18

DEPARTMENT OF LABOR
AND RELATED AGENCIES
Jonathan Berry

MISSION STATEMENT
At the heart of The Conservative Promise is the resolve to reclaim the role of
each American worker as the protagonist in his or her own life and to restore the
family as the centerpiece of American life. The role that labor policy plays in that
promise is twofold: Give workers the support they need for rewarding, well-paying,
and self-driven careers, and restore the family-supporting job as the centerpiece of
the American economy. The Judeo-Christian tradition, stretching back to Genesis,
has always recognized fruitful work as integral to human dignity, as service to God,
neighbor, and family. And Americans have long been known for their work ethic.
While it is primarily the culture’s responsibility to affirm the dignity of work, our
federal labor and employment agencies have an important role to play by protect-
ing workers, setting boundaries for the healthy functioning of labor markets, and
ultimately encouraging wages and conditions for jobs that can support a family.

OVERVIEW
The labor agencies covered in this chapter include the Department of Labor
(DOL), the Equal Employment Opportunity Commission (EEOC), the National
Labor Relations Board (NLRB), the National Mediation Board (NMB), the Federal
Mediation and Conciliation Service (FMCS), and the Pension Benefit Guaranty
Corporation (PBGC). Congress has provided these agencies with the authority to
enforce a wide range of federal statutes regulating workplace conduct, workforce
development, employee benefits, labor organization and bargaining, and interna-
tional labor conditions.

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In the sweep of American history, these authorities are relatively new. They largely
come from Congress’s attempts in the middle of the 20th century to resolve major
political questions brought about by labor conflict, the civil rights movement, and the
emergence of the modern workplace. The 21st century has brought about new chal-
lenges, ranging from collapsing manufacturing sector employment and a decrease in
family-supporting jobs, to the massive expansion of an increasingly radical human-re-
sources bureaucracy. In many cases, these challenges are as significant as the 20th
century labor crises and workplace changes that the agencies were developed to manage.
But the agencies have failed to respond to these challenges. Despite significant
progress by the Trump Administration, a massive administrative state now hangs
over productive industry and labor organization, acting as a damper on social and
economic life. And under the Biden Administration, that administrative state has
imposed the most assertive left-wing social-engineering agenda in the agencies’
history and ratcheted up regulatory costs on small businesses and other productive
industry. The agencies’ authorities have been abused by the Left to favor human
resources bureaucracies, climate-change activists, and union bosses—all against
the interest of American workers.

NEEDED REFORMS
Reverse the DEI Revolution in Labor Policy. Under the Obama and Biden
Administrations, labor policy was yet another target of the Diversity, Equity, and
Inclusion (DEI) revolution. Under this managerialist left-wing race and gender ideol-
ogy, every aspect of labor policy became a vehicle with which to advance race, sex, and
other classifications and discriminate against conservative and religious viewpoints
on these subjects and others, including pro-life views. The next Administration
should eliminate every one of these wrongful and burdensome ideological projects.
Eliminate Racial Classifications and Critical Race Theory Trainings. The
Biden Administration has pushed “racial equity” in every area of our national life,
including in employment, and has condoned the use of racial classifications and
racial preferences under the guise of DEI and critical race theory, which categorizes
individuals as oppressors and victims based on race. Nondiscrimination and equal-
ity are the law; DEI is not. Title VII flatly prohibits discrimination in employment
on the basis of race, color, and national origin. The President should:

l Issue an executive order banning, and Congress should pass a law

prohibiting the federal government from using taxpayer dollars to
fund, all critical race theory training (CRT).

l Direct DOJ and EEOC to enforce Title VII. The President should
direct the Department of Justice and Equal Employment Opportunity
Commission to enforce Title VII to prohibit racial classifications and quotas,

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including human-resources classifications and DEI trainings that promote

critical race theory.

l Eliminate EEO-1 data collection. The Equal Employment Opportunity

Commission collects EEO-1 data on employment statistics based on race/
ethnicity, which data can then be used to support a charge of discrimination
under a disparate impact theory. This could lead to racial quotas to remedy
alleged race discrimination. (The Office of Federal Contract Compliance
Programs (OFCCP) also has a right to the data EEOC collects.) Crudely
categorizing employees by race or ethnicity fails to recognize the diversity
of the American workforce and forces individuals into categories that do not
fully reflect their racial and ethnic heritage.

l Amend Title VII. The next Administration should work with Congress
to amend Title VII to prohibit the Equal Employment Opportunity
Commission from collecting EEO-1 data and any other racial classifications
in employment for both private and public workplaces.

l Eliminate disparate impact liability. With interracial marriages in

America increasing, many Americans do not fit neatly into crude racial
categories.1 Under disparate impact theory, moreover, discriminatory
motive or intent is irrelevant; the outcome is what matters. But all
workplaces have disparities.

Congress should:

l Eliminate disparate impact as a valid theory of discrimination for

race and other bases under Title VII and other laws. Disparities do not
(and should not legally) imply discrimination per se.

The President should:

l Sign an executive order explicitly forbidding OFCCP from using

disparate impact in its analysis.

l Eliminate OFCCP. The Office of Federal Contract Compliance Programs

(OFCCP) exists to enforce Executive Order (EO) 11246.2 That order was
originally signed in 1965 to require federal contractors (and subcontractors)
to commit to nondiscrimination. It gave enforcement authority to
the Department of Labor, up to and including debarment from federal
contracting. The Equal Employment Opportunity Commission has since

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grown, often making OFCCP’s authority redundant and imposing a second

regulatory agency under whose rules businesses must operate. In addition,
under EO 11246, the President and DOL can force a huge swath of American
employers to comply with rules and regulations based on novel anti-
discrimination theories (such as sexual orientation and gender identity
theories) that Congress had never imposed by statute.

l Rescind EO 11246. The President should eliminate OFCCP by simply

rescinding EO 11246. Federal contractors would still be bound by statutory
nondiscrimination law but would no longer work under overlapping
regimes. (Contractors’ residual obligations under Section 503 of the
Rehabilitation Act and Vietnam Era Veterans’ Readjustment Assistance Act
(VEVRAA) could be enforced by EEOC or DOL.) Contractors also would be
less subject to the changing political whims of a President that might impose
significant new costs or burdens on the contractors.

Sex Discrimination. The Biden Administration, LGBT advocates, and some

federal courts have attempted to expand the scope and definition of sex discrimi-
nation, based in part on the Supreme Court’s decision in Bostock v. Clayton County.
Bostock held that “an employer who fires someone simply for being homosexual
or transgender” violates Title VII’s prohibition against sex discrimination. The
Court explicitly limited its holding to the hiring/firing context in Title VII and
did not purport to address other Title VII issues, such as bathrooms, locker rooms,
and dress codes, or other laws prohibiting sex discrimination. Notably, the Court
focused on the status of the employees and used the term “transgender status”
rather than the broader and amorphous term “gender identity.”

l Restrict the application of Bostock. The new Administration should

restrict Bostock’s application of sex discrimination protections to sexual
orientation and transgender status in the context of hiring and firing.

l Withdraw unlawful “notices” and “guidances.” The President should

direct agencies to withdraw unlawful “notices” and “guidances” purporting
to apply Bostock’s reasoning broadly outside hiring and firing.

l Rescind regulations prohibiting discrimination on the basis

of sexual orientation, gender identity, transgender status, and
sex characteristics. The President should direct agencies to rescind
regulations interpreting sex discrimination provisions as prohibiting
discrimination on the basis of sexual orientation, gender identity,
transgender status, sex characteristics, etc.

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l Direct agencies to refocus enforcement of sex discrimination laws.

The President should direct agencies to focus their enforcement of sex
discrimination laws on the biological binary meaning of “sex.”

PRO-LIFE MEASURES
l Promote pro-life workplace accommodations for mothers. Federal
law should protect life and promote pro-family policies. Current law, the
Pregnancy Discrimination Act,3 provides nondiscrimination protections
in the workplace for pregnancy, childbirth, or related medical conditions.
The Pregnant Workers Fairness Act (PWFA)4 requires employers to make
reasonable accommodations for women “to the known limitations related
to the pregnancy, childbirth, or related medical conditions,” unless “the
accommodation would impose an undue hardship on the operation of
the [employer’s] business.” The Americans with Disabilities Act (ADA)
also provides nondiscrimination and accommodation protections in the
workplace for certain pregnancy-related disability.5 None of these laws
requires an employer provide health insurance benefits for elective abortion.

l Pass a law requiring equal (or greater) benefits for pro-life support
for mothers and clarifying abortion exclusions. Congress should pass a
law requiring that to the extent an employer provides employee benefits for
abortion, it must provide equal or greater benefits for pregnancy, childbirth,
maternity, and adoption. That law should also clarify that no employer is
required to provide any accommodations or benefits for abortion.

l Keep anti-life “benefits” out of benefit plans. Some benefits attorneys

and pro-choice advocates have argued since the Supreme Court’s Dobbs
v. Jackson Women’s Health Organization decision6 that the longstanding
doctrine of Employee Retirement Income Security Act of 1974 (ERISA)7
preemption should block individual states’ efforts to prohibit employers
from helping employees procure abortions via offering various kinds of
coverage under employee-sponsored benefit plans. ERISA should not be
allowed to trump states’ ability to protect innocent human life in the womb.
Congress and DOL should clarify that ERISA does not preempt states’
power to restrict abortion, surrogacy, or other anti-life “benefits.”

