the end of her career, because her pay never caught up to where she believes it would have been absent the early discrimination. An employee's pay at any given point in time is typically a function of years of pay decisions.

The Supreme Court agreed with the court of appeals that Ledbetter's challenge to pay decisions that pre-dated the limitations period was time-barred. In doing so, the Court correctly applied three decades of its own precedent in cases where Title VII plaintiffs have attempted to rely on the current effects of past discrimination to defeat a statute of limitations defense.

The Court also emphasized the common sense proposition that stands behind these decisions: in discrimination cases "the employer's intent is almost always disputed and evidence relating to intent may fade quickly with time." Thus, an employee who waits until years after the underlyng alleged intentional act of discrimination to sue, as Ledbetter did, undermines the ability of the justice system to conduct a fair trial. For example, by the time Ledbetter brought her case to trial, the supervisor whose decisions formed the main basis for her pay discrimination claim was dead.

There is, of course, nothing novel in the Supreme Court's reasoning. Statute of limitations period exist precisely to prevent the injustice inherent in situations where a plaintiff "sleeps" on his or her rights for years.

Ledbetter and her Democratic fan club argue, however, that the result in her case permits hidden discrimination. They would have the public believe that the Ledbetter decision leaves plaintiffs who don't discover concealed discrimination for many years unable to overcome the statute of limitations defense, and thus unable to remedy wrongdoing.

This is nonsense. For decades the Supreme Court has recognized that the limitations period in a Title VII case can be extended or tolled in such circumstances. Tolling is available where, among other situations, the plaintiff has no reason to suspect discrimination at the time of the disputed event.

But Ledbetter did not argue that the limitations period should be tolled in her case, and for good reason. Ledbetter testified that she knew by 1992 that her pay was out of line with her peers. In 1995, she spoke to her supervisor about the problem, telling him that "I knew definitely that they were all making a thousand at least more per month than I was and that I would like to get in line." Yet Ledbetter waited until 1998 to file her EEOC complaint.

This delay is particularly difficult to understand given the fact that, in 1982, she had filed a sexual harassment complaint with the EEOC. That dispute was settled without litigation shortly thereafter. Had Ledbetter followed the same course with her pay claim, she would have had her day in court, and Goodyear would have had a fair chance to defend itself. That this did not occur is Ledbetter's fault.

Prevented by the facts from arguing in a real court that she didn't have enough knowledge about her pay situation to bring a timely EEOC charge, Ledbetter (and those who seek political advantage through her) now raise this false claim in the court of public opinion. For example, Ledbetter claims that "the only way that I really knew [about the pay discrimination] was that someone left an anonymous note in my mailbox showing my pay and the pay for the three males who were doing the same job, just on different shifts." According to Ledbetter, "when I saw that note, it just floored me. I was so shocked at the amount of difference in our pay for doing the same exact job. And I went immediately to EEOC."

This claim, of course, cannot be reconciled with her sworn testimony that three years before allegedly receiving the "anonymous note," she told her supervisor that she definitely knew that she was making thousands less than her male counterparts for the same work.

Lilly Ledbetter is living a lie, one that Barack Obama hopes will help propel him into the White House.

George Miller on Secret Ballot In Union Recognition Elections: 2001

Miller Time in Mexico… by Ivan Osorio
OpenMarket, CEI blog, September 11, 2008

…looks very different than it does in the United States. And by Miller, I mean Rep. George Miller (D-Calif.).

In 2001, Rep. Miller and several of his colleagues wrote to a labor adjudication body in the Mexican state of Puebla urging that body to uphod the secret ballot as “absolutely necessary to ensure that workers are not intimidated into voting for a union they might not otherwise choose.”

Yesterday, the Mexican Supreme Court agreed, ruling that workers’ secret ballots in union organizing elections must be protected, reports Laborpains.org.

What does this have to do with the U.S.? Legally, nothing, but politically, plenty. The same protection that Miller so strongly defended for Mexican workers is the same one he is now trying to take away from American ones, through his sponsorship of the mandatory card-check organizing bill known as the Employee Free Choice Act.

Miller’s double-talk notwithstanding, he does deserve credit for one thing: He was right once. Now if only he could apply such wisdom inside his own country’s borders.

For more on card check, see here and here.

Card Check

More on Hoyer & Card Check, posted Jonah Goldberg
The Corner/NRO, Monday, January 05, 2009 @02:57 PM

From Patrick Semmens at National Right to Work Legal Defense Foundation:

Jonah-

Just to add to what others have written regarding Hoyer's comments on FNS. While it's often a fine line between gross misrepresentation and out and out lie, I'd say at least one aspect of Hoyer's comments fall into the second category:

Hoyer says "The employees currently have and will have the opportunity to opt for a secret ballot. They don't have to sign the card. They can say, 'Look, we'll have an election, and we may vote.' But they have that choice right now, and they will continue to have that choice."

