In an executive order dated August 7, 2025, President Trump called for a reexamination of regulations and guidance for retirement plans. Trump asked regulators to encourage retirement plan administrators to include risky options like alternative assets (or “alts”) in 401(k) and similar retirement plans. Alternative assets could be funds invested in private equity and cryptocurrencies, assets that lack strict regulation and whose value and risk can be hard to assess compared with other types of investments. Because of this, many consider alts to be unsuitable for retirement plans. Trump’s executive order listed direct and indirect interests in private market investments, real estate, digital assets, commodities, infrastructure, and longevity risk-sharing pools.

Currently there are no explicit bans on offering these types of investments in participant-directed retirement plans, but employers and advisers who serve as retirement plan fiduciaries can be sued for including inappropriately risky and costly assets among investment options. (Fiduciaries are required by law to act in the best interests of retirement plan participants.) Outside of retirement plans, marketing private equity and other largely unregulated alternative assets to small investors is mostly prohibited by securities laws, regulations, and agency guidance—though cryptocurrencies and other digital assets can be sold to anyone.

Whether due to fiduciaries’ litigation fear or common sense, alts like private equity have so far made little headway in the 401(k) space, though some major players began marketing managed funds with alternative asset components to 401(k) plan sponsors even before Trump issued his executive order.

Office of Exemption Determinations
Employee Benefits Security Administration
U.S. Department of Labor
200 Constitution Ave., N.W.
Suite 400
Washington, D.C. 20210

Re: Application No. D-12011
Improving Investment Advice for Workers & Retirees

To whom it may concern:

The Economic Policy Institute (EPI) is a nonprofit, nonpartisan think tank created in 1986 to include the needs of low- and middle-income workers in economic policy discussions.

EPI and other organizations representing workers, consumers, investors, and retirees submitted a joint letter opposing the Department of Labor’s proposed new retirement advice rulemaking package. EPI is submitting a separate letter to elaborate on some of the points made in the joint letter.

In the joint letter, EPI and the other co-signers objected to the department’s final rule reinstating the 1975 regulatory definition of fiduciary investment advice and the department’s proposed exemption allowing investment advice fiduciaries to earn conflicted compensation when providing advice regarding retirement account investments.

With respect to reinstating the old definition of fiduciary advice, the joint letter points out that the five-part test excludes most of the conflicted “advice” retirement savers receive, since only advice provided on a regular basis, not offered under the guise of investor education, and intended to serve as a primary basis for the retirement saver’s investment decision is considered fiduciary advice. This narrow definition allows financial professionals to disguise sales pitches tainted by conflicts of interest as disinterested advice, notably when encouraging 401(k) account holders to roll over their balances into higher-cost investments, including opaque and illiquid investments not regulated by the Securities and Exchange Commission (SEC).

Opening the door wider to conflicts of interest, the department is also proposing a new exemption to the prohibited transaction provisions under the Employee Retirement Income Security Act of 1974 (ERISA), allowing fiduciaries who provide advice on retirement investments to receive compensation that creates a conflict of interest. The proposed prohibited transaction exemption, which only requires that an effort be made to mitigate the conflict, is modeled on the SEC’s vague Regulation Best Interest (“Reg. BI”). It broadens ERISA’s exemption from fiduciary status to include professionals providing “advice” on annuities and other investment products not considered securities and therefore not subject to SEC rules.

As EPI and others noted when the SEC proposed Reg. BI, nothing in that regulation requires financial professionals to act in investors’ best interest. Rather, the “best interest” standard appears indistinguishable from the Financial Industry Regulatory Authority’s (FINRA’s) “suitability” standard, which only prohibits financial professionals from steering investors to egregiously unsuitable products, such as recommending highly risky investments to risk-averse clients. It does not prevent broker-dealers and others from promoting higher-cost but “suitable” investments when similar or better lower-cost investments are available.

The department claims that reinstating the old fiduciary definition and proposing a new prohibited transaction exemption is intended to improve investment advice and options for workers and retirees. This is not supported by the evidence. As we discuss at greater length in our comment on the SEC’s proposed Reg. BI, the industry lobby—despite the considerable resources at its disposal—has failed to show that conflicted “advice” is, on net, valuable to investors. However, the SEC and DOL appear to accept this at face value.

Prohibiting conflicted transactions does not entail a societal cost, even if there are costs to some professionals and firms, if these transactions involve rent-seeking as opposed to wealth-generating behavior. From our letter to the SEC:

Conflicts of interest between buyers and sellers are commonplace. Many salesmen, including brokers and car dealers, are paid on commission. However, it has long been recognized that markets for professional advice are different from markets for automobiles because information asymmetries are inherent in these transactions.

For this reason, markets for professional advice are highly regulated and often impose an affirmative duty on professionals to act in their clients’ interest, while specifically prohibiting transactions that involve conflicts of interest. For example, doctors operating under a duty of care to patients cannot be compensated by pharmaceutical companies for prescribing specific medications. These regulations are imperfect, however. In most states, doctors may be wined and dined by pharmaceutical companies and offered other inducements, as long as these are not contingent on prescribing medications.

It is currently legal for some financial professionals, notably broker-dealers, to present themselves as disinterested advisers while recommending products or services that are clearly worse for investors but more lucrative for sellers than available alternatives. When broker-dealers present themselves as “advisers” in order to sell investment products and services for which they receive commissions, it is as if pharmaceutical representatives were not just influencing doctors and patients through gifts and advertisements, but selling drugs directly to patients while presenting themselves as healthcare professionals…

[In] combatting the DOL’s fiduciary rule, industry focused on evidence that the rule would limit the range of products and services offered to retirement savers, including incidental “advice” offered to clients by broker-dealers.1 The short-lived DOL rule did affect the mix of products and services marketed to investors, accelerating a flight from high-fee products and broker-dealer services in favor of lower-cost products and unbiased advice from fiduciary advisers and “robo-advisers” among others.2

It is not clear whether the rule resulted in fewer choices for investors, rather than different choices. In any case, the SEC appears to have accepted the industry argument that more choice is inherently better, ignoring evidence that choice overload can hinder decision making. This is especially true in retirement savings decisions and other contexts in which decision-making is difficult due to complexity and asymmetric information.3

Admittedly, the government is not generally in the business of limiting consumer choice for its own sake, even if this might make many consumers better off.4 However, if limiting conflicted investment advice indirectly results in better but possibly fewer investment options, this is a desired outcome, not a valid argument against such limits. Simply put, we should not mourn the loss of products and services that are only competitive if recommended by conflicted advisers…

A regulation that corrects a market failure—in this case, an information asymmetry between financial professionals and unsophisticated investors—is, by design, costly to businesses that thrive on taking advantage of the market failure. The cost to these businesses is not, however, a societal cost, except to the extent that compliance is costly for all businesses and these costs are passed on to consumers. Only in this case must the costs to businesses be weighed against the benefits to consumers. Otherwise, one firm’s loss is another’s gain, and society clearly benefits from correcting the market failure…

[Much] of the “advice” provided by broker-dealers not only lacks value, but is actually harmful, steering savers to higher-cost products and costly services that will reduce their future standard of living compared to how they would fare in the absence of this “advice.” This may be true whether or not, in the absence of conflicted “advice,” investors would have availed themselves of more paid or free advice from more impartial sources…

[It] is unlikely that broker-dealer commissions actually pay for useful advice. Most of the advice retirement savers and other small investors benefit from is generic, and the marginal cost of disseminating it is negligible. The fact that generic advice resembles a public good suggests that it should be—and is—provided by government agencies and nonprofit organizations. However, since appraising and absorbing such information can be difficult and time consuming, bad information from conflicted advisers can be worse than superfluous, it can be harmful to small investors, making them less likely to avail themselves of useful advice.

To the extent that small investors could actually use one-on-one advice, it is often to counter misinformation from conflicted advisers. Beyond that, financial technology is making it easier to provide low-cost investment advice tailored to individuals’ risk preferences. Meanwhile, advice from unbiased sources is available free or at low cost from library books, newspapers, and online—including from the SEC itself. This is all that many investors need, given the ready availability of low-cost, broadly-diversified, mutual funds.