RELIGION
l Provide robust protections for religious employers. America’s religious
diversity means that workplaces include people of many faiths and that
many employers are faith-based. Nevertheless, the Biden Administration
has been hostile to people of faith, especially those with traditional beliefs

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about marriage, gender, and sexuality. The new Administration should

enact policies with robust respect for religious exercise in the workplace,
including under the First Amendment, the Religious Freedom Restoration
Act of 1993 (RFRA),8 Title VII, and federal conscience protection laws.

l Issue an executive order protecting religious employers and

employees. The President should make clear via executive order that
religious employers are free to run their businesses according to their
religious beliefs, general nondiscrimination laws notwithstanding, and
support participation of religious employees and employers as federal
contractors and in federal activities and programs.

l Clarify Title VII’s religious organization exemptions. Congress should

clarify Title VII’s religious organization exemptions to make it more explicit
that those employers may make employment decisions based on religion
regardless of nondiscrimination laws.

l Provide Robust Accommodations for Religious Employees. Title VII

requires reasonable accommodations for an employee’s sincerely held
religious beliefs, observances, or practices unless it poses an undue hardship
on the employer’s business. These accommodation protections also apply to
issues related to marriage, gender, and sexuality.

Unless the Supreme Court overrules its bad precedent, Congress should
clarify that undue hardship means “significant difficulty or expenses,” not
“more than a de minimis cost” as the Court has previously held.

General EEOC Reforms. The Equal Employment Opportunity Commis-

sion (EEOC) does not have rulemaking authority under Title VII and other
laws it enforces, yet it issues “guidance,” “technical assistance,” and other
documents, including some that push new policy positions. EEOC should
disclaim its regulatory pretensions and abide by the guidance reforms dis-
cussed below.

l EEOC should disclaim its regulatory pretensions.

l Affirm decision-making via majority vote of Commissioners. EEOC

should affirm as policy the Title VII requirement that it exercise substantive
power via majority vote of Commissioners, not by unilateral Chair action or
by delegation to staff.

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l Disclaim power to enter into consent decrees. EEOC should disclaim

power to enter into consent decrees that require employer actions that it
could not require under the laws it enforces.

l Reorient enforcement priorities. EEOC should reorient its enforcement

priorities toward claims of failure to accommodate disability, religion, and
pregnancy (but not abortion).

Refocusing Labor Regulation on the Good of the Family. The DEI revo-
lution in labor affected not only the administrative state, but it has also targeted
much of the private sector. Owing to the combination of regulatory pressure and
eager human resources offices in the private sector, much of American labor and
employment policy has become institutionally oriented toward “woke” goals.
Retracting regulations that support this revolution is a good first step, but more
is needed. We must replace “woke” nonsense with a healthy vision of the role of
labor policy in our society, starting with the American family.

l Allow workers to accumulate paid time off. Lower- and middle-income

workers are more likely be in jobs that are subject to overtime laws that require
employers to pay time-and-a-half for working more than 40 hours a week.

l Congress should enact the Working Families Flexibility Act. The

Working Families Flexibility Act would allow employees in the private
sector the ability to choose between receiving time-and-a-half pay or
accumulating time-and-a-half paid time off (a choice that many public
sector workers already have). For example, if an individual worked two
hours of overtime every week for a year, he or she could accumulate four
weeks of paid time off to use for paid family leave, vacation, or any reason.

l Congress should incentivize on-site childcare. Across the spectrum of

professionalized childcare options, on-site care puts the least stress on the
parent-child bond.

l Congress should amend the Fair Labor Standards Act (FLSA) to

clarify that an employer’s expenses in providing on-site childcare are
not part of an employee’s regular rate of pay.

l DOL should commit to honest study of the challenges for women

in the world of professional work. The Women’s Bureau at DOL
tends towards a politicized research and engagement agenda that puts
predetermined conclusions ahead of empirical study.

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l The Bureau should rededicate its research budget towards open

inquiry, especially to disentangle the influences on women’s
workforce participation and to understand the true causes of
earnings gaps between men and women.

l Equalize retirement savings access across married households. The

limit on individual contributions to a 401(k), 403(b), or similar work-based
retirement account is $22,500 for 2023. Individuals who do not work or do
not have access to a work-based retirement account can save up to $6,500
in an IRA. This individual-based system creates a disadvantage for married
couples with only one spouse who works (or with two working spouses, one
of whom earns less than the maximum retirement account contribution).

l To equalize access to tax-free retirement savings for married

couples, the limit for married couples on 401(k) and similar work-
based retirement savings accounts should be double the limit for
individuals, regardless of the allocation of work between the couple.

Family Statistics. Every month, DOL’s Bureau of Labor Statistics surveys tens
of thousands of households to generate detailed estimates of labor market condi-
tions and price levels. And every quarter, the Department of Commerce’s Bureau
of Economic Analysis estimates the change in the entire economy’s output to the
fraction of a percentage point. Yet data on the state of the American family and its
economic welfare are released at best annually, and generally a year or more after
the fact. Metrics like marriage and fertility rates, the share of children living with
both biological parents, the cost of a standard basket of middle-class essentials,
and the share of families whose highest-income worker earns more than twice the
poverty threshold should be measured and reported monthly and in real-time and
incorporated in releases for other labor statistics.

l Congress should establish an Assistant Commissioner for Family

Statistics within the Bureau of Labor Statistics.

l Congress should require the Bureau to establish a pilot survey

with a sample comparable to the BLS Current Population Survey
that would publish monthly estimates for measures of the
American family’s wellbeing, and appropriate sufficient funds for
that purpose.

l Congress should require that the Consumer Price Index market

basket include measurable family-essential goods.

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Alternative View. While metrics on the state of American families and civil soci-
ety are important and useful, monthly statistics would be of little additional value
and could end up causing unnecessary confusion and concern. Funding should be
oriented towards improving the timeliness of annual family statistics.
Sabbath Rest. God ordained the Sabbath as a day of rest, and until very recently
the Judeo-Christian tradition sought to honor that mandate by moral and legal
regulation of work on that day. Moreover, a shared day off makes it possible for
families and communities to enjoy time off together, rather than as atomized
individuals, and provides a healthier cadence of life for everyone. Unfortunately,
that communal day of rest has eroded under the pressures of consumerism and
secularism, especially for low-income workers.

l Congress should encourage communal rest by amending the Fair

Labor Standards Act (FLSA)9 to require that workers be paid time and
a half for hours worked on the Sabbath. That day would default to Sunday,
except for employers with a sincere religious observance of a Sabbath at a
different time (e.g., Friday sundown to Saturday sundown); the obligation
would transfer to that period instead. Houses of worship (to the limited
extent they may have FLSA-covered employees) and employers legally
required to operate around the clock (such as hospitals and first responders)
would be exempt, as would workers otherwise exempt from overtime.

Alternative View. While some conservatives believe that the government should
encourage certain religious observance by making it more expensive for employers
and consumers to not partake in those observances, other conservatives believe
that the government’s role is to protect the free exercise of religion by eliminating
barriers as opposed to erecting them. Whereas imposing overtime rules on the Sab-
bath would lead to higher costs and limited access to goods and services and reduce
work available on the Sabbath (while also incentivizing some people—through
higher wages—to desire to work on the Sabbath), the proper role of government
in helping to enable individuals to practice their religion is to reduce barriers to
work options and to fruitful employer and employee relations. The result: ample
job options that do not require work on the Sabbath so that individuals in roles
that sometimes do require Sabbath work are empowered to negotiate directly with
their employer to achieve their desired schedule.
Teleworking. COVID made telework ubiquitous, but the law and regulations
are still stuck in an era when telework was unique.

l Congress should clarify that overtime for telework applies only if the
employee exceeds 10 hours of work in a specific day (and the total
hours for the week exceed 40).

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l DOL should clarify that an employee given the option to telework

need only record time if the quantity of work assigned for that day
exceeds the usual amount of work that employee performs so that
the employee need not track every time he logs in and out and the
employer need not do so either.

l DOL should clarify that a home office is not subject to OSHA

regulations and that time to set up a home office is not compensable
time or eligible for overtime calculations. DOL should likewise
clarify that reimbursement for home office expenses is not part of an
employee’s regular rate, even if those reimbursements are repetitive
(such as for internet or cell phone service).