But the fact is the so-called "authorization cards" that unions use to run a card check doesn't give employees the choice to opt for a secret ballot election. In fact, the cards often seem to intentionally bait-and-switch employees into thinking that they are supporting an election, when really they have done just the opposite by signing a card that will be later be counted as a "vote" for unionization under card check.

We have an example of a typical union card here. You'll see that on the top of the card in big bold print it says it is a request for a representation election. However, in fine print at the bottom it says that signing the card authorizes the union "also to represent me..." (meaning that it would count in a card check).

In short workers have no opportunity to request only a secret ballot vote... it's card check or nothing because the union controls the cards and what they are used for. Meanwhile as others have pointed out, union organizers technically could request a vote, but they never would because it is always easier to pressure or mislead 50% +1 workers into signing cards, than it is to get them to vote in a union within the privacy of the secret ballot.

Hope that helps.

Also, people need to be reminded that in most states (the 28 without Right to Work laws) once a union gets in (through card check or secret ballot) every worker must (1) accept the union's representation even if they don't want it and (2) pay dues to the union or be fired. So while obviously the secret ballot election is far less coercive than the card check scheme, let's not forget that both are still part of a fundamentally unjust system.

Regards.

—Patrick T. Semmens
Legal Information Director
National Right to Work Legal Defense Foundation

TNYT Editorial On Mr Obama's Labor Agenda

The Labor Agenda
TNYT Editorial, December 29, 2008

There is no doubt that President-elect Barack Obama has chosen a labor secretary who could be a transformative force in a long-neglected arena. The question is whether he will let her.

Hilda Solis, a United States representative from Southern California, is the daughter of immigrant parents with union jobs. She has been an unfailing advocate of workers’ rights during eight years in Congress and before that, in California politics.

Ms. Solis has been a leader on traditional workplace issues, like a higher minimum wage and an enhanced right to form unions. She also has helped to expand the labor agenda by sponsoring legislation to create jobs in green technology, and in her support for community health workers and immigration reform.

Her record in Congress dovetails with the mission of the Labor Department, to protect and further the rights and opportunities of working people. It also dovetails with many of the promises Mr. Obama made during the campaign, both in its specifics and in its focus on the needs of America’s working families.

The main issue is whether the Obama administration will assert a forceful labor agenda in the face of certain protests from business that now — during a recession — is not the time to move forward.

The first and biggest test of Mr. Obama’s commitment to labor, and to Ms. Solis, will be his decision on whether or not to push the Employee Free Choice Act in 2009. Corporate America is determined to derail the bill, which would make it easier than it has been for workers to form unions by requiring that employers recognize a union if a majority of employees at a workplace sign cards indicating they wish to organize.

Ms. Solis voted for the bill when it passed the House in 2007. Senate Republicans prevented the bill from coming to a vote that same year. Mr. Obama voted in favor of bringing the bill to the Senate floor and supported it during the campaign.

The measure is vital legislation and should not be postponed. Even modest increases in the share of the unionized labor force push wages upward, because nonunion workplaces must keep up with unionized ones that collectively bargain for increases. By giving employees a bigger say in compensation issues, unions also help to establish corporate norms, the absence of which has contributed to unjustifiable disparities between executive pay and rank-and-file pay.

The argument against unions — that they unduly burden employers with unreasonable demands — is one that corporate America makes in good times and bad, so the recession by itself is not an excuse to avoid pushing the bill next year. The real issue is whether enhanced unionizing would worsen the recession, and there is no evidence that it would.

There is a strong argument that the slack labor market of a recession actually makes unions all the more important. Without a united front, workers will have even less bargaining power in the recession than they had during the growth years of this decade, when they largely failed to get raises even as productivity and profits soared. If pay continues to lag, it will only prolong the downturn by inhibiting spending.

Another question clouding the labor agenda is whether Mr. Obama will give equal weight to worker concerns — from reforming health care to raising the minimum wage — while the financial crisis is still playing out. Most members of his economic team are veterans of the Clinton administration who tilt toward Wall Street. In the Clinton era, financial issues routinely trumped labor concerns. If Mr. Obama’s campaign promises are to be kept, that mindset cannot prevail again. Mr. Obama’s creation of a task force on middle-class issues, to be led by Vice President-elect Joseph Biden and including Ms. Solis and other high-ranking officials, is an encouraging sign that labor issues will not be given short shrift.

There are many nonlegislative issues on the agenda for Ms. Solis. Safety standards must be updated: in the last eight years, the Labor Department has issued only one new safety rule of its own accord; it issued a few others only after being compelled by Congress or the courts. Overtime rules that were weakened in 2004 need to be restored. To enforce labor standards, the Labor Department will need more staff and more money, both of which have been cut deeply by President Bush.

Only the president can give the new labor secretary the clout she will need to do well at a job that has been done so badly for so long, at such great cost to the quality of Americans’ lives.