The subject of the Center for Labor and Employment Law’s 63rd annual Conference on Labor on June 3 and 4, “Resolving Labor and Employment Disputes: A Practical Guide,” brought a host of practitioners to the NYU School of Law to give a broad picture of ways to help bridge the gap between employers and employees.

Samuel Estreicher, Dwight D. Opperman Professor of Law and executive director of the Center for Labor and Employment Law, organized the conference. On the evening of June 2, he welcomed guests to a reception honoring the 75th anniversary of the National Labor Relations Act. Wilma Liebman, chair of the National Labor Relations Board (NLRB), gave opening remarks.

Liebman also kicked off the conference’s first full day with a keynote address the next morning, followed by presentations on making a case before the NLRB’s general counsel, being a proactive in-house counsel, and litigating trade secrets cases. The second day of the conference focused on topics including dealing with the Equal Employment Opportunity Commission, contesting class certification, dealing with an audit by the Office of Federal Contract Compliance Programs, and handling ethical issues as in-house counsel.

Dean Richard Revesz introduced luncheon speaker M. Patricia Smith ’77, solicitor of the U.S. Department of Labor. Recalling that he had last introduced Smith at the Law School just four months previously, when she accepted Law Women’s Alumna of the Year Award the night before her nomination was confirmed by the Senate, Revesz enumerated Smith’s significant career accomplishments on behalf of low-income workers.

“Solicitor Smith’s focus on education and aggressive enforcement of laws has opened the eyes of countless New Yorkers who may not have otherwise believed the injustices occurring in their very own neighborhood,” Revesz said. “I am confident that she will make a similarly profound difference at the federal level.”

In her speech, Smith discussed the past decade of the Department of Labor, a period during which, she said, enforcement of regulations took a back seat to compliance assistance: “If resources really are finite—and I can assure you they are—then you can’t have more compliance assistance...without having less enforcement.... The Department relied on ‘trickle-down’ enforcement—a model that encouraged a ‘catch-me-if-you-can’ approach to corporate compliance.... It may sound good in theory, but in practice it just doesn’t set the right incentives.”

The Labor Department’s primary concern, Smith said, should be workers, not the companies for which they work: “Low wages, oppressive hours, and unsafe workplaces must not be the price that our sons and daughters pay to maximize corporate profits.” Referring to the ongoing BP oil spill in the Gulf of Mexico, Smith pointed out that “most stories focus on the environmental catastrophe in the Gulf—and rightly so. We shouldn’t forget, though, that 11 workers are dead and the livelihoods of countless Americans are in jeopardy as a result of decisions that company made.”

Some companies, she said, “simply don’t have a culture of compliance” and prefer to rely on luck to avoid getting caught, or else decide through cost-benefit analysis that not complying is preferable to the effort and cost of following the law. Such calculations lead to disasters such as the Upper Big Branch Mine accident in West Virginia, she added.

In an effort to change corporate attitudes and behavior about compliance and encourage them to make proactive fixes rather than wait to get caught, Smith said, the Labor Department is asking companies to create, implement, and evaluate a plan to identify and address risks to employees; be increasingly open and transparent in providing information to workers; and look for systemic industry-wide solutions when a problem identified in one workplace likely exists elsewhere. Heightened criminal enforcement and listening to the workers themselves are also Labor Department priorities.

“The Department of Labor is once again open for business,” Smith said. “We want to hear from you, and we want to hear from the workers you represent. After all, how can we foster the welfare of wage earners, improve their working conditions, and advance their opportunities for profitable employment if they aren’t at the table?”

The conference was co-sponsored by St. John’s University School of Law and the Cornell University School of Industrial and Labor Relations.

Posted on June 11, 2010