Making Family-Sustaining Work Accessible. Our national work ethic is an

American hallmark. As Benjamin Franklin once said, “America is the land of labor.”
Much of American life is mediated by Americans coming together to take responsi-
bility for solving problems and helping their communities. Our labor agenda must
allow community institutions, including small businesses, schools and universities,
religious organizations, and worker organizations, to thrive.
Protect flexible work options and worker independence (independent contractors).
Roughly 60 million Americans across all income groups, ages, education levels,
races, and household types participate in independent work, including full-time,
part-time, or as a “side hustle.” People choose independent work for a variety of
reasons, including flexibility, earnings potential, and the desire to be one’s own boss.
An economic analysis of data from one million Uber drivers found that they valued
the flexibility of the platform at 40 percent of their earnings, and the average Uber
driver would not work at all if he or she had to submit to a taxi-cab schedule. The
value of flexibility extends beyond ride-sharing and other platform work; more
than half of people who did independent work in 2021 said they cannot work a
traditional job because of personal or family circumstances such as their health
or caring for a child or family member.
Independent workers, or contractors, are also critical to entrepreneurship
and small-business growth and success. On average, employers with four or fewer
employees rely on seven contractors to run their business. Without the ability to
hire those contractors, many small businesses could not compete with larger ones
that can afford to employ workers in-house.
Businesses and workers currently must navigate many different definitions
of who is and who is not an employee (or an independent contractor) based on
federal and state employment, compensation, tort, tax, and pension laws. This
complexity often leads to confusion, improper classification, and costly litigation.
The Trump Administration finalized rules to provide clarity on which workers

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qualify as an independent contractor or employee under the FLSA and NLRA. The
Biden Administration is replacing those rules with vague and expansive definitions
that would add uncertainty, increase costs, and reduce options for Americans who
want to work independently.

l NLRB and DOL should return to their 2019 and 2021 independent
contractor rules that provided much-needed clarity for workers
and employers.

l Congress should establish a bright-line test—based on the level of

control an individual exercises over his or her work—to determine
whether a payee is an employee or an independent contractor, across
all relevant laws. This would prevent continued uncertainty as well as
provide continuity across federal laws.

l Congress should provide a safe harbor from employer-employee status

for companies that offer independent workers access to earned benefits.
Doing so would increase access among independent contractors to traditional
pooled workplace benefits such as health care and retirement savings accounts.

Protect Small Businesses and Entrepreneurship (Joint Employer). Millions of busi-

nesses across America engage in mutually beneficial affiliation arrangements with
other businesses. These arrangements include janitorial services, staffing firms,
construction contractors and subcontractors, technology support services, and
many other vendor and contracting services. They also include the nearly 775,000
independently owned franchise businesses, which employ 8.2 million workers
across the United States. The franchise structure offers a proven business model for
individuals who want to own and operate their own small business. An Obama-era
regulation changed the definition of a joint employer to make corporate franchi-
sors jointly liable for employees of individual franchisee owners, even without the
franchisor exercising any direct control over those employees. The Biden Admin-
istration is advancing an even more expansive definition of a joint employer that
would upend the franchise business model, taking away ownership and income
opportunities from small-business entrepreneurs, costing jobs, and raising prices.

l DOL and NLRB should return to the long-standing approach to

defining joint employers based on direct and immediate control.

l Congress should enact the Save Local Business Act, which would
codify the long-standing definition that has existed outside the
Obama-era and Biden-proposed rules.

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Overtime Pay Threshold. Overtime pay is one of the most challenging aspects
of the Fair Labor Standards Act rules. “Nonexempt workers” (e.g., workers whose
job duties fall within the law’s power or whose total pay is low enough) must be
paid overtime (150 percent of the “regular rate”) for every hour over 40 in a work-
week. Overtime requirements may discourage employers from offering certain
fringe benefits such as reimbursement for education, childcare, or even free meals
because the benefits’ value may be included in the “regular rate” that must be
paid at 150 percent for all overtime hours. And because some of these fringe ben-
efits may be more valuable (and often come with tax preferences that benefit the
worker), the goal should be to set a threshold to ensure lower-income workers have
the protections of overtime pay without discouraging employers from offering
these benefits.

l DOL should maintain an overtime threshold that does not punish

businesses in lower-cost regions (e.g., the southeast United
States). The Trump-era threshold is high enough to capture most
line workers in lower-cost regions. One possibility to consider (likely
requiring congressional action) would be to automatically update the
thresholds every five years using the Personal Consumption Expenditures
(PCE) as an inflation adjustment. This could reduce the likelihood of
a future Administration attempting to make significant changes but
would also impose more adjustments on businesses as those automatic
increases take hold.

l Congress should clarify that the “regular rate” for overtime pay is
based on the salary paid rather than all benefits provided. This would
enable employers to offer additional benefits to employees without fear that
those benefits would dramatically increase overtime pay.

l Congress should provide flexibility to employers and employees

to calculate the overtime period over a longer number of weeks.
Specifically, employers and employees should be able to set a two- or four-
week period over which to calculate overtime. This would give workers
greater flexibility to work more hours in one week and fewer hours in the
next and would not require the employer to pay them more for that same
total number of hours of work during the entire period.

Compliance-Assistance Programming. Labor agencies are often tempted to

encourage “over compliance” by companies subject to regulation by pursuing
“regulation through enforcement” strategies. Rather than giving regulated enti-
ties clear boundaries for what they can and cannot do under the law, the agencies

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rely on the vagueness of the law to bring enforcement activity against businesses
that fail to meet an inspector or agency head’s personal standard. This is not fair
to regulated parties and results in disfavored companies bearing the brunt of the
agencies’ enforcement efforts even though their behavior may be within the main-
stream of employer behavior.

l Labor agencies should provide compliance assistance to help

businesses and workers better understand the agencies’ position
on their own rules and should do so in a way that makes it easier
to follow those rules. This frees people to focus on their work rather
than slogging through an ever-growing body of laws, rules, and guidance
documents generated by the agencies.

Clear and Restrictive Rules on Guidance Documents. Federal agencies not only
issue regulations to fill in gaps left by legislation, but also supplement those reg-
ulations with “guidance” documents that occupy a unique and often confusing
area between law and “helpful advice.” Unfortunately, wielded by overzealous
enforcement agents, such guidance, some of it even hidden from public view,
morphs into binding law used against unsuspecting employers. Guidance can be
a tricky thing and can be used for good or bad. It should be used to make compli-
cated regulations easier to understand, so that businesses can do their actual jobs
and focus on providing jobs to American workers and value to consumers (really,
compliance assistance). But guidance is often used to create new rules overnight
without following legal requirements—like giving the public an opportunity to
provide valuable input. This wrongful use of guidance hurts workers and those
who employ them. In October 2019, President Trump signed an executive order
ending this abusive practice and created a new, fairer system for American busi-
nesses and their employees. In response, DOL published its PRO Good Guidance
rule,10 which expressly limits its use of guidance in enforcement actions and gives
the public the opportunity to submit comments to influence the department’s deci-
sions on creating, revising, and even rescinding guidance. Under this rule, agencies
cannot treat guidance as legally binding and must make all guidance documents
readily accessible on their searchable online databases. This rule was immediately
rescinded by the Biden Administration.

l DOL should reinstitute the PRO Good Guidance rule via notice
and comment.

l Congress should amend the Administrative Procedure Act11 to

explicitly limit the use of guidance documents.

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Exemptions from Regulations for Small Business. Burdensome regulations have

anti-competitive effects. In general, larger, higher-margin businesses are better
able to absorb the costs of regulatory compliance than are small businesses, and
under the Biden Administration, big-business lobbies have affirmatively embraced
certain regulations (such as the COVID vaccine mandate for private employers) to
reduce competition from smaller businesses. Research suggests that labor regula-
tions may pose the highest aggregate regulatory cost for small businesses.

l The labor agencies should exercise their available discretion and

duties under the Regulatory Flexibility Act12 to exempt small entities
from regulations where possible.

l Congress should enact legislation increasing the revenue thresholds

at which the National Labor Relations Board asserts jurisdiction over
employers to match changes in inflation that have occurred since
1935 and better reflect the definition of “small business” used by the
federal government.

l Congress (and DOL, in its enforcement discretion) should exempt

small business, first-time, non-willful violators from fines issued by
the Occupational Health and Safety Administration.

EDUCATION AND VOCATIONAL TRAINING

Apprenticeships. The next Administration should return to prior policy and
implement an industry-recognized apprenticeship program separate from the
Registered Apprenticeship Program (RAP) and explore how best to modernize,
streamline, and eliminate duplication in the RAP. For roughly 80 years, the RAP—
which requires conforming to government standards and includes federal funding,
tax credits, and other federal resources—has dominated apprenticeship programs
in the U.S. Organizations across the political spectrum have noted that the overly
burdensome requirements of RAPs have contributed to limiting them to legacy
trades, failing to meet growing industry demands such as in health care and tech-
nology. A 2017 study estimated that the number of occupations commonly filled
through apprenticeships could nearly triple (from 27 to 74), that the number of
job openings filled through apprenticeships could expand eightfold (to 3.2 million),
and that the occupations ripe for apprenticeship expansion could offer 20 percent
higher wages than traditional apprenticeship occupations.
The Trump Administration expanded apprenticeship options through the cre-
ation of the Industry-Recognized Apprenticeship Program (IRAP), and more than
130 IRAPs were created. The Biden Administration rescinded the IRAP regulations.

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l Congress should expand apprenticeship programs outside of the RAP

model, re-creating the IRAP system by statute and allowing approved
entities such as trade associations and educational institutions to
recognize and oversee apprenticeship programs.

