Donald J. Devine

Challenge posed by labor rules
February 8, 2001

After strong support from labor union leaders and a unanimous Senate confirmation, the White House will reportedly now require Labor Secretary Elaine Chao to re-instate the Beck Order that forbids use of union dues for political purposes. The union bosses will not be pleased; but that is just the beginning of her troubles.

Labor led in Bill Clinton's last-minute largess of special interest rule-making that George W. Bush promised to stall: increasing employer record-keeping for occupational injuries (again), tightening rules for steel erection (it's dangerous), narrowing the "companionship" exclusion from "domestic service" (discovered now for the first time in a 1974 law), denying employers legal confidentiality in labor disputes (but not unions), and requiring states and federal contractors to "accommodate" non-English speakers (without saying how). A few weeks before, it was expensive and unproven ergonomics burdens on employers, with no science to back them up.

The Labor Department is a rule-making machine for the unions. No one else understands the labor laws, but anyone can fall afoul of them. It almost defies belief that one could take an abused spouse into the security of one's home, feed her, offer her shelter, give her small sums of money, drive her to English classes and job interviews, teach her to use the Metro and help her obtain a paid position with a neighbor — and be criticized for violating labor laws. This is helping one's neighbor at its best, not something to be penalized. That the battered woman was an illegal alien, only makes the compassion greater. The fact the supposed victim of the labor practice said "I was not an employee," and even considered the home a "sanctuary," made no difference. This, indeed, is what happened to Linda Chavez and cost her the top Labor job.

As the great Nobel philosopher F.A. Hayek made clear, the rule of law is the most fundamental requirement of a decent society; and the first requirement of good law is that it is understood and applied equally to all. The common law underlying the Constitution and state law was based upon principles everyone knew. Yet, as common law was replaced with politically determined statute law, often written by the special interests themselves, non-experts could not grasp what they were supposed to do to comply. As the government grew and became more bureaucratized, laws multiplied and became so complex even the experts were confused.

If no one understands the law and there is so much of it that it cannot be avoided, the government can "get" anyone it wants, any time it wants. This is the root of the "gotcha" politics that ran over Mrs. Chavez. Labor law begins with labor unions that do not want competition from non-members. They lobby Congress and the bureaucracy, which pass rules that create red-tape barriers to make it difficult for the unconnected (the connected are in labor unions, of course) to get jobs. The weaker the segment in the population, the more difficult for them. Cards and documents are needed, taxes must be withheld, minimum amounts of wages must be paid, acts of compassion must be outlawed, rules and burdens multiplied. The idea is to use the labor laws to keep the uninitiated from getting work. This is what liberals call "helping the working man."

Take minimum wage laws. To oppose them is the ultimate sin to liberals. Yet, as economist Walter Williams has documented in his authoritative "South Africa's War Against Capitalism," the apartheid regime there specifically devised minimum wage laws to suppress black employment. Teddy Kennedy once excepted Puerto Rico from a minimum wage increase because even he realized it would put too many people there out of work.

Look at liberals who have run afoul of these labor laws. Zoe Baird, chief legal counsel to one of the largest firms in America; lawyer Ron Brown, former commerce secretary; former Denver mayor and former Transportation Secretary Frederico Pena; former CIA chief Bobby Ray Inman; and a Democratic U.S. senator, Dianne Feinstein. But it is not just the well-educated and the politicians. Kimba Wood was a U.S. district judge when she was forced to remove her name from nomination because of a baby-sitter problem. Let this sink in: Supreme Court Justice Stephen G. Breyer failed to pay Social Security taxes for an 81-year-old woman who worked for him for 13 years. He explained that he did not know he had to pay taxes for her.

If a Supreme Court justice cannot know the law, obviously no one can. There is no better place to begin the recovery of the rule of law than at Labor, and Mrs. Chao will need all the help she can get in cleaning that stable.