Some investors, of course, do benefit from advice tailored to their specific needs. But there is no reason to believe that this advice will be more affordable if paid for indirectly through broker-dealer commissions. Hiring a fiduciary adviser may cost more up front than paying broker-dealer commissions, but the advice received is of better quality. In reality, the value of broker-dealer “advice” is likely to be negative…

[The] relevant question is not whether consumers lose access to certain products and services currently being offered. After all, if the goal is to restrict “advice” steering savers to poor investments, any effective regulation will reduce conflicted “advice” and make overpriced or lower-quality products less competitive. Rather, the question is whether consumers gain or lose from changes in products and services resulting from regulation, including newly available products and services and impartial advice that was previously buried under misinformation.

It is undoubtedly true that with effective regulation consumers will be offered less bad advice and fewer unnecessarily expensive products and services, and that companies and individuals engaged in such practices will be negatively affected, though other financial actors stand to gain. This is the purpose of the regulation, after all.

Does anyone truly believe that conflicted advisers help resolve information problems, rather than contributing to them? We are inclined to agree with authors Helaine Olen and Harold Pollack that everything most people need to know about personal finance can fit on an index card—unless, that is, they have been misled by conflicted advisers.5 One of the authors’ nine index card tips was to seek financial advice only from professionals held to a fiduciary standard.

The financial industry lobby failed to credibly demonstrate that there was a societal cost to the DOL rule, as opposed to a cost to some financial professionals and firms. Government regulators should not be in the business of protecting industry profits if these come at the expense of consumers. Industry groups failed to even clear a lower bar—demonstrating that a significant number of consumers would be hurt, even if most benefited.

Critics of regulation often say government should not be in the business of picking winners and losers. However, the same may be said of a failure to act if the playing field is not level. The government is, in effect, enabling bad actors at the expense of those who provide unbiased advice and sell products that are in clients’ true best interest…

The industry never bothered to explain why affordable “advice” can only be provided by conflicted professionals acting in the guise of disinterested experts to clients often unaware that they are paying for this supposed service…

Effective regulation—in whatever form it takes—should reduce the biased “advice” received by consumers and make the market for investment products and services more competitive. This in turn should crowd out higher-cost and lower-quality products and services, while expanding opportunities for businesses offering better options. Whether or not consumers are left with fewer choices, they will benefit from better ones.

Our full letter to the SEC is available here: https://www.epi.org/publication/epi-comments-regarding-regulation-best-interest/

In short, the old definition of fiduciary advice that the department is attempting to restore is so narrow as to allow virtually all the abuses that the department’s fiduciary rule, which this administration has abandoned, was intended to address. The SEC’s Reg. BI is equally toothless and should not serve as a model for the department.

Respectfully,

Monique Morrissey
Economist, EPI

Heidi Shierholz
Senior Economist and Director of Policy, EPI

Notes

1. See, for example, U.S. Chamber of Commerce, “Fiduciary Rule: Initial Impact Analysis,” September 7, 2017.

2. Brian Menickela, “The DOL Rule – It Was The Best Of Times, It Was The Worst Of Times,” Forbes, August 21, 2017.

3. Sheena Sethi-Iyengar, Gur Huberman, and Wei Jiang, “How Much Choice is Too Much? Contributions to 401(k) Retirement Plans,” in Olivia S. Mitchell and Stephen P. Utkus (Eds.) Pension Design and Structure; New Lessons from Behavioral Finance, Oxford University Press, 2015; Shlomo Benartzi and Richard H. Thaler, “Heuristics and Biases in Retirement Savings Behavior,” Journal of Economic Perspectives, Volume 21, Number 3, Summer 2007, Pages 81–104; Shlomo Benartzi and Richard H. Thaler, “Naive Diversification Strategies in Defined Contribution Saving Plans,” American Economic Review, Vol. 91, No. 1, March 2001, pp. 79-98.

4. Barry Schwarz, The Paradox of Choice; Why More is Less, New York: HarperCollins, 2004.

5. Helaine Olen and Harold Pollack, The Index Card: Why Personal Finance Doesn’t Have To Be Complicated, New York: Penguin Random House, 2017.

Hearing on “Regulatory Reform: Unleashing Economic Opportunity for Workers and Employers,” U.S. House of Representatives Committee on Education and the Workforce, Subcommittee on Workforce Protections, Wednesday, May 23, 2018, 10:00 a.m., Room 2175, Rayburn House Office Building

Thank you Chairman Byrne, Ranking Member Takano, and other distinguished members of the subcommittee. My name is Heidi Shierholz and I am an economist and the Director of Policy at the Economic Policy Institute (EPI), one of the nation’s premier think tanks for analyzing the effects of economic policy on the lives of America’s working families. Prior to joining EPI in early 2017, I was the Chief Economist at the U.S. Department of Labor (DOL).

Thank you for holding this important hearing on regulatory reform. Regulations put laws into action. Congress passes laws, and then federal agencies set the rules for how those laws are followed. For example, if Congress passes a law directing the Occupational Safety and Health Administration (OSHA) to ensure “safe and healthful working conditions” in America’s workplaces, OSHA responds by promulgating specific rules that employers must follow in order to establish safe and healthful workplaces for their employees. Regulations therefore play an essential role in protecting workers—ensuring safe workplaces and fair pay and protecting workers’ rights to organize and join a union so they can bargain collectively with their employers.

But regulations don’t just provide essential protections; research shows that federal regulations also provide a large net benefit to the economy. Rhetoric attacking regulations generally alleges that regulations are overly burdensome for employers and cost jobs, and opponents of regulations routinely emphasize the costs associated with regulations while ignoring their benefits. However, research shows that federal regulations in fact provide an overall net economic benefit and that they have a modestly positive or neutral effect on employment.

To assess whether a regulation should be undertaken, agencies consider a comprehensive set of benefits and costs over a broad time horizon. For example, regulations establishing workplace safety standards save lives, and environmental protection regulations conserve natural resources and improve public health, which may provide benefits for generations. Safety regulations may require substantial upfront investments in safety equipment, but those investments pay off over the long term through a reduction in illnesses like lung cancer and through lives saved over decades. In addition, the need for the safety equipment creates jobs for the people producing the equipment.

Each year the Office of Management and Budget (OMB) reports to Congress on the costs and benefits of federal regulations, with a focus on regulations for which agencies are able to estimate and monetize both costs and benefits. In its most recent report, OMB found that during the last administration, from January 21, 2009, to September 20, 2015, the estimated annual net benefit (benefits minus costs) of major federal regulations was between $103 and $393 billion.1 In other words, federal regulations are providing a net benefit to society of over $100 billion per year. And these numbers are consistent with prior OMB reports. OMB reviewed major regulations from 2000 to 2010 and estimated that the average annual benefit of major regulations is about seven times the cost.2 OMB’s findings are even more significant when you consider studies showing that government regulators generally overestimate costs.3 Further, many benefits are never monetized, but almost all costs are.

Research on the relationship between employment and regulations generally finds that regulations have a modestly positive or neutral effect on the net number of jobs in the economy.4 How might regulations create jobs? When regulations reduce jobs in one area, they create jobs in another. For example, factories making lead paint shut down after regulations banning lead paint were issued in the late 1970s, but enterprises manufacturing lead-free alternatives arose in their place. And some of the older factories hired people to retool machinery to begin manufacturing lead-free paint.