In addition, religious organizations should be encouraged to participate

in apprenticeship programs. America has a long history of religious
organizations working to advance the dignity of workers and provide
them with greater opportunity, from the many prominent Christian and
Jewish voices in the early labor movement to the “labor priests” who would
appear on picket lines to support their flocks. Today, the role of religion in
helping workers has diminished, but a country committed to strengthening
civil society must ask more from religious organizations and make sure
that their important role is not impeded by regulatory roadblocks or the
bureaucratic status quo.

l Encourage and enable religious organizations to participate in

apprenticeship programs, etc. Both DOL and NLRB should facilitate
religious organizations helping to strengthen working families via
apprenticeship programs, worker organizations, vocational training,
benefits networks, etc.

Hazard-Order Regulations. Some young adults show an interest in inherently

dangerous jobs. Current rules forbid many young people, even if their family is
running the business, from working in such jobs. This results in worker shortages
in dangerous fields and often discourages otherwise interested young workers from
trying the more dangerous job. With parental consent and proper training, certain
young adults should be allowed to learn and work in more dangerous occupations.
This would give a green light to training programs and build skills in teenagers who
may want to work in these fields.

l DOL should amend its hazard-order regulations to permit teenage

workers access to work in regulated jobs with proper training and
parental consent.

Workforce Training Grant Program. The federal government spends more

than $100 billion per year subsidizing higher education but close to zero supporting
people on non-college pathways.

l Congress should create an employer grant worth up to $10,000

per year or pro-rated portion thereof for each worker engaged in

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on-the-job training, defined as some share of paid time spent in a

formal training program.

To qualify, a program—whether run by the employer, an industry

consortium, a community college, or a union—would need to define program
length, curriculum, career path, and credential and to report regularly on
outcomes for participants. Programs that fail to deliver promised results
would be disqualified from continued funding. Funding for employer grants
should come from existing higher education subsidies that are currently
disadvantaging alternative education options.

Federal “BA Box.” The American labor market continues to experience a glut
of college degrees. The country produces more college graduates than suitable jobs
for them to fill. Meanwhile, employers exacerbate the problem, fueling demand
for college by needlessly requiring degrees for many jobs. In 2020, the Trump
Administration took an important step toward pro-worker, skills-based hiring
practices. Executive Order 13932, Modernizing and Reforming the Assessment and
Hiring of Federal Job Candidates,13 directed the Office of Personnel Management
to reduce degree-based practices in the federal civil service. Maryland’s Governor
Larry Hogan issued an executive order in 2022 to adopt this rule for Maryland state
employees, and Utah’s Governor Spencer Cox in December of 2022 announced
that Utah would do the same. Today, federal civil service job descriptions must
“be based on the specific skills and competencies required to perform those jobs,”
and may prescribe a “minimum educational requirement” only if it is otherwise
legally required. The same policies do not extend beyond the civil service. Federal
agencies continue to require college degrees for contract employees, and federal
contractors are rarely able to place workers without four-year degrees on federal
projects, regardless of their qualifications. Private employers consistently impose
a BA requirement on jobs even when existing workers in the role do not have one.

l Adopt the civil service’s skills-based hiring standards for federal

contractors. The President should direct the Administrator for Federal
Procurement Policy to adopt the civil service’s skills-based hiring standards
for federal contractors and issue waivers from degree-based staffing
requirements in existing contracts.

l Prohibit the use of a BA requirement in job descriptions. Congress

should prohibit the inclusion of a BA requirement in job descriptions
for all private sector employers, or the use of a BA requirement to screen
applicants using algorithms, except where a BA from a particular type of
institution or in a particular field is a bona fide requirement of the position.

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Alternative View. While the federal government has a duty to promote economy
and efficiency in federal hiring and contracting, and thus should base decisions on
skills as opposed to degrees, it is not the federal government’s role to determine
whether private employers may or may not include degree requirements in job
descriptions and in their hiring decisions. The inappropriate reverence given to
degree requirements is a byproduct of the federal government’s heavy subsidi-
zation of BA degrees. Phasing down federal subsidies would be a better way to
eliminate barriers to jobs for individuals without BA degrees.
Federal Workforce Development Programs. Existing federally funded work-
force development and training programs should be reassessed to ensure they are
outcome-based and truly deliver value to taxpayers and job seekers.
As of 2019, the federal government spent approximately $17 billion annually on
43 federal employment and training programs administered across nine federal
agencies, many of which overlap with at least one other program. Many of these
programs track only inputs or individuals served, not outcomes or outputs, and do
not swiftly identify bad-actor grantees. The federal government should identify
underperforming programs and eliminate or redirect that funding to programs
with strong outcome-based metrics.

l Evaluate and streamline workforce development programs, ensuring

evidence-based outcomes. In its reauthorization of the Workforce
Innovation and Opportunity Act (WIOA),14 Congress should evaluate and
streamline the existing workforce development programs to ensure there
is no overlap or fragmentation between programs. Congress should also
ensure strong evidence-based outcomes for each program and tie federal
funding for those programs to the outcomes achieved.

l Review employment and training programs to ensure outcome-

based metrics. DOL and other federal agencies with jurisdiction over
employment and training programs should review their programs and
utilize all available tools and authority to ensure these programs contain
strong outcome-based metrics. To the extent that agencies have this
authority, they should reevaluate funding for programs that do not meet
those evidence-based and outcomes-based requirements. Finally, strong
internal policies should be implemented to ensure bad-actor grantees are
identified and sanctioned expeditiously.

Federal Unemployment Insurance Program. In the post-pandemic land-

scape, the federal government should restore the Unemployment Insurance (UI)
program’s purpose with a particular focus on reestablishing program integrity and
accountability. The Coronavirus Aid, Relief, and Economic Security (CARES) Act15

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unemployment programs were defrauded of hundreds of billions of dollars, includ-

ing by state-sponsored hacking groups. Not all state agencies are yet through their
backlogs of appeals and fraud cases; the recovery of lost funds has been minimal;
and fraud has now spilled into the traditional UI programs. The CARES Act era
drastically altered the entire UI ecosystem: The federal–state partnership shifted
toward federal programs and funding, and the social insurance purpose of the
program was disconnected as benefits were extended, expanded to more typically
uncovered populations, and made exponentially larger.

l Congress should enact bipartisan commonsense UI program reforms,

including statutory authority for the Labor Office of Inspector
General (OIG) to access all state UI records for the purposes of
investigation and requiring state agencies to crossmatch applicants
with the National Directory of New Hires.

l Congress should also develop a framework (through commission of a

congressional report to serve as a blueprint) of technical standards
on broader tech topics like usability, state agency cybersecurity
postures, data taxonomy standardization, and/or identity
verification standards.

l Congress should provide DOL with more reasonable enforcement

tools for the UI system. Currently, DOL can either send a strongly worded
letter or revoke the entire Federal Unemployment Tax Act (FUTA)16 tax
credit, which would place an immediate 6 percent to 7 percent tax on all
covered employers.

l DOL should review all actual or planned procurements against

the $2 billion (under the American Rescue Plan Act)17 for UI fraud
detection, accessibility, and equity investments. These funds do not
have appropriations timelines and have very minimal statutory descriptions
of the intended purpose. DOL should also review and propose changes to
improve state monitoring programs including developing evidence-based
frameworks for evaluating the technical readiness and security postures of
the state agencies; strengthen its relationship with the OIG and Government
Accountability Office (GAO), and support continued development of fraud
prosecution with DOJ, the Department of Homeland Security (DHS), and
the financial services community; ensure administrative and IT funding is
outcome-based; and gather and publish best practices from state officials,
industry partners, and other vendors who deliver UI services.

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WORKER VOICE AND COLLECTIVE BARGAINING

Non-Union Worker Voice and Representation. American workers lack a
meaningful voice in today’s workplace. Between 50 percent and 60 percent of
workers have less influence than they want on critical workplaces issues beyond
pay and benefits. Even managers are twice as likely to say their employees have
too little influence rather than too much. But America’s one-size-fits-all approach
undermines worker representation. Federal labor law offers no alternatives to
labor unions whose politicking and adversarial approach appeals to few, whereas
most workers report that they prefer a more cooperative model run jointly with
management that focuses solely on workplace issues. The next Administration
should make new options available to workers and push Congress to pass labor
reforms that create non-union “employee involvement organizations” as well as
a mechanism for worker representation on corporate boards.

l Congress should reintroduce and pass the Teamwork for Employees

and Managers (TEAM) Act of 2022.18 The TEAM Act:

1. Reforms the National Labor Relations Act’s (NLRA) Section 8(a)(2)

prohibition on formal worker–management cooperative organizations
like works councils.

2. Creates an “Employee Involvement Organization” (EIO) to facilitate

voluntary cooperation on critical issues like working conditions,
benefits, and productivity.

3. Amends labor law to allow EIOs at large, publicly traded corporations

to elect a non-voting, supervisory member of their company’s board
of directors.

