July 25, 2021

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A new year’s resolution for federal regulators: Educate, don’t regulate!

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Each January millions of Americans resolve to be better versions of themselves, make better choices, and conquer bad habits. Celebrities fill social media with curated resolutions, businesses set new targets, and countless normal folks strive to set bold yet achievable goals. Many others may not make formal resolutions, but embrace the fresh start that a new year brings. Nearly everyone is trying.

But one group I’ve never heard make a New Year’s resolution is federal regulators. Sure, they may privately plan to collect more fines or catch more businesses making mistakes, but it’s rare that their resolutions involve changing their own tendencies to overregulate.

And so, as 2021 begins, I suggest a New Year’s resolution to my fellow federal regulators: educate, don’t regulate!

Looking back on my time leading the Office of Policy at the United States Department of Labor, I am reminded of many stakeholders I’ve been fortunate to meet: workers proud of a job well done; employers large and small struggling to support their employees as they balance work, family, and health during COVID; and business owners looking for talent to help their companies grow. And I’m struck by the reality that government too often assumes that American workers and businesses have unlimited time to keep up with nuanced laws and regulations while also doing their real jobs. Unfortunately, that assumption can lead to an adversarial relationship between regulators and employers.

During President TrumpDonald TrumpFacebook temporarily bans ads for weapons accessories following Capitol riots Sasse, in fiery op-ed, says QAnon is destroying GOP Section 230 worked after the insurrection, but not before: How to regulate social media MORE’s administration, the Department of Labor took two specific steps to elevate education in the midst of regulation: publishing the Pro Good Guidance Rule and reestablishing its Office of Compliance Initiatives.

For years, federal agencies not only issued regulations to fill in gaps left by legislation, but also supplemented those regulations with “guidance” documents that occupied 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, morphed into binding law used against unsuspecting employers.

Guidance is a tricky thing, and can be used for good or bad. It should be used to make complicated regulations easier to understand, so that businesses can do their actual jobs and focus on providing jobs to American workers and value to consumers. But the wrong way, the way guidance is often used, is to create new rules overnight without following legal requirements — like giving the public an opportunity to provide valuable input.

This wrong use of guidance makes lawyers happy, but it hurts workers and those who employ them. Fortunately, in October 2019, President Trump signed an executive order ending this abusive practice and created a new, fairer system for American businesses and their employees.

In response to the president’s executive order, the Department published its Pro Good Guidance rule, which expressly limits its use of guidance in enforcement actions and gives the public the opportunity to submit comments to influence the Department’s decisions on creating, revising, and even rescinding guidance. Under this rule, which I signed, agencies cannot treat guidance as legally binding and must make all guidance documents readily accessible on our searchable online database. And guidance documents not in the database? They don’t count — we rescinded thousands of them.

This rule is just one way this administration has been committed to making transparency the new normal.

To further help businesses comply with law, the Department also reestablished the Office of Compliance Initiatives (OCI), which had been disbanded by the prior administration. Since 2018, OCI has educated employers and workers on their rights, responsibilities, and available recourse under the many statutes, rules, and regulations administered by the Department of Labor. Most businesses want to follow the law and OCI exists to make knowing the rules easier, which leads to increased compliance.

At the Department of Labor, we believe that providing compliance assistance helps businesses and workers better understand the Department’s position on its own rules, and does so in a way that makes following those rules easier. This frees people to focus on their work rather than slogging through an ever-growing body of laws, rules, and guidance documents generated by our Department.

But compliance assistance goes hand-in-hand with strong enforcement. Even with our compliance assistance focus, our enforcement efforts have remained strong. In fact, we’ve set records for enforcement across our agencies in multiples years of this administration.

The Office of Policy has worked with all agencies across the Department to not only use guidance appropriately and make it available on our website, but also to make that guidance more useful for the workers we protect and the job-creating businesses we want to succeed.

So if you’re a federal regulator looking for a 2021 resolution, take an idea from your friends at the Department of Labor: “educate, don’t regulate.” The American people will thank you.

Deputy Assistant Secretary for Policy Jonathan A. Wolfson leads the Office of the Assistant Secretary for Policy at the United States Department of Labor.

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