“Mass layoff events” are incidents in which at least 50 unemployment insurance claims are filed against an employer during a five-week period. According to the latest data available (2011 and 2012), employers cited regulations as the reason for mass layoffs in just a tiny share of mass layoff events—one-quarter of one percent.5 The editors of an important collection of essays on the impact of regulations on employment summed up their findings in the following way: “Regulation plays relatively little role in affecting the aggregate number of jobs in the United States… Studies generally find either no strong relationship at all or relatively modest effects of regulation on employment.”6 Even conservative researchers at the Mercatus Center at George Mason University have thrown cold water on the notion that federal regulations are a drag on the economy. In a 2014 report, using a database that attempts to measure the extent to which regulations constrict the freedom of businesses to operate, Nathan Goldschlag and Alexander Tabarrok found that “federal regulation has little to no effect on declining dynamism.”7

On the other hand, the lack of sensible regulations can lead to economic catastrophe and the loss of millions of jobs. The belief that financial markets can “self-regulate” led to a wave of deregulation and lax enforcement beginning in the late 1970s and persisting right up to the financial crisis that precipitated the Great Recession of 2007–2009. Deregulation and lax enforcement played a major role in the housing bubble and the financial and economic crisis that ensued when the bubble burst.8 Nearly nine million jobs were lost in 2008 and 2009. In the wake of this crisis, officials in charge of the nation’s two main financial regulatory agencies stated that self-regulation had failed. As Christopher Cox, then-chairman of the Securities and Exchange Commission, stated, “We have learned that voluntary regulation does not work. . . . The lessons of the credit crisis all point to the need for strong and effective regulation.”9

Despite this evidence, President Trump and congressional Republicans have engaged in an unprecedented attack on regulations over the last 19 months, rolling back rules that were intended to protect workers, consumers, and public health. The Trump administration and congressional Republicans have been successful in repealing many existing regulations and making it more difficult for government agencies to effectively regulate industries. One of President Trump’s first actions after taking office was to issue an executive order requiring federal agencies to identify at least two existing regulations to “repeal” when proposing a new regulation.10 The Trump administration’s Office of Information and Regulatory Affairs reported that federal agencies issued 67 deregulatory actions and three regulatory actions during fiscal year 2017.11

Congressional Republicans have been instrumental in supporting this deregulatory effort. In the first 90 days of the congressional session, the House and Senate used Congressional Review Act (CRA) resolutions—which provide for a quick process to overrule recent regulations—to overturn 14 Obama-era rules.12 Prior to the 115th Congress, the CRA had only been successfully used to repeal a rule once, in 1996.13

An examination of the regulations repealed or rescinded reveals that many of the rules that were eliminated provided important protections to our nation’s workers. President Trump and congressional Republicans have blocked regulations that protect workers’ pay, safety, and rights to organize and join a union. By blocking these rules, the president and Congress are raising the risks for workers while rewarding companies that put their employees’ health, safety, and paychecks at risk. Below are some key examples.14

Rolling back a rule that required employers to keep accurate records of workplace injuries and illnesses

Congressional Republicans approved and President Trump signed a Congressional Review Act resolution blocking the Workplace Injury and Illness recordkeeping rule, which clarifies an employer’s obligation under the Occupational Safety and Health Act to maintain accurate records of workplace injuries and illnesses.15

Recordkeeping is about more than paperwork. If an employee is injured on the job (for example, is cut or burned, or suffers an amputation), contracts a job-related illness, or is killed in an accident on the job, then it is the employer’s duty to record the incident and work with the Occupational Safety and Health Administration to investigate what happened. Failure to keep injury/illness records means that employers, OSHA, and workers cannot learn from past mistakes and makes it harder to prevent the same tragedies from happening to others. By signing the resolution to block this rule, President Trump gave employers a get-out-of-jail-free card when they fail to maintain—or when they falsify—their injury/illness logs. Workers who could have been saved from preventable accidents on the job will have to pay the price with their health or even their lives.

Delaying a rule requiring employers to submit injury and illness records electronically to OSHA

OSHA’s electronic recordkeeping rule is an important supplement to the recordkeeping rule described above. The Obama-era rule does not create any new reporting requirements for employers—it simply requires employers who are currently required to keep OSHA injury and illness records to submit their records to OSHA electronically, making them publicly available. Improving data collection and dissemination of injury and illness incidents in America’s workplaces will allow OSHA, employers, employees, employee representatives, other government agencies, and researchers to identify patterns so that workplace hazards can be addressed and worker injuries and illnesses prevented. And because this information will be easily accessible to a broad audience on OSHA’s website, employers are more likely to comply with workplace safety rules to protect their workers—knowing that they’ll have to answer to the public if they don’t.16

According to the final rule, employers covered by the rule were required to submit their 2016 records electronically by July 1, 2017. But delays by OSHA pushed back the compliance date to December 2017, nearly six months after the original date.17 Most troubling, though, was OSHA’s November 2017 announcement that it intends to “reconsider, revise, or remove portions of that rule in 2018.”18

In 2016 alone, well over 5,000 workers died on the job.19 If OSHA rescinds or weakens this rule in 2018, it will mean that patterns of unsafe working conditions may be harder to detect, making workplaces even more dangerous for workers.

Rolling back protections for workers exposed to beryllium

On January 9, 2017, the Occupational Safety and Health Administration published its final rule on occupational exposure to beryllium and beryllium compounds, which was promulgated to protect employees exposed to beryllium from significant risks of chronic beryllium disease and lung cancer.20 Under the Trump administration, OSHA proposed to rescind some provisions of the rule intended to protect workers in the construction and shipyards sectors.21 DOL announced that OSHA will not enforce the shipyard and construction standards until further notice while this new rulemaking is underway.22

About 62,000 workers are exposed to beryllium in their workplaces, including approximately 11,500 construction and shipyard workers.23 The Trump administration’s proposal would rescind important ancillary protections in the new rule, which was issued after decades of effort and study that uncovered overwhelming evidence that OSHA’s 35-year-old beryllium standard did not protect workers from severe lung disease and lung cancer.24 Under President Trump’s proposal, employers in construction and maritime would, for example, no longer have to measure beryllium levels or provide medical testing to workers at risk of fatal lung disease.

Proposing to increase hog line speeds, endangering workers

The Trump Department of Agriculture proposed regulations to create the New Swine Inspection System, which would allow for an unlimited increase in hog slaughter line speeds—putting worker safety at risk. Meat slaughter and processing is a high-hazard industry. Even at current line speeds, pork slaughter and processing workers face many job risks that can lead to severe injury, illness, and death.25 The pork industry is already one of the most dangerous for workers, who work in cold, wet, noisy, and slippery conditions making tens of thousands of forceful repetitive motions using knives, hooks, and saws. Meatpacking workers are injured or made ill at work at 2.4 times the rate of workers in other private-sector industries, and they face work-related injuries or illnesses that result in lost time or restrictions at nearly three times the rate of workers in other private-sector industries. Further, meatpacking workers experience hearing loss at nearly 17 times the rate of workers in other private-sector industries.26 Increasing line speeds will almost surely lead to an even greater rate of injuries and illnesses among meatpacking workers, and the medical and indirect costs to workers and employers of these additional occupational injuries and illnesses will be sizable. Even a 1 percent increase in nonfatal injuries and illnesses as a result of the rule would increase the cost of the rule by well over $2 million annually.27

Proposing to weaken protections for farmworkers

The President Trump Environmental Protection Agency proposed weakening regulations protecting farmworkers from harmful effects of pesticide exposure.28 The regulations prohibit workers younger than 18 from handling pesticides, require that other workers receive annual safety training on handling pesticides, and require employers to post warning signs around pesticide-treated areas.29 The EPA proposed these standards in 2014, and many of the protections have already gone into effect.30 The EPA itself has estimated that roughly 2,000–3,000 cases of acute pesticide exposure occur among farmworkers every year,31 with health effects ranging from rashes, nausea, blisters, and respiratory issues to Parkinson’s disease.32 Rolling back these standards exposes farmworkers to additional risks of illness and death.