Alternative View. While some conservatives lament that workers lack sufficient
voice in today’s workplace, others interpret the rise in independent and flexible
work opportunities, significant expansion in family-friendly policies like paid
family leave, and the decline in private sector unionization as indicators of workers’
increasing competency and control. Another way to help expand workers’ freedom
and voices in traditional workplaces is by allowing them to choose who represents
them in negotiations with their employer. The Worker’s Choice Act19 would accom-
plish this by ending exclusive representation so that unions in right-to-work states
are no longer forced to represent workers who do not want to join them.
Union Transparency. Private-sector unions must file detailed financial infor-
mation with DOL—on matters including union spending, income, loans, assets,
membership information, and employee salary—but unions composed entirely

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of state or local employees are exempt from this filing requirement. These dis-
closure requirements help workers and the public understand how union leaders
are raising and spending union dues; they also can serve as a vital source of infor-
mation that helps workers decide if the unions they are asked to join are good
stewards of the funds they collect. DOL, under both George W. Bush and Donald
Trump, tried rulemakings (known as the Intermediate Bodies Rule) that would
require some government unions to file the same information that is required of
private-sector unions.
Under President Trump, OLMS required unions to disclose involvement in
trusts that they either own a majority stake in or control. In the past, union trust
spending has been hidden, and it appears that trust assets have occasionally
been corruptly spent for the benefit of private interests in union leadership—
such as $30,000 spent on a private party, $37,500 spent on a Montblanc pen,
condominiums for those in power, golf outings, and a Ferrari.20 But the Biden
DOL eliminated a transparency rule requiring the filing of the T-1 Trust
Annual Report.
More generally, OLMS, which is charged with enforcing the law of union dis-
closure, has historically been underfunded when compared to other DOL agencies.
This relative lack of funding has made ensuring disclosure more difficult.

l Enact transparency rules. The substance of the Intermediate Bodies Rule

should pass into law, either through rulemaking or through legislation. The
T-1 Trust Annual Report annual filing requirement should be restored.

l Increase funding levels. Congress should expand the funding of the Office
of Labor-Management Standards.

Duty of Fair Representation. Unions have a duty of fair representation to

their members, yet they too often abuse that duty to use their members’ resources
on left-wing culture-war issues that are unrelated, and in fact often harmful, to
union members’ own interests.

l The NLRB should take enforcement or amicus action advancing the

position that political conflicts of interest by union leadership can
support claims for breach of the duty of fair representation in a
manner analogous to financial conflicts of interest and analogous to
breaches of the fiduciary duty of loyalty in other areas of law.

Interpreting “Protected Concerted Activity.” In an effort to prevent

employers from retaliating against workers who express a desire to unionize, cer-
tain activities are deemed “protected concerted activity” (under §7 of the NLRA).

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The NLRB has issued extreme interpretations of these activities, such as deter-
mining that a business’s requiring its employees to be courteous to customers and
one another is an unlawful infringement on the free speech rights implicit in the
protected concerted activity protections in the NLRA.

l Reverse unreasonable interpretations of “protected concerted

activity.” The NLRB should return to the 2019 Alstate Maintenance
interpretation of what does and does not constitute protected concerted
activity, including listing eight instances of lawful actions by employers.

Injunctive Relief and Worker Organizing Activities. Within the confines

of the more reasonable definition of protected concerted activity described above,
the NLRB should increase its pursuit of reinstatement injunctions. Firing work-
ers engaged in concerted activity has an immediate chilling effect on organizing,
but remedies under the NLRA typically come only much later and amount only
to backpay. In NLRA section 10( j), Congress empowered the NLRB to obtain
temporary injunctions that immediately reinstate workers to their jobs in these
circumstances. This provides a more meaningful remedy to the worker and creates
a significant deterrent to unfair labor practices, because prompt reinstatement will
tend to reinforce the legitimacy of the organizing effort. The NLRB overwhelmingly
prevails when pursuing an injunction, succeeding 100 percent of the time in 2020
and 91 percent of the time in 2021.

l Increase the use of 10( j) injunctive relief. The NLRB should increase
its use of 10( j) and should articulate guidelines for situations in which it
intends to seek injunctive relief; the board should delegate authority to
pursue such injunctions to the general counsel and the general counsel
should establish a policy of considering them expeditiously in all retaliation
cases identified by regional offices.

Dues-Funded Worker Centers. Under current law, both labor unions and
unionized employers must file financial disclosures with DOL on an annual basis
to ward off potential fraud and corruption of the sort that has been seen recently
within the United Automobile, Aerospace and Agricultural Implement Workers of
America (UAW). However, worker centers, which have grown in number and influ-
ence enormously over the past decade, are not required to file these disclosures.

l Investigate worker centers and require financial disclosures. DOL

should investigate worker centers that look and act like unions and bring
enforcement actions to require them to file the same financial disclosures.

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Office of Labor-Management Standards Initiative. Currently, the Office of

Labor-Management Standards (OLMS) may investigate potential employer mal-
feasance with regard to union funds in the absence of any complaint by a worker
or union but may not do the same with regard to potential union malfeasance. If
OLMS has evidence that a union may be violating the law based on information
available to the agency (such as annual financial disclosure reports, information
developed during an audit of a union’s books and records, or information obtained
from other government agencies) it should be permitted to open an investigation.
It should have the same enforcement tools available for both employers and unions.

l Revise investigation standards. The Office of Labor-Management

Standards should revise its investigation standards to authorize
investigations without receiving a formal complaint.

Persuader Rule. During the Obama Administration, DOL created significant

regulatory burdens for employers with respect to the advice that employers receive
about union activity. As a general matter, employers who hire lawyers or other con-
sultants to advise employees about union issues must file disclosure forms with the
department, as must the lawyers and consultants themselves. Prior to the Obama
Administration, advice provided solely to the employer required no disclosure.
The Obama Administration attempted to eliminate this “advice exemption” with
a directive known as the “persuader rule,” which was successfully challenged in
court. In 2018, the Trump Administration formally rescinded the persuader rule.

l DOL should rescind the persuader rule once again should the Biden
Administration revive it.

Unionizing the Workplace: Card Check vs. Secret Ballot. Under the
NLRA, instead of having a secret ballot election about the decision to unionize
a workplace, a union may instead collect signed pro-union cards from a majority
of the employees it wishes to represent and then ask the employer and National
Labor Relations Board for voluntary union recognition. That request gives the
employer the option to hold a secret-ballot election or to recognize the union with-
out any such election. This “card check” procedure is likely to induce employees
to provide their signed cards in ways that do not accurately reflect their true pref-
erences—ranging from a desire not to offend the signature requestor to a wish to
avoid intimidation and coercion to signing based on false information provided
by union organizers. In short, the card check procedure sidesteps many aspects of
democratic decision-making that free and fair elections conducted by secret ballot
are supposed to accomplish. Notably, the general counsel of the National Labor
Relations Board has recently proposed an esoteric legal theory that card-check

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decision-making is required under the law, basing this theory on an old NLRB
case, Joy Silk, even though the Supreme Court has repeatedly rejected mandatory
card-check recognition.

l Discard “card check.” Congress should discard “card check” as the basis of
union recognition and mandate the secret ballot exclusively.

Contract Bar Rule. Although current labor law allows a union to establish itself
at a workplace at more or less any time, the calendar for any attempt to decertify
a union is considerably more constrained. If a union is recognized as a collective
bargaining agent, then employees may not decertify it or substitute another union
for it for at least one year under federal law (the “certification bar”). Similarly, when
a union reaches a collective bargaining agreement with an employer, it is immune
from a decertification election for up to three years (the “contract bar”). A typical
consequence of these rules is that employees must often wait four years before
they are allowed a chance at decertification. Employees then have only a 45-day
window to file a decertification petition; if the employer and union sign a successor
contract, then the contract bar comes into play once again—meaning employees
with an interest in decertification must wait another three years.

l Eliminate the contract bar rule. NLRB should eliminate the contract bar
rule so that employees with an interest in decertification have a reasonable
chance to achieve their goal.

Tailoring National Employment Rules. National employment laws like

the Fair Labor Standards Act (FLSA)21 and the Occupational Safety and Health
(OSH) Act22 set out one-size-fits-all “floors” regulating the employment rela-
tionship. These substantive worker protections often do not mesh well with the
procedural worker protections offered through the NLRA’s collective bargaining
process. Unions could play a powerful role in tailoring national employment rules
to the needs of a particular workplace if, in unionized workplaces, national rules
were treated as negotiable defaults rather than non-negotiable floors.

l Congress should amend the NLRA to authorize collective bargaining

to treat national employment laws and regulations as negotiable
defaults. For example, this reform would allow a union to bless a relaxed
overtime trigger (e.g., 45 hours a week, or 80 hours over two weeks) in
exchange for firm employer commitments on predictable scheduling.

