Hilda Solis Addresses Wal-Mart V. Dukes Ruling

Secretary of Labor Hilda L. Solis addressed the 22nd convention of the National Employment Lawyers Association (NELA) on July 1, 2011, and a highlight, if not the focus of her remarks, was on the Supreme Court’s recent ruling in Wal-Mart v. Dukes. Her major point is that class certification under Federal Rule 23 does not apply to the OFCCP. Or to use her words:

Here's an important point: The Supreme Court's Walmart ruling was limited to class actions under Rule 23 of the Federal Rules of Civil Procedure. But my department's efforts to eliminate workplace discrimination in America don't depend on this rule. …. We enforce an executive order that says federal contractors can't discriminate. We have oversight over any company doing at least $10,000 of government business a year. This means that Pat's office can obtain class-wide relief for victims of pay discrimination without having to file a class action lawsuit. … The Walmart decision won't affect our ability to address pay disparities on a broad scale — even if our lawyers have to tweak some of their legal arguments based on the reasoning used in that case.

Solis then emphasized the DOL’s commitment to seek remedies for pay discrimination against women and minorities and promised to increase the percentage of pay investigation from 14% in the preceding year to 20 to 40% going forward. She also noted that the Obama administration remains committed to the Paycheck Fairness Act, which failed by only two votes in Congress last year.

Among other comments, Solis promised to:

• • close loopholes that give employers unjustified defenses to discrimination

• • strengthen the ban on retaliation against those who complain about unequal pay

• • rescind the Bush-era guidelines that prevent effective enforcement of equal pay laws.

• • create more flexible workplaces so women don't have to choose between motherhood and a fulfilling career

• enforce a new provision in the Affordable Care Act that guarantees break time for nursing mothers.

Solis also promised to focus Wage & Hour cases on “enterprise-wide” enforcement, meaning that if violations are found in one workplace, it will be assumed that the practice is occurring at other company locations. She gave two examples of recent violations in Ohio (a company with 520 locations) and a biometric equipment company in California that markets to police and government agencies. Solis credited recent successes to the hiring of 350 new wage and hour investigators. She then warned that “anyone who views back wages and fines for pay violations as the cost of doing business is going to have big problems with my Department.”

She closed by telling the audience “I'm proud to be here today. Good morning, God bless, and have a wonderful convention.” I’m sure a good time was had by all. For the full text of the address, go to http://affirmact.blogspot.com/2011/07/labor-secretary-speaks-about-wal-mart.html