Proposing to make it legal for employers to take workers’ hard-earned tips

On December 5, 2017, the Trump administration Department of Labor issued a proposal to allow employers to collect their workers’ tips, ostensibly to distribute them more evenly through tip pools. However, the rule was written in such a way that it would have made it legal for employers to simply pocket tips. This would have been a major windfall to restaurant owners and other employers of tipped workers, out of the pockets of people who work for tips. EPI estimated that if that rule were finalized, workers would lose $5.8 billion a year in tips, with $4.6 billion of that coming from the pockets of women working in tipped jobs.33

In a highly unusual move, DOL did not provide an estimate of the dollar amount of tips that would be shifted from workers to employers as a result of the rule—even though the department was required, as a part of the rulemaking process, to assess all quantifiable costs and benefits to the fullest extent possible. DOL initially claimed it could not do an analysis, when in actuality it did produce an estimate—and then buried it because it showed the rule would be terrible for workers.34 Thanks to investigative reporting, it is now known that Secretary of Labor Alexander Acosta went to the highest level within the White House Office of Management and Budget to get the green light he needed to bury the required analysis.35 Likely in large part due to these revelations, DOL came to the table to hammer out a compromise. The omnibus spending bill that President Trump signed on March 23 included a provision that makes it clear that employers may not keep any tips received by their employees.

Taking money out of workers’ pockets by weakening the overtime rule

In 2016, after years of work, the Department of Labor updated the “overtime pay” rule, raising the salary threshold below which workers are automatically eligible for overtime pay to $47,476 36 and giving 12.5 million people new or strengthened overtime protections.37 Because the threshold had not been adequately updated over the last few decades, it had eroded dramatically with inflation. The percentage of full-time salaried workers automatically eligible for overtime based on their pay dropped from more than 60 percent in 1975 to less than 7 percent in 2016.38 Prior to the 2016 rule, low-level managers who made only $23,660 a year—lower than the poverty rate for a family of four—could be required to work long hours without any extra pay for the extra hours worked.39

The 2016 updated overtime pay rule would have helped ensure that middle-class Americans who work hard get a fair return on that work—putting money in people’s pockets and giving them the chance to spend more time with their families. However, the Obama administration DOL’s overdue attempt to restore lost pay to America’s workers was blocked in the courts by corporate interests, and, on October 30, 2017, the Trump administration made clear that it would not defend the rule. The Trump administration has signaled that it is going to undermine the rule with new rulemaking, once again siding with corporate interests over workers.40

Rolling back rules that made it easier for workers to save for retirement

On April 13, 2017, President Trump signed two resolutions blocking DOL rules that assisted local governments that create Individual Retirement Account (IRA) programs for private-sector workers. Many municipalities have sought to establish initiatives requiring employers that do not offer a workplace retirement plan to automatically enroll workers in payroll-deduction IRAs administered by the local government. The DOL rule paved the way for these initiatives by simply clarifying that these plans are not covered by the Employee Retirement Income Security Act (ERISA), the federal law governing private-sector employer-sponsored plans, addressing localities’ concerns that they may be subject to certain liabilities under ERISA.41 The Government Accountability Office warned that such legal uncertainties could delay or deter states’ efforts to expand coverage.42

By blocking this rule, President Trump blocks a path for retirement savings for the roughly 55 million private-sector wage and salary workers ages 18–64 who do not have access to retirement savings plans through their employers. Local payroll-deduction savings initiatives encourage workers to contribute to tax-favored IRAs through automatic deduction. These savings initiatives provide important assistance to workers in saving for retirement, as few workers contribute to a retirement plan outside of work. Without innovations like these, fewer workers will be able to afford retirement.43

Delaying a rule providing crucial protections for retirement savers

On February 3, 2017, President Trump issued a Presidential Memorandum to review the “fiduciary” rule.44 This was just two weeks into his administration, a clear signal that undermining this common sense rule is a top priority for the administration. The fiduciary rule required that financial professionals presenting themselves as investment advisers act in their clients’ best interests. The rule is needed because “conflicted” advice leads to lower investment returns, causing real losses—an estimated $17 billion a year—for the clients who are victimized.45 The rule would prohibit common practices such as steering clients toward investments that pay the adviser a commission but provide the client a lower rate of return. It was exhaustively researched by the Department of Labor and debated over several years, survived several court challenges, and was completed in 2016. It was supposed to be implemented on April 10, 2017.

However, unscrupulous players in the financial industry are working to kill the rule so they can continue fleecing retirement savers. The Trump administration is doing everything it can to help them, for example instituting various delays of the rule. I estimate that these delays alone will cost retirement savers $18.5 billion over 30 years.46

Though the rule withstood numerous legal challenges, the 5th Circuit Court of Appeals vacated the rule in March. Subsequently, the Department of Labor announced that “pending further review” it would not be enforcing the rule.47 The administration did not appeal the 5th Circuit decision, which came two days after a 10th Circuit decision upholding the rule, leaving the rule in legal limbo.

Rolling back a rule ensuring that unemployed workers can access earned benefits

Congressional Republicans approved and President Trump signed a resolution that blocked a regulation establishing rules for drug testing applicants for unemployment insurance (UI) benefits.48 As part of the deal, states were permitted to drug test only those UI applicants who had been discharged from their last job for drug use or whose only suitable work opportunity is in a field that regularly drug tests workers. The rule directed the secretary of labor to determine which occupations regularly drug test workers. The Department of Labor issued a rule defining such “occupations” as those that are required, or may be required in the future, by state or federal law, to be drug tested.49

This rule would have clarified circumstances under which individuals filing for unemployment benefits may be subjected to drug testing. Mandatory drug testing for UI applicants is arguably unconstitutional and unnecessarily stigmatizes jobless workers. Conditioning receipt of UI benefits on this type of requirement fundamentally changes our nation’s UI system, creating the perception that workers do not earn unemployment insurance. But workers do earn the right to unemployment insurance benefits through their prior participation in the workforce. Workers only access their earned benefits when they lose their jobs through no fault of their own and are actively working to find new ones; this insurance is intended to help cover workers’ basic needs during this gap period between jobs. The repeal of this rule will hurt workers when they are at their most vulnerable, while benefiting companies seeking to reduce their tax obligations.

Putting the EEO-1 pay data collection requirements on hold

The EEO-1 pay data collection requirements were intended to identify and fix pay disparities in America’s workplaces. They would have required large companies (with 100 or more employees) to confidentially report to the Equal Employment Opportunity Commission (EEOC) information about what they pay their employees by job category, sex, race, and ethnicity.50 The goal of these requirements was to help employers, the public, and the government identify and remedy gender and racial/ethnic pay inequities. But the Trump administration has put them on hold.51

By putting the equal pay data collection requirements on hold, the Trump administration is making it harder for employers and federal agencies to identify pay disparities and root out employment discrimination. Further, this decision ignores what the research shows—inequities have gotten worse, not better. Even among workers with the same level of education and work experience, black–white wage gaps are larger today than nearly 40 years ago52 and gender pay disparities have remained essentially unchanged for at least 15 years.53 In both cases, discrimination has been shown to be a major factor in the persistence of those gaps.

When these requirements were first announced, former EEOC Chair Jenny R. Yang stated, “Collecting pay data is a significant step forward in addressing discriminatory pay practices. This information will assist employers in evaluating their pay practices to prevent pay discrimination and strengthen enforcement of our federal anti-discrimination laws.”54 By staying these requirements, the Trump administration has shown that it does not value equal pay for equal work.

Rolling back a transparency rule that would allow workers to know when their employer has hired outside anti-union consultants during a union election

The rights of most workers to organize and bargain collectively with their employers are protected under the National Labor Relations Act (NLRA) of 1935. But when workers seek to exercise these rights, employers often hire union avoidance consultants—also known as “persuaders”—to orchestrate and roll out anti-union campaigns. Union avoidance consultants may engage with workers directly, for example, delivering their anti-union presentations in face-to-face meetings. Or they may influence workers indirectly by providing management with ammunition for campaigns, including anti-union flyers, speeches, videos, and other materials.55 The President Trump DOL has proposed rolling back an important rule (the “persuader rule”) that ensured workers would have accurate information about their employer’s use of anti-union consultants surrounding union election campaigns.56

The rule Republicans are rolling back closed a massive reporting loophole that has allowed employers to keep indirect persuader activity secret. Disclosure of the large amounts of money employers pay to anti-union consultants—sometimes hundreds of thousands of dollars—would allow workers to know whether the messages they hear are coming directly from their employer or from a paid, third-party consultant.57 Seeing how much money employers are paying out to these consultants would provide an important perspective on employers’ frequent arguments that they cannot afford to pay union wages, and it would give workers the information they need to make informed choices as they pursue their right to organize. This disclosure rule would have helped level the playing field for workers who want to join together to negotiate with their employers for better pay and working conditions.