Alternative Policy. While some conservatives (including the author of this chap-
ter) believe that it would be a mistake to antagonize unions’ core interests, others

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argue that the next Administration should end Project Labor Agreement require-
ments and repeal the Davis–Bacon Act. And while some conservatives have chosen
not to address massive federal subsidies for unionized labor, others believe that
current laws and regulations that pick winners and losers to the detriment of the
majority of construction workers and to all taxpayers should not be ignored.
Project Labor Agreements (PLAs) are short-term collective bargaining
agreements that apply to construction projects. There are a few reasons that con-
struction projects may benefit from a PLA, and there are many reasons that even
when actively encouraged to do so public construction projects have declined
to use PLAs. Among the consequences: The majority of construction firms and
construction workers are not unionized and their temporary forced unionization
results in large-scale wage theft; construction companies are significantly less
likely to bid on projects with PLAs; and PLAs consistently drive up construction
costs by 10 percent to 30 percent.
The Davis–Bacon Act23 requires federally financed construction projects to pay
“prevailing wages.” In theory, these wages should reflect going market rates for
construction labor in the relevant area. However, both the Government Account-
ability Office and the Department of Labor’s Inspector General have repeatedly
criticized the Labor Department for using self-selected, statistically unrepresenta-
tive samples to calculate the prevailing-wage rates that drive up the cost of federal
construction by about 10 percent. The Davis–Bacon Act redistributes wealth from
hardworking Americans to those that benefit from government-funded construc-
tion projects. Repealing the Davis–Bacon Act would increase worker freedom and
end a longstanding effective tax on American families.

l End PLA requirements. Agencies should end all mandatory Project Labor
Agreement requirements and base federal procurement decisions on the
contractors that can deliver the best product at the lowest cost.

l Repeal Davis–Bacon. Congress should enact the Davis–Bacon Repeal Act

and allow markets to determine market wages.

THE STATES
Worker-led Benefits Experimentation. Workers depend on unemployment
benefits to navigate inevitable market frictions and seek new employment oppor-
tunities. But existing unemployment insurance (UI) is bureaucratic, ineffective,
and unaccountable. The outdated system’s myriad failures during the COVID-19
pandemic highlighted the need for innovations that respond to recipients’ needs.
The most promising avenue for innovation is to involve workers and private-sec-
tor organizations more directly, freed from unnecessary bureaucratic strictures.
Americans take for granted that unemployment benefits must be administered by

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government agencies, but other Western market democracies feature effective and
popular benefits administered by non-public worker organizations.
The next conservative Administration should encourage UI innovation by capi-
talizing on a key feature of the system and principle of conservative policymaking:
federalism. State governments already administer unemployment benefits and
have broad discretion over their programs. Existing statutory language in the Social
Security Act24 does not prohibit non-public organizations from administering the
program, nor does it specifically authorize states to do so. Further, the Adminis-
tration can replicate state-level experiments in welfare programs and empower
state officials to adapt UI to local conditions and needs.

l Approve non-public worker organizations as UI administrators. DOL

should approve, pursuant to § 303(a)(2) of the Social Security Act, non-
public worker organizations as administrators.

l Offer waivers for suitable alternatives. DOL should offer waivers from
the standard requirements imposed on unemployment compensation by §
303(a) and § 303(d) of the Social Security Act to states that propose suitable
alternatives.

l Require organizations to comply with restrictions on political

spending. DOL should establish as a precondition for receiving any public
funds a requirement that an organization comply with restrictions on
political spending as applied to 501(c)(3) charitable organizations.

Labor Law. The federal laws governing labor-management relations have

barely changed in generations, and reforms on the federal level have been almost
impossible to get through Congress. To modernize labor law, the Congress should:

l Pass legislation allowing waivers for states and local governments.

To encourage experimentation and reform efforts at the state and local
levels, Congress should pass legislation allowing waivers from federal labor
laws like the NLRA and FLSA under certain conditions. State and local
governments seeking waivers would be required to demonstrate that their
reforms would accomplish the purpose of the underlying law, and not take
away any current rights held by workers or employers. In addition, waivers
would be limited to a five-year period, after which time they could be
modified, canceled, or renewed.

Excessive Occupational Regulation. Excessive occupational regulation—

most typically encountered as occupational licensing—creates underemployment

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and wasted resources, and artificially increases consumer prices. It is a significant

problem that is difficult to address at the federal level.

l Congress should ensure that interstate compacts for occupational

license recognition that are federally funded do not require new or
additional qualifications (that is, qualifications that do not originate
from state governments themselves) for licensed professionals to
participate.

l Congress should ensure that well-qualified licensees are not locked

out of the job market by restrictive government programs funded by
the federal government. (For instance, medical doctors must complete
residency training to practice, and because Medicare provides funding for
significantly fewer residencies than there are doctors, sizable numbers of
MDs are locked out of the job market every year.)

Wagner–Peyser Staffing Flexibility. State agencies that administer unem-

ployment benefits and workforce development programs should be able to hire
the best people to do the job and should not be required to use state employees if a
contractor can do the job better. Further, the federal government should not force
a state to use non-union labor or union labor for these positions.

l DOL should repromulgate the Trump-era staffing flexibility rule, and

Congress should codify it.

WORKER RETIREMENT SAVINGS, ESG,

AND PENSION REFORMS
l Remove ESG considerations from ERISA. Environmental, Social,
Governance (ESG) investing is a relatively recent strategy promoted by
large asset managers that focuses not only on a company’s bottom line, but
also on the company’s compliance with liberal political views on climate
change, racial quotas, abortion, and other issues. The ESG movement has
focused especially on reducing greenhouse gas emissions. For example, ESG
proponents advocate for divestment from oil and gas companies or the
exercise of investor influence to reduce oil and gas production.

ESG considerations unrelated to investor risks and returns necessarily

sacrifice trust law’s traditional sole focus on investment returns for
collateral interests. And while individual investors may prefer to invest
in “green” companies, “woke” companies, or companies with greater board
diversity, and may even be willing to sacrifice some financial gains to do

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so, the question relevant to DOL is whether, and under what conditions,
fiduciaries should be permitted to follow this path as well.

While Americans are free to invest their own savings however they wish,
in ERISA, Congress imposed strict duties on employer-sponsored worker
retirement plans as a prophylactic protection of workers’ retirement
security in general. Recognizing the unique status of employer-managed
retirement savings, in ERISA, Congress required that fiduciaries
exclusively seek the best interests of plan beneficiaries. Because ESG
investing necessarily puts other considerations before the interests of the
beneficiary, ESG investing by plan managers is an inappropriate strategy
under ERISA.

l DOL should prohibit investing in ERISA plans on the basis of any

factors that are unrelated to investor risks and returns.

l DOL should return to the Trump Administration’s approach of

permitting only the consideration of pecuniary factors in ERISA.
However, this approach should not preclude the consideration of legitimate
non-ESG factors, such as corporate governance, supply chain investment in
America, or family-supporting jobs.

l DOL should consider taking enforcement and/or regulatory action to

subject investment in China to greater scrutiny under ERISA. Many
large retirement and pension plans remain invested in China despite its
lack of compliance with U.S. accounting standards and state control over all
aspects of private capital.

Alternative View. Some conservatives believe that ERISA plan investments

should be made solely on a pecuniary basis and the consideration of any non-pe-
cuniary factor, ESG or otherwise, should be prohibited. Additionally, other
conservatives believe that even though ESG investing is often not a sound finan-
cial strategy, it is not wrong for retirement plans to offer ESG investment options
so long as individuals explicitly acknowledge and choose to pursue investment
options that do not exclusively maximize pecuniary gains.
Thrift Savings Plan. The Thrift Savings Plan (TSP) is the retirement savings
benefit plan for most federal employees and many former employees. The TSP is
managed by the Federal Retirement Thrift Investment Board (FRTIB). At over
$800 billion in assets under management, the TSP is one of the largest retirement
plans in the world.

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l DOL should reverse efforts to politicize the TSP by removing “mutual

fund” windows that encourage ESG, and should clarify the fiduciary
duties of the TSP. Recent efforts by congressional Democrats and the
Biden Administration to politicize the TSP by offering selective “mutual
fund” windows that encourage ESG should be reversed by DOL, and the
fiduciary duties of the TSP should be clarified by the department to preclude
ESG investments absent individual stock selection by the participant.

The TSP is managed under contract by private-sector fund managers. Its

current managers are BlackRock and State Street Global Advisers. Both of
these managers have demonstrated a public commitment to use the funds
they manage to advance ESG.

l The federal government should follow the lead of multiple state

governments in removing their pension funds from fund managers
such as BlackRock and State Street Global Advisers, and contract
with a competitive, private-sector manager that will comply with its
fiduciary duties.

l DOL should also consider bringing enforcement actions against

BlackRock and State Street Global Advisers for their violations of
fiduciary duty while managing the TSP.

l Congress should enact legislation authorizing the FRTIB to exercise

its independent business judgment in exercising the proxy votes for
its holdings of the TSP and provide clear proxy voting guidelines for
the FRTIB to follow. The current proxy adviser market is dominated by
two firms, Institutional Shareholder Services and Glass Lewis, which use
heavily weighted ESG criteria in directing the proxy votes of pension plans.
If feasible, the new legislation should also offer a streamlined process for
other proxy advisers to compete for the TSP’s business.

As the principal retirement savings plan of America’s servicemen and

women, part of the FRTIB’s fiduciary duties in managing the TSP is a duty
not to invest in governments that are enemies of the United States. Yet the
FRTIB has repeatedly approved the investment of TSP funds in Chinese
military companies and state-owned enterprises. Under the Trump
Administration, DOL ordered the FRTIB to cease investments in China.
However, under the Biden Administration, the TSP has made available a
wide range of investments in China.

