The Department of Labor is leading federal agencies on deregulation, and Labor Secretary Alexander Acosta plans to continue reducing red tape. This flurry of activity has irked labor unions at a time when many of their legislative agenda items are advancing among Democrats in Congress.
To curtail the regulatory rollback, Big Labor has decided to take advantage of the public comment period, which is required of all executive agencies—including the Labor Department—using the process of “informal rulemaking.”
Per the Administrative Procedure Act, “informal rulemaking” requires collaborative efforts from other government agencies; it also includes a comment period to allow interested public parties—like hundred-million-dollar labor organizations—to engage in the process.
To get an idea of how unions and labor-affiliated nonprofits might use public comments, consider the comments from the National Labor Relations Board (NLRB) proposal to overturn union-backed Obama-era innovations in defining “joint employers.” (CRC Research Director Michael Watson submitted a comment in favor of the proposal.)
The rule received over 28,000 comments. Many of these comments came from research organizations like the Capital Research Center, trade associations, advocacy organizations, and individual activists and leaders on this issue, but a number came from pre-written form letters circulated by left-wing organizations (an example from Indivisible San Francisco can still be seen here). One comment using this pre-written text can be seen in the photo below:
It’s not a new tactic. In 2015, the Washington Examiner reported that labor organizations, such as the AFL-CIO, were directing members to websites that allowed them to join petitions supporting the Obama administration’s efforts to rewrite overtime laws. The Obama era rules sought to raise the pay threshold for employees to be considered managerial staff which made them exempt from overtime pay.
Treating this as simply another campaign is harmful to the entire process. On the surface, it seems that this process is nothing more than a gesture equivalent to making a phone call to your member of Congress. But, agencies are required to place weight upon the comments of interested parties making it possible that such form-comments can significantly impact a proposed rule or repeal. As a matter of fact, the comment process is so important that the NLRB extended the comment period for the joint-employer rule twice from the original 60 day period to ensure that the full breadth of comments and perspectives were received.
Reviewing the comments can also create delays; the NLRB had to hire a contractor to summarize the joint employment comments, a practice employed by other agencies but opposed by Congressional Democrats who oppose the deregulatory reforms.
In the coming months, the Department of Labor will begin soliciting comments on numerous policy items of interest to labor unions, businesses, and employees, such as overtime ruling.
Expect unions and their allies to continue these tactics, and if supporters of deregulation do not engage in the process, they might succeed.