Almost half (48 percent) of workers polled said they’d vote to create a union in their workplace tomorrow if they got the chance.58 However, the intensity with which employers have opposed organizing efforts,59 and the continuing tilt of the legal and policy playing field against workers seeking to bargain collectively, have led to a decline in union membership. DOL’s rescission of the persuader rule is just one more indicator that the Trump administration is working on behalf of corporate interests to further rig the system against working people.

Rolling back rules to modify and streamline union elections

On December 12, 2017, the National Labor Relations Board (NLRB) took the first step toward rolling back a 2014 rule that simplified the union election process by which working people can join together to bargain for better wages and working conditions. The NLRB announced the issuance of a Request for Information (RFI) asking for public input on the 2014 election rule—indicating that President Trump’s appointees to the NLRB plan to alter the rule.60 The election rule, which has been upheld by a federal court of appeals, includes a series of reforms that eliminate unnecessary delay in the election process and modernize agency procedures.

The NLRB protects the rights of most private-sector employees to join together, with or without a union, to improve their wages and working conditions. Employees covered by the National Labor Relations Act are guaranteed the right to form, join, decertify, or assist a labor organization; to bargain collectively through representatives of their own choosing; or to refrain from such activities. The NLRB’s decision to reexamine the rule demonstrates that the Republican board majority has little interest in maintaining an efficient election process for this nation’s workers.

Rolling back the Fair Pay and Safe Workplaces rule

Senate Republicans approved, and President Trump signed, a resolution that rolled back a rule requiring federal contractors to disclose workplace violations—specifically violations of federal labor laws and executive orders that address wage and hour, safety and health, collective bargaining, family medical leave, and civil rights protections.61 The rule had directed that such violations be considered when awarding federal contracts. In addition, the rule had also mandated that contractors provide each worker with written notice of basic information including wages, hours worked, overtime hours, and whether the worker is an independent contractor. Finally, the rule had prohibited contractors from requiring workers to sign predispute arbitration agreements for discrimination, harassment, or sexual assault claims.

Currently, there is no effective system to ensure that taxpayer dollars are not awarded to contractors who violate basic labor and employment laws. As a result, the federal government awards billions of dollars in contracts to companies that break the law.62 This rule would have helped ensure that federal contracts (and taxpayer dollars) are not awarded to companies with track records of labor and employment law violations. Workers, taxpayers, and law-abiding contractors would have benefited from this rule. Contractors with records of cutting corners by violating labor and employment laws will benefit from the congressional resolution blocking this rule. What’s more, by repealing this rule, the federal government will be rewarding companies that force workers to waive their rights to go to court and instead sign agreements requiring them to resolve claims of sexual harassment or discrimination in private arbitration.

Gearing up to do more damage

On May 9, the Department of Labor released its Spring Regulatory Agenda. It includes plans for repealing, weakening, or delaying a number of important protections that safeguard workers’ health and lives on the job. One in particular is a Wage and Hour Division proposal that would update the rules that limit workers under age 18 from working in occupations that are particularly hazardous or detrimental to the health or well-being of children. These rules are known as Hazardous Occupations Orders (HOs). A summary of a draft regulation obtained by Bloomberg Law showed that DOL will propose relaxing the current rules that prohibit apprentices and student learners who are under the age of 18 from receiving extended, supervised training in certain dangerous jobs.63 In other words, instead of working to safeguard the health and well-being of all workers—especially children—DOL is instead planning to propose to make it easier for 16- and 17-year-olds to work in hazardous occupations.

Conclusion

Job growth has been strong for an extended period. The labor market has added more than 2 million jobs per year in each of the last seven years—including, notably, during the period of implementation of many of the regulations that the Trump administration and congressional Republicans have abandoned or rolled back. Wage growth, on the other hand, is weak for most workers. This weak wage growth cannot, however, be pinned on regulation. Weak wage growth for most workers and rising inequality is a trend that began late in the Carter administration and worsened substantially in the Reagan-Bush years. In fact, since 1979, inflation-adjusted wages grew across the board only during a brief period late in the Clinton administration when the economy attained something close to full employment (4.1 percent unemployment on average for two full years in 1999 and 2000).64 Weak wage growth over most of the last four decades was the result of a policy onslaught to shift economic leverage away from low- and middle-wage workers. If the Trump administration and congressional Republicans were truly looking for policies to ensure that the economy delivers for all workers—and not just the already-affluent—they would not spend their time painting regulations as the problem while dismantling key worker protections. They would instead tackle policies that would actually lead to a fair economy. A document that provides a robust agenda for creating jobs, raising wages, and fixing our rigged economy is attached. It includes policies to strengthen—not gut—rules that support good jobs, restore full employment as a primary policy target, protect the basic human right of worker organization, level the playing field that trade laws and exchange rate misalignments have tilted against workers, and raise top tax rates to invest in America and restore power to the bottom 90 percent.

Attachment: “A Real Agenda for Working People: What Trump Would Do If He Were Serious about Creating Jobs, Raising Wages, and Fixing Our Rigged Economy,” Economic Policy Institute, December 2016.

Endnotes

1. Office of Management and Budget, 2016 Draft Report to Congress on the Benefits and Costs of Federal Regulations and Agency Compliance with the Unfunded Mandates Reform Act, 2016; see also Heidi Shierholz and Celine McNicholas, Understanding the Anti-Regulation Agenda: The Basics, Economic Policy Institute, April 11, 2017.

2. John Irons and Isaac Shapiro, Regulation, Employment, and the Economy: Fears of Job Loss are Overblown, Economic Policy Institute, April 12, 2011.

3. John Irons and Isaac Shapiro, Regulation, Employment, and the Economy: Fears of Job Loss are Overblown, Economic Policy Institute, April 12, 2011.

4. Josh Bivens, “Testimony before the Judiciary Subcommittee on Regulatory Reform, Commercial and Antitrust Law,” February 24, 2016; John Irons and Isaac Shapiro, Regulation, Employment, and the Economy: Fears of Job Loss Are Overblown, Economic Policy Institute, April 12, 2011.

5. U.S. Bureau of Labor Statistics, “Extended Mass Layoffs in 2012,” BLS Reports, September 2013.

6. Cary Coglianese, Adam M. Finkel, and Christopher Carrigan, eds., Does Regulation Kill Jobs? (Philadelphia: University of Pennsylvania Press, 2014).

7. Nathan Goldschlag and Alexander T. Tabarrok, “Is Regulation to Blame for the Decline in American Entrepreneurship?” George Mason University Working Paper in Economics No. 15-11, December 2014.

8. Heidi Shierholz and Celine McNicholas, Understanding the Anti-Regulation Agenda: The Basics, Economic Policy Institute, April 11, 2017.

9. Heidi Shierholz and Celine McNicholas, Understanding the Anti-Regulation Agenda: The Basics, Economic Policy Institute, April 11, 2017, citing Christopher Cox, testimony before the House Committee on Oversight and Government Reform, October 23, 2008.

10. White House Office of the Press Secretary, “Presidential Executive Order on Reducing Regulation and Controlling Regulatory Costs,” January 30, 2017; Economic Policy Institute, “Executive Order on Reducing Regulation and Controlling Regulatory Costs: EO 13771,” Policy Watch (Perkins Project on Worker Rights and Wages), January 30, 2017.

11. Office of Information and Regulatory Affairs, Office of Management and Budget, Executive Office of the President, “Regulatory Reform: Two-for-One and Regulatory Cost Caps,” accessed January 25, 2018, at www.reginfo.gov/public/do/eAgendaEO13771.

12. Eric Lipton and Jasmine C. Lee, “Which Obama-Era Rules Are Being Reversed in the President Trump Era,” New York Times, May 18, 2017. A CRA resolution either blocks a rule from taking effect or, if the rule has already taken effect, it prohibits the rule from continuing to be in effect. It also blocks any agency from issuing a new rule in “substantially the same form” as the disapproved rule—thus limiting options for restoring lost protections. (Technically, a disapproved rule could be reissued if Congress passed a bill specifically authorizing an agency to reissue the rule, but this is unlikely.)

13. Stuart Shapiro, “The Congressional Review Act, Rarely Used and (Almost Always) Unsuccessful,” The Hill, April 17, 2015; Eric Lipton and Jasmine C. Lee, “Which Obama-Era Rules Are Being Reversed in the President Trump Era,” New York Times, May 18, 2017.

14. Many of the examples and descriptions provided here come from Celine McNicholas, Heidi Shierholz, and Marni von Wilpert, Workers’ Health, Safety, and Pay are among the Casualties of Trump’s War on Regulations: A Deregulation Year in Review, Economic Policy institute, January 29, 2018.

15. H.J. Res. 83, 115th Congress (2017); PL 115-21.

16. As noted on the informational page about the May 2016 final rule on OSHA’s website, “Behavioral economics tells us that making injury information publicly available will ‘nudge’ employers to focus on safety” (U.S. Department of Labor, Occupational Safety and Health Administration, “Final Rule Issued to Improve Tracking of Workplace Injuries and Illnesses” [web page], accessed January 25, 2018, at www.osha.gov/recordkeeping/finalrule). For the full text of the May 2016 rule, see Improve Tracking of Workplace Injuries and Illnesses, 81 Fed. Reg. 29624 (May 12, 2016).

17. On June 27, 2017, OSHA proposed to push back the compliance date to December 1, 2017. On November 22, 2017, OSHA announced a further delay, to December 15, 2017. Finally, on December 18, 2017, OSHA announced that it would “not take enforcement action against those employers who submit their reports after the December 15, 2017, deadline but before December 31, 2017, final entry date.” See U.S. Department of Labor, Occupational Safety and Health Administration, “US Labor Department’s OSHA Proposes to Delay Compliance Date for Electronically Submitting Injury, Illness Reports” [news release], June 27, 2017; U.S. Department of Labor, Occupational Safety and Health Administration, “U.S. Department of Labor’s OSHA Extends Compliance Date for Electronically Submitting Injury, Illness Reports to December 15, 2017” [news release], November 22, 2017; U.S. Department of Labor, Occupational Safety and Health Administration, “U.S. Labor Department’s OSHA Accepting Electronically Submitted Injury, Illness Reports through December 31” [trade release], December 18, 2017.

18. U.S. Department of Labor, Occupational Safety and Health Administration, “U.S. Department of Labor’s OSHA Extends Compliance Date for Electronically Submitting Injury, Illness Reports to December 15, 2017” [news release], November 22, 2017; Improve Tracking of Workplace Injuries and Illnesses: Delay of Compliance Date, 82 Fed. Reg. 55761 (November 24, 2017).

19. U.S. Department of Labor, Bureau of Labor Statistics, “National Census of Fatal Occupational Injuries in 2016” [news release], December 19, 2017.

20. Occupational Exposure to Beryllium, 82 Fed. Reg. 2470 (January 9, 2017).

21. Occupational Exposure to Beryllium and Beryllium Compounds in Construction and Shipyard Sectors, 82 Fed. Reg. 29182 (June 27, 2017).

22. U.S. Department of Labor, Occupational Safety and Health Administration, “US Labor Department’s OSHA Publishes Proposed Rule on Beryllium Exposure” [news release], June 23, 2017.

23. U.S. Department of Labor, Occupational Safety and Health Administration, “Final Rule to Protect Workers from Beryllium Exposure” [web page], accessed January 25, 2018, at www.osha.gov/berylliumrule/index.html.

24. Jordan Barab, “OSHA Launches Rollback of Beryllium Worker Protections,” Confined Space Blog, June 23, 2017.

25. Deborah Berkowitz and Hooman Hedayati, OSHA Severe Injury Data from 29 States: 27 Workers a Day Suffer Amputation or Hospitalization; Poultry Processing Among Most Dangerous Industries, National Employment Law Project, April 2017

26. U.S. Bureau of Labor Statistics, “Table 1. Incidence Rates of Nonfatal Occupational Injuries and Illnesses by Industry and Case Types, 2016” and “Table SNR08. Incidence Rates of Nonfatal Occupational Illness, by Industry and Category of Illness, 2016,” Employer-Reported Workplace Injuries and Illnesses (Annual), last modified November 9, 2017.

27. Heidi Shierholz and Marni von Wilpert. “EPI Comment on the Modernization of Swine Slaughter Inspection Rule.” Economic Policy Institute. May 2, 2018.

28. Pesticides; Agricultural Worker Protection Standard; Reconsideration of Several Requirements and Notice About Compliance Dates, 82 Fed. Reg. 60576 (December 21, 2017).

29. National Safety Council, “EPA Proposes ‘Commonsense’ Changes to Protect Farmworkers from Pesticides,” Safety+Health, February 21, 2014; 40 CFR 170.

30. United States Environmental Protection Agency, “Agricultural Worker Protection Standard” [web page], accessed January 25, 2018, at www.epa.gov/pesticide-worker-safety/agricultural-worker-protection-standard-wps.

31. According to Pesticides; Agricultural Worker Protection Standard Revisions, 80 Fed. Reg. 67495 (November 2, 2015), “EPA estimates that about 1,810 to 2,950 acute pesticide exposure incidents occur annually on agricultural establishments.”

32. Penn State College of Agricultural Sciences, Potential Health Effects of Pesticides, November 6, 2017; National Institutes of Health, “NIH Study Finds Two Pesticides Associated with Parkinson’s Disease” [news release], February 11, 2011.

33. Heidi Shierholz, David Cooper, Julia Wolfe, and Ben Zipperer. Women Would Lose $4.6 Billion in Earned Tips if the Administration’s ‘Tip Stealing’ Rule is Finalized: Overall, Workers Would Lose $5.8 billion. Economic Policy Institute, January 17, 2018.

34. Ben Penn, “Labor Dept. Ditches Data Showing Bosses Could Skim Waiters’ Tips,” Bloomberg Law, Daily Labor Reports, February 1, 2018.

35. Ben Penn, “Mulvaney, Acosta Override Regulatory Office to Hide Tips Rule Data,” Bloomberg Law, Daily Labor Reports, March 21, 2018.

36. U.S. Department of Labor Wage and Hour Division, “Final Rule: Overtime. Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees under the Fair Labor Standards Act” [informational web page], accessed January 26, 2018, at www.dol.gov/whd/overtime/final2016.

37. Ross Eisenbrey and Will Kimball, The New Overtime Rule Will Directly Benefit 12.5 Million Working People: Who They Are and Where They Live, Economic Policy Institute, May 17, 2016.

38. Celine McNicholas, Samantha Sanders, and Heidi Shierholz, What’s at Stake in the States if the 2016 Federal Raise to the Overtime Pay Threshold Is Not Preserved—and What States Can Do about It, Economic Policy Institute, November 15, 2017.

39. Celine McNicholas, Samantha Sanders, and Heidi Shierholz, What’s at Stake in the States if the 2016 Federal Raise to the Overtime Pay Threshold Is Not Preserved—and What States Can Do about It, Economic Policy Institute, November 15, 2017.

40. In November 2016, the United States District Court for the Eastern District of Texas, Sherman Division, issued a preliminary nationwide injunction blocking the rule from taking effect. In December 2016 the Department of Justice, on behalf of the Department of Labor, filed a notice with the U.S. Circuit Court of Appeals for the Fifth Circuit to appeal the preliminary injunction. In August 2017, the United States District Court for the Eastern District of Texas issued a final ruling concluding that the overtime rule was invalid, rendering Justice’s 2016 appeal moot. On October 30, 2017, the Department of Justice, on behalf of the Department of Labor, filed a notice to appeal the judge’s decision as part of a process under which the Trump administration DOL will undertake its own rulemaking to determine a new salary threshold (see U.S. Department of Labor, “Department of Labor Provides Update on Overtime” [news release], October 30, 2017).

41. Savings Arrangements Established by Qualified State Political Subdivisions for Non-Governmental Employees, 81 Fed. Reg. 92639 (December 20, 2016).

42. United States Government Accountability Office, Retirement Security: Federal Action Could Help State Efforts to Expand Private Sector Coverage, September 2015.

43. David John and Gary Koenig, Fact Sheet: Workplace Retirement Plans Will Help Workers Build Economic Security, AARP Public Policy Institute, October 2014; Anqi Chen and Alicia H. Munnell, Who Contributes to Individual Retirement Accounts? Center for Retirement Research at Boston College, Issue in Brief no. 17-8, April 2017.

44. White House Office of the Press Secretary, “Presidential Memorandum on Fiduciary Duty Rule,” February 3, 2017.

45. Heidi Shierholz and Ben Zipperer, “Here Is What’s At Stake with the Conflict of Interest (‘Fiduciary’) Rule,” Economic Policy Institute, May 30, 2017.

46. Heidi Shierholz. “The Trump Administration’s Attempt to Dismantle the Fiduciary Rule: A Year in Review,” Working Economics (Economic Policy Institute blog), February 2, 2018.

47. Robert Steyer, “DOL Says It Won’t Enforce Fiduciary Rule Pending Review After Appeals Court Strikes It Down,” Pensions & Investments, March 16, 2018.

48. H.J. Res. 42, 115th Congress (2017); PL 115-17.

49. Federal-State Unemployment Compensation Program; Middle Class Tax Relief and Job Creation Act of 2012 Provision on Establishing Appropriate Occupations for Drug Testing of Unemployment Compensation Applicants, 81 Fed. Reg. 50298 (August 1, 2016).

50. U.S. Equal Employment Opportunity Commission, “EEOC to Collect Summary Pay Data” [press release], September 29, 2016.

51. U.S. Equal Employment Opportunity Commission, “What You Should Know: Statement of Acting Chair Victoria A. Lipnic about OMB Decision on EEO-1 Pay Data Collection” [web page], accessed January 25, 2018, at www.eeoc.gov/eeoc/newsroom/wysk/eeo1-pay-data.cfm.

52. Valerie Wilson and William M. Rodgers III, Black–White Wage Gaps Expand with Rising Wage Inequality, Economic Policy Institute, September 20, 2016.

53. Elise Gould, Jessica Schieder, and Kathleen Geier, What Is the Gender Pay Gap and Is It Real?: The Complete Guide to How Women Are Paid Less Than Men and Why It Can’t Be Explained Away, Economic Policy Institute, October 20, 2016.

54. U.S. Equal Employment Opportunity Commission, “EEOC to Collect Summary Pay Data” [press release], September 29, 2016.

55. U.S. House of Representatives, Education and Workforce Committee, Minority Views: H.J. Res. 87, Providing for Congressional Disapproval under Chapter 8 of Title 5, United States Code, of the Final Rule of the Department of Labor relating to “Interpretation of the ‘Advice’ Exemption in Section 203(c) of the Labor-Management Reporting and Disclosure Act.” 114th Congress, Second Session, September 9, 2016.

56. Rescission of Rule Interpreting “Advice” Exemption in Section 203(c) of the Labor-Management Reporting and Disclosure Act, 82 Fed. Reg. 26877 (June 12, 2017).

57. Marni von Wilpert, “Union Busters Are More Prevalent Than They Seem, and May Soon Even Be at the NLRB,” Working Economics (Economic Policy Institute blog), May 1, 2017.

58. Josh Bivens et al., How Today’s Unions Help Working People, Economic Policy Institute, August 24, 2017.

59. Kate Bronfenbrenner, No Holds Barred—The Intensification of Employer Opposition to Organizing, Economic Policy Institute Briefing Paper no. 235, May 20, 2009.

60. National Labor Relations Board, Office of Public Affairs, “Request for Information Regarding Representation Election Regulations” [announcement], December 12, 2017; Representation-Case Procedures, 82 Fed. Reg. 58783 (December 14, 2017).

61. H.J. Res. 37, 115th Congress (2017); PL 115-11.

62. Office of Senator Elizabeth Warren, Breach of Contract: How Federal Contractors Fail American Workers on the Taxpayer’s Dime, 2017.

63. Ben Penn, “Trump Administration Wants to Train Teens in ‘Hazardous’ Jobs.” Bloomgberg Law, Daily Labor Reports, May 8, 2018.

64. Lawrence Mishel, Josh Bivens, Elise Gould, and Heidi Shierholz, The State of Working America, 12th Edition, Economic Policy Institute and Cornell University Press, 2012.

At first blush, these appear to be positive, albeit incremental, steps. In fact, their purpose is not to protect investors, but to present an alternative to the much stronger protections in a Department of Labor (DOL) rule that requires financial professional offering investment advice to retirement savers to adhere to a fiduciary standard. While the DOL rule remains in place for the time being, the Trump administration has delayed its full implementation and enforcement, and it has been challenged in court by financial industry players. EPI has estimated that these delays will cost investors $18.5 billion in higher fees and lower net returns over the next 30 years.

The SEC’s proposed “best interest” standard, which to unsuspecting investors may sound similar to the DOL’s fiduciary standard, is in fact much weaker. Though it would prohibit brokers and other financial professionals from steering clients toward clearly unsuitable investments, financial professionals are already prohibited from doing so under current rules. While these rules prevent brokers from—say—recommending highly risky investments to risk-averse clients, they don’t prevent them from promoting higher-cost but “suitable” investments when similar lower-cost investments are available.

The SEC proposals, unlike the DOL rule, do not prohibit commissions and other forms of compensation that create conflicts of interest between financial professionals offering advice and their clients. Though some egregious practices may be curbed, the practical impact of the SEC proposals is unclear because the Commission does not define “best interest.” If anything, dissenting Commissioner Kara Stein says the proposed regulations appear designed to provide financial professionals with guidelines on how to adhere to the letter of the law with written disclosures, policies, and procedures—but no meaningful changes to actual practices. Moreover, enforcement is likely to be weak, because investors would not be able to sue brokers for violating the “best interest” standard, but would only have recourse to private arbitration under the auspices of the Financial Industry Regulatory Authority (FINRA), an industry-funded body. As Commissioner Stein put it, a better name for these proposals is “Regulation Status Quo.”

This commonsense rule has survived repeated court challenges, but special interests with deep pockets can persevere until they get the result they want. All this proves is how much conflicted advice contributes to Wall Street profits at the expense of retirement savers.

The plaintiffs, who represent the financial industry, claim that the court’s legally flawed decision will preserve access to low-cost financial advice. But what they are clearly hoping won’t be noticed is that bad advice is worse than no advice.

Every month the rule is vacated in the Fifth Circuit (Louisiana, Mississippi, and Texas), retirement savers in those states will lose $133.8 million over the next 30 years due to the lasting effects of receiving conflicted advice (that is $16.9 million in Louisiana, $6.0 million in Mississippi, and $110.9 million in Texas). If the same faulty analysis applied nationwide (though no other courts have adopted it), every month the rule is vacated will result in retirement savers nationally losing $1.9 billion over the next 30 years.

The rule was exhaustively researched and painstakingly drafted by the Department of Labor to address losses incurred by workers saving for retirement who are steered to higher-cost or underperforming investments by financial professional presenting themselves as disinterested advisers. The rule prohibits common practices such as steering clients toward investments that pay the adviser a commission but provide the client a lower rate of return. Such conflicted advice caused enormous losses for workers saving for retirement.

If fully implemented, the fiduciary rule would require that financial professionals presenting themselves as investment advisers act in their clients’ best interests. The rule is needed because “conflicted” advice leads to lower investment returns, causing real losses for workers saving for retirement—an estimated $17 billion a year—for the clients who are victimized. The rule would prohibit common practices such as steering clients toward investments that pay the adviser a commission but provide the client a lower rate of return. It was exhaustively researched by the Department of Labor and debated over several years, survived several court challenges, and was completed in 2016. It was supposed to be implemented on April 10, 2017.

However, unscrupulous players in the financial industry are working to kill the rule so they can continue fleecing retirement savers—and the Trump administration is doing everything it can to help them out. Here’s the rundown of the fiduciary rule shenanigans from Trump’s first year:

February 3, 2017: President Trump issues a Presidential Memorandum ordering the Labor Department to needlessly reexamine the fiduciary rule.

April 4, 2017: DOL announces a 60-day delay of the implementation of the rule, from April 10, 2017 to June 9, 2017. Retirement investors who get bad advice during the delay will face lasting consequences. We estimated that the delay would cost retirement savers $3.7 billion over the next 30 years.

June 1, 2017: Meanwhile, the Securities and Exchange Commission announced that it was considering regulations that could, in theory, protect a larger group of investors—not just those saving in tax-favored retirement accounts—from conflicted investment advice. Since the SEC has historically been reluctant to reign in unscrupulous industry practices, and since it does not have authority to regulate insurance products or people advising retirement plan sponsors (as DOL does under the fiduciary rule), its belated involvement was not cheered by consumer advocates.

June 9, 2017: Finding no legal excuse to change or rescind it, major provisions of the fiduciary rule were implemented, but important compliance provisions built into the rule’s exemptions were delayed until January 1, 2018, and DOL made clear that it would not enforce the rule until then. We estimate that the additional delay in the enforcement provisions will cost retirement savers $3.9 billion over the next 30 years.

July 6, 2017: DOL published a Request for Information, seeking public input on further delaying the date at which the rule becomes fully applicable beyond January 1, 2018. It also sought information that “could form the basis of new exemptions or changes/revisions to the rule.” In other words, DOL was searching for justification to further delay full implementation of the current rule to give them time to propose a new, weaker rule.

November 27, 2017: DOL published a further 18-month “delay” of key provisions of the fiduciary rule, a move that we estimate will cost workers saving for retirement $10.9 billion over the next 30 years. And notably, the word “delay” is used loosely here, since the rule is being delayed with the clear intent of never fully implementing it. Instead, the Trump administration is simply buying time until they can publish a weaker more industry-friendly rule.

All told, we estimate that these delays will cost retirement savers $18.5 billion over 30 years. And as noted above, the Trump administration is clearly planning to further dismantle or weaken the fiduciary rule through the rulemaking process at DOL and the SEC. The administration’s willingness to dismantle a rule that would enhance the retirement security of American workers is a testament to how far they are willing to go to serve unscrupulous elements within the financial industry who want to keep bilking workers saving for retirement.

On December 14, 2017, President Trump held a press conference to take credit for the “most far-reaching regulatory reform in history,” claiming his administration has been responsible for more than 1,500 cancelled or delayed regulatory actions.1 He is expected to tout this number again at his upcoming State of the Union address to Congress. While the specific figure Trump cited at the press conference has been called into question, there is no disputing that Trump and congressional Republicans have engaged in an unprecedented attack on regulations over the last year, rolling back rules that were intended to protect workers, consumers, and public health.

The Economic Policy Institute’s Perkins Project on Worker Rights and Wages has been tracking Trump and Congress’s decimation of federal labor standards through deregulation since January 2017.2 Regulations play an essential role in protecting workers—ensuring safe workplaces and fair pay and protecting workers’ rights to organize and join a union so they can bargain collectively with their employers. But not only do regulations provide essential protections; research shows that federal regulations in fact provide an overall net benefit to the economy—contrary to what its opponents would have people believe.

In this report, we review what the research says about the benefits of regulations, and we shine a spotlight on Trump and Congress’s most egregious deregulatory actions—actions that advantage corporate interests and those at the top of the income distribution at the expense of low- and middle-income workers.

The facts about regulation

Regulations put laws into action, protecting America’s workers

Regulations are simply the rules of the game. Congress passes laws, and then federal agencies set the rules for how those laws are followed. For example, if Congress passes a law directing the Occupational Safety and Health Administration (OSHA) to ensure “safe and healthful working conditions” in America’s workplaces, OSHA responds by promulgating specific rules that employers must follow in order to establish safe and healthful workplaces for their employees.

Regulations not only provide essential protections, but their economic benefits generally outweigh their costs

Opponents of regulations routinely emphasize the costs associated with regulations while ignoring their benefits. Rhetoric attacking regulations generally alleges that regulations are overly burdensome for employers and cost jobs. However, research shows that federal regulations in fact provide an overall net benefit to the economy and that they have a modestly positive or neutral effect on employment.

Federal regulations currently provide a net benefit to society of over $100 billion per year

To assess whether a regulation should be undertaken, agencies consider a comprehensive set of benefits and costs over a broad time horizon. For example, regulations establishing workplace safety standards save lives, and environmental protection regulations conserve natural resources and improve public health, which may provide benefits for generations. Safety regulations may require substantial upfront investments in safety equipment, but those investments pay off over the long term through a reduction in illnesses like lung cancer and through lives saved over decades. In addition, the need for the safety equipment creates jobs for the people producing the equipment.

Each year the Office of Management and Budget (OMB) reports to Congress on the costs and benefits of federal regulations, with a focus on regulations for which agencies are able to estimate and monetize both costs and benefits. In its most recent report, OMB found that during the last administration, from January 21, 2009, to September 20, 2015, the estimated annual net benefit (benefits minus costs) of major federal regulations was between $103 and $393 billion.3 In other words, federal regulations are providing a net benefit to society of over $100 billion per year. And these numbers are consistent with prior OMB reports, as described below.

The ratio of benefits to costs is about 7 to 1

OMB reviewed major regulations from 2000 to 2010 and estimated that the average annual benefit of major regulations is about seven times the cost.4 OMB’s findings are even more significant when you consider studies showing that government regulators generally overestimate costs.5 Also, many benefits are never monetized, but almost all costs are.

Regulations have a modestly positive or neutral effect on employment

Research on the relationship between employment and regulations generally finds that regulations have a modestly positive or neutral effect on employment.6

How do regulations create jobs? When regulations reduce jobs in one area, they create jobs in another. For example, factories making lead paint shut down after regulations banning lead paint were issued in the late 1970s, but enterprises manufacturing lead-free alternatives arose in their place. And some of the older factories hired people to retool their machinery to begin manufacturing lead-free paint.

Mass layoffs are not caused by regulations, but lack of regulations can lead to job loss

“Mass layoff events” are incidents in which at least 50 unemployment insurance claims are filed against an employer during a five-week period. According to the latest data available (2011 and 2012), employers cite regulations as the reason for mass layoffs in just a tiny share of mass layoff events—one-quarter of one percent.7

On the other hand, the lack of sensible regulations can lead to economic catastrophe and the loss of millions of jobs. The belief that financial markets can “self-regulate” led to a wave of deregulation and lax enforcement beginning in the late 1970s and persisting right up to the financial crisis that precipitated the Great Recession of 2007–2009. Deregulation and lax enforcement played a major role in the housing bubble and the financial and economic crisis that ensued when the bubble burst.8 Nearly nine million jobs were lost in 2008 and 2009. In the wake of this crisis, officials in charge of the nation’s two main financial regulatory agencies stated that self-regulation had failed. As Christopher Cox, then-chairman of the Securities and Exchange Commission, stated, “We have learned that voluntary regulation does not work. . . . The lessons of the credit crisis all point to the need for strong and effective regulation.”9

Trump’s year of deregulation

Aside from a tax measure that overwhelmingly favored the wealthy, the first year of the Trump administration and the Republican-controlled Congress saw little in the way of substantive legislative accomplishments