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l DOL should exercise its oversight of the FRTIB to prohibit

investments in China.

l Congress should enact legislation prohibiting investment of the

TSP in China.

PENSION REFORMS.
Public Pension Plan Disclosure. Residents of states that responsibly manage
their public pension plans (pension plans for State and local government employ-
ees) should not be responsible for bailing out states that do not do so. Money is
ultimately fungible, so federal aid to States can effectively be used to free up other
State funds for pension contributions. Although the federal government does not
impose funding rules on public pension plans, these plans should be required to
disclose the fair market value of plan assets and liabilities (using the Treasury
yield curve as the discount rate) on an annual basis. In the aggregate, these plans
were underfunded on a market basis by $6.501 trillion as of Fiscal Year (FY) 2021,
even though the plans reported underfunding of only $1.076 trillion using overly
optimistic assumptions.

l Disclose the fair market value of plan assets and liabilities. Congress
should require public pension funds to disclose the fair market value of plan
assets and liabilities (using the Treasury yield curve as the discount rate) on
an annual basis.

Multiemployer Plans. At the request of multiemployer union pension plans,

the government has given such plans much more lenient rules and discretion over
funding than it has given to single-employer plans. Multiemployer plans have been
severely mismanaged, and the plans have abused the discretion and deference given
them by federal law and enforcement agencies to make promises that they cannot
keep. As a result, these plans are generally severely underfunded, with $757 billion
in aggregate underfunding, and a funding level of just 42 percent. The Biden Admin-
istration has provided a massive taxpayer bailout to some of these plans, but without
any needed reforms. Even worse, it gave out funds in excess of what the law allows.

l Congress should reform multiemployer pensions to give participants

in these plans the same protections as those in single-employer plans.
Liabilities should be measured similarly to single-employer plans. Workers
should be able to earn benefits at any employer in the plan, but liabilities
should be divided amongst employers, instead of the current illusory
joint and several liability under which no one is ultimately responsible
for making up underfunding. Troubled plans should be prohibited from

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making new pension promises. More timely and detailed reporting

should be imposed.

Pension Benefit Guaranty Corporation. The Pension Benefit Guaranty Cor-

poration (PBGC) insures benefits for private sector pension plans, with separate
single-employer and multiemployer insurance programs.

l The PBGC’s annual report must be submitted on time, and with

timely data that uses fair-market value principles to calculate the
PBGC’s finances. The PBGC has been submitting portions of statutorily
required annual reports many months late and using out-of-date data. And
PBGC's data on plans is almost five years old. These problematic practices
make it difficult for Congress to become aware of serious problems in the
insurance programs, which received a bailout of over $85 billion in the 2021
American Rescue Plan Act.

The PBGC should use existing statutory authority to protect workers,

retirees, employers, and taxpayers by closely monitoring and taking
appropriate remedial action with regard to badly run and underfunded
multiemployer union pension plans, including termination where
appropriate. The PBGC's refusal to use such authority helped cause its
multiemployer program deficit to go from less than $500 million in 2008 to
over $65 billion in 2017.

l Congress should increase the variable rate premium on underfunding

and eliminate the per-participant cap in order to appropriately
take into account risk and limit the degree to which well-funded
pension plans must subsidize underfunded plans. Reforms should
proportionately reduce the fixed per-participant premium to ease the
burden on well-funded plans and also increase premiums on multiemployer
plans to match single-employer plans.

Improving Access to Employee Stock Ownership Plans. Employee Stock

Ownership Plans (ESOPs) are ERISA-covered employee retirement savings
plans that allow employees to receive compensation in the form of equity in their
employer business. These arrangements enable employees to formally partici-
pate as investors in how their employers’ businesses are run. And they also align
employer–employee incentives by giving employees a greater financial stake in the
success of their employers. With over half of small businesses owned by business
owners over the age of 55, ESOPs also create advantageous succession oppor-
tunities that support the continuity of local businesses and regional economic

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development. Finally, ESOPs can enable greater investment returns for employees.
However, ESOPs have to date lacked clear rules under ERISA that recognize their
unique structure and benefits, and this opacity can serve as a barrier to employers
considering adopting ESOPs.

l Provide clear regulations for ESOP valuation and fiduciary conduct.

DOL should make it easier for employers to offer ESOPs by providing clear
regulations for ESOP valuation and fiduciary conduct that encourages the
participation of employee beneficiaries in corporate governance, while
recognizing the importance of financial diversification for retirement security.

Alternative View. Conservatives believe that it is important for American fami-

lies to have control over their savings and to be able to hold diversified assets. While
ESOPs can be a beneficial part of a worker’s and family’s savings, some conserva-
tives believe that the government should not favor one form of investment over
another or make it harder for families to have a diversified investment portfolio.

PUTTING AMERICAN WORKERS FIRST

A labor agenda focused on the strength of American families must put American
workers first. As the family necessarily puts the interests of its members first, so
too the United States must put the interests of American workers first.
Immigration. The H-2A visa, meant to allow temporary agricultural work-
ers into the United States, also suffers frequent employer abuse. The low cost of
H-2A workers undercuts American workers in agricultural employment. The H-2A
program is not subject to any statutory numerical cap and has been expanding in
recent years, surpassing 200,000 visa issuances for the first time in 2019.

l Cap and phase down the H-2A visa program. Congress should
immediately cap this program at its current levels and establish a
schedule for its gradual and predictable phasedown over the subsequent
10 to 20 years, producing the necessary incentives for the industry to
invest in raising productivity, including through capital investment in
agricultural equipment, and increasing employment for Americans in the
agricultural sector.

l Encourage the establishment of an industry consortium and match

funding. Congress should also encourage the establishment of an industry
consortium of agricultural equipment producers and other automation and
robotics firms interested in entering the sector and match funding invested
by the industry, with intellectual property developed within the consortium
freely available to all participants.

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Alternative View. Some conservatives believe that temporary worker programs

help to fill jobs that Americans will not fill, prevent illegal immigration by giving
farmers and others who hire low-skilled labor access to workers, and keep down
the prices of food and other products and services produced by the temporary
workers. Some credibly argue that, absent the H-2A program, many farmers would
have to drastically increase wages, raising the price of food for all Americans, and
that even such wage increases may not be sufficient to attract enough temporary
American workers to complete the necessary farm tasks to get food products to
market since those jobs are, by their nature, seasonal. Those who share this view
argue that any plan to phase out the program should weigh the program’s current
costs (relatively low) and the program’s current benefits (makes American farming
more profitable and sustainable while keeping down food costs).

l Phase out the H-2B visa program. The H-2B visa, for nonagricultural
seasonal workers, suffers from many of the same harms and abuses as H-2A,
albeit of lesser scope because of its cap and distribution across many sectors.
Congress should immediately cap this program at its current levels and
establish a schedule for its gradual and predictable phasedown over no more
than 10 years.

Alternative View. As with the H-2A program, some conservatives see the H-2B
program as a valuable program that provides low-cost temporary workers in jobs
that American companies, by and large, cannot find enough American workers to
fill (e.g., tourist season childcare providers at ski resorts, swimming instructors at
summer camps, housekeepers and groundskeepers at amusement parks, and extra
summer cooks at restaurants that serve national park patrons).These seasonal
jobs are less desirable to Americans who predominantly prefer year-round work.
Labor shortages after the pandemic support this belief. Absent the H-2B program,
many of these seasonal businesses would be forced to cut their hours or even close
altogether. Any plan to phase out the program should weigh the program's current
costs (relatively low) and the program’s current benefits (makes seasonal business
more feasible).
Hire American Requirements. When government purchases goods or ser-
vices, if at all possible, not only should the company be an American company
and the products be manufactured in America, but the companies should also be
encouraged to hire American workers. Likewise, private employers should be free
to prefer our own countrymen.

l Congress should mandate that all new federal contracts require at

least 70 percent of the contractor’s employees to be U.S. citizens, with
the percentage increasing to at least 95 percent over a 10-year period.

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l Congress must amend the law so that employers can again have the
freedom to make hiring Americans a priority. Despite the significant
advantages that preferring citizens over (work-authorized) aliens in hiring
would provide to American workers, businesses, and the country at large,
such a practice has been illegal since 1986.25 This makes no sense.

Alternative View Some conservatives believe that the government has a duty to
limit its spending in order to limit how much it takes from American families. This
means that when the government spends money, it must find the most econom-
ical and effective way to do so. Excessive government spending will be borne by
American workers and families through reduced incomes and purchasing power.
There may be good reasons to require a certain percentage of American workers on
federal contracts, but those decisions should be based on economy and efficiency
as opposed to arbitrary quotas.
Visa Fraud. American businesses that commit visa fraud and hire illegal immi-
grants should not be the beneficiaries of federal spending. But a 2020 report by
the Department of Labor’s Office of Inspector General (OIG) examined the depart-
ment’s process for excluding employers who commit visa fraud and abuse from
federal contracts and found much to be desired.

l To protect the American workforce from unscrupulous immigration

lawyers, employers, and labor brokers, the department must
follow the recommendations of the OIG and institute more robust
investigations for suspected visa fraud and speedier debarments for
those found guilty.

INTERNATIONAL LABOR POLICY

Leveling the International Playing Field for Workers. As recent decades
of intense import competition and offshoring have made clear, American workers
suffer when the U.S. opens its markets to foreign nations’ minimal labor standards
and exploitative conditions. While federal law already prohibits the importation of
goods produced with forced labor, the prohibitions are toothless without effective
means of enforcement and cover only the most basic of workers’ rights. The Trump
Administration and its United States Trade Representative (USTR) took unprece-
dented steps to redress the issue for workers. The U.S.–Mexico–Canada Agreement
(USMCA) contained the strongest and most far-reaching labor provisions of any
free trade agreement (FTA), with protections and commitments to reduce labor
abuses and raise wages. It also established new modes of enforcement.
For future FTAs, the USTR should replicate the labor provisions of USMCA,
especially the provisions to:

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 Mandate for Leadership: The Conservative Promise

l Eliminate all forms of forced or compulsory labor.

l Protect workers’ rights to organize and participate voluntarily in a

union without employer interference or discrimination.

l Create a rapid-response mechanism to provide for an independent

panel investigation of denial of labor rights at covered facilities.

l Shift the burden of proof by presuming that an alleged violation

affects trade and investment, unless otherwise demonstrated.

For future authorizations of Trade Promotion Authority (TPA), the President

should urge Congress to:

l Create mechanisms for supply-chain transparency.

l Institute a general prohibition on forced labor conditions.

Investigate Foreign Labor Violations That Undermine American Work-

ers. The United States’ embrace of globalization has exposed American workers to
unfair competition from nations with cheap, abundant, and often exploited labor.
American workers have, as a consequence, seen their earning power erode. While
negotiating stronger trade agreements with robust labor provisions should be the
primary tool with which to regulate international labor competition, the federal
government can also take steps to identify the worst labor abuses and rule breakers.
DOL’s Bureau of International Labor Affairs (ILAB) plays a critical role in monitor-
ing and enforcing the labor provisions of U.S. trade agreements and trade preference
programs as well as investigating child labor and human trafficking violations.

l The next Administration should focus ILAB investigations on

foreign labor violations that do the most to damage American
workers’ earning power, specifically regimes that engage in child and
forced labor, fail to protect workers’ organizing rights, and permit
hazardous or otherwise exploitative working conditions.

Alternative/Additional View. Conservatives share a belief in protecting and pro-

moting American workers and their families and orienting international policies with
Americans’ interests first. Some conservatives believe that the best way to put Amer-
ica first is by making America more attractive. In addition to restrictions imposed
on other countries, removing existing barriers to American manufacturing, employ-
ment, and commerce can help American workers, entrepreneurs, and families.

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ORGANIZATIONAL AGENDA

Budget
l Reduce the agencies’ budgets to the low end of the historical
average. The Trump Administration’s FY 2020 request, $10.9 billion,
would provide a workable target for spending reductions for DOL,
for example.

l Spending reductions should occur primarily in the Employment and

Training Administration (ETA).

l Focus health and safety inspections on egregious offenders, as other

inspections are often abused and usurp state and local government
prerogatives.

Personnel
l Maximize hiring of political appointees. At its best, the Trump
Administration Department of Labor worked with up to 150 political
appointees. That is still a tiny percentage of the department. The number of
political appointees should be maximized in order to improve the political
accountability of the department.

l Appoint new EEOC and NLRB general counsels on Day One. The Biden
Administration broke significant precedent by firing the EEOC and NLRB
general counsels despite their term appointments. The next Administration
should do the same and expand on the Biden Administration’s new
precedent by refusing to acknowledge terms in other offices, where
applicable, and installing acting or full new officers immediately.

l Implement a hiring freeze for career officials. A hiring freeze imposes

financial discipline on agencies’ personnel costs and reduces agency bloat.

Office of Compliance Initiatives

l DOL should fully staff the Office of Compliance Initiatives (OCI),
which was reopened by the Trump Administration after the Obama
Administration closed its predecessor down. OCI educates employers
and workers on their rights, responsibilities, and available recourse under
the many statutes, rules, and regulations administered by DOL. Most
businesses want to follow the law and OCI exists to make knowing the rules
easier, which leads to increased compliance.

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Improve Visa-Related Labor-Market Monitoring

DOL’s Office of Foreign Labor Certification plays an important role in the
approval of H-visa applications, but it is currently housed in the Employment and
Training Administration, which is DOL’s primary grant-making division.

l OFLC should be moved out of ETA and made directly accountable to

the Secretary with a politically accountable Director.

CONCLUSION
The good of the American family is at the heart of conservative labor policy
recommendations. The longstanding tradition of a strong work ethic in American
culture must be encouraged and strengthened by policies that promote family-sus-
taining jobs. By eliminating the policies promoted by the DEI agenda, promoting
pro-life policies that support family life, expanding available apprenticeship
programs including by encouraging the role of religious organizations in appren-
ticeships, making family-sustaining jobs accessible, simplifying employment
requirements, and allowing employers to prefer American citizens when making
hiring decisions, among the other policy recommendations discussed above, we
can begin to secure a future in which the American worker, and by extension the
American family, can thrive and prosper.

AUTHOR’S NOTE: Many contributors, listed at the front of this volume, deserve credit for this work, but Oren
Cass, Rachel Greszler, Rachel Morrison, Caleb Orr, and Jonathan Wolfson deserve special mention. The author alone
assumes responsibility for the content of this chapter, and no views expressed herein should be attributed to any
other individual.

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ENDNOTES

1. Gretchen Livingston and Anna Brown, “Intermarriage in the U.S. Fifty Years after Loving v. Virginia,” Pew
Research Center, May 18, 2017, https://www.pewresearch.org/social-trends/2017/05/18/intermarriage-in-the-
u-s-50-years-after-loving-v-virginia/ (accessed March 4, 2023).
2. President Lyndon B. Johnson, Executive Order 11246, “Equal Employment Opportunity,” https://www.
presidency.ucsb.edu/documents/executive-order-11246-equal-employment-opportunity (accessed
March 7, 2023).
3. Pregnancy Discrimination Act of 1978, Public Law, 95-555. The Pregnancy Discrimination Act amended Title
VII of the Civil Rights Act of 1964.
4. Consolidated Appropriations Act, 2023, Public Law No. 117-328, div. II, 136 Stat. 4459 (2022).
5. Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq.
6. Dobbs v. Jackson Women’s Health Organization, No. 19-1392, June 24, 2022, https://www.supremecourt.gov/
opinions/21pdf/19-1392_6j37.pdf (accessed March 7, 2023).
7. Employee Retirement Income Security Act of 1974, 29 U.S.C. Ch. 18 § 1001 et seq.
8. Religious Freedom Restoration Act of 1993, 42 U.S.C. Ch. 21B § 2000bb et seq.
9. Fair Labor Standards Act of 1938, 29 U.S.C. § 203.
10. Department of Labor, Promoting Regulatory Openness Through Good Guidance, Federal Register, Vol. 85, No.
168, August 28, 2020, https://www.govinfo.gov/content/pkg/FR-2020-08-28/pdf/2020-18500.pdf (accessed
March 7, 2023).
11. Administrative Procedure Act, 5 U.S.C. Ch. 5, subchapter 1, § 500 et seq.
12. Regulatory Flexibility Act, 5 U.S.C. Ch. 6 § 601 et seq.
13. Donald J. Trump, Executive Order 13932, “Modernizing and Reforming the Assessment and Hiring of Federal
Job Candidates,” Federal Register, Vol. 85, No. 187 (July 1, 2020) pp. 39457–39459, https://www.federalregister.
gov/documents/2020/07/01/2020-14337/modernizing-and-reforming-the-assessment-and-hiring-of-federal-
job-candidates (accessed March 7, 2023).
14. Workforce Investment and Opportunity Act, Public Law 113-128.
15. Coronavirus Aid, Relief, and Economic Security (CARES) Act, S.3548, 116th Congress, 2nd Sess.
16. Federal Unemployment Tax Act, I.R.C., Ch. 23.
17. American Rescue Plan Act of 2021, Public Law 117-2.
18. Teamwork for Employees and Managers (TEAM) Act of 2022, S. 3585, 117th Congress, 2nd Sess.
19. Worker’s Choice Act of 2019, H.R. 5147, 116th Congress, 1st Sess.
20. F. Vincent Vernuccio, “Back to Business,” October 8, 2020, https://www.washingtonexaminer.com/opinion/
back-to-business (accessed March 4, 2023).
21. Fair Labor Standards Act of 1938, 29 U.S.C. § 203.
22. Occupational Safety and Health Act of 1970, 29 U.S.C. Ch. 15 § 651 et seq.
23. Davis–Bacon Act of 1931, Public Law 71-798.
24. Social Security Act of 1935, 42 U.S.C. Ch. 7.
25. The Immigration Reform and Control Act of 1986, Public Law 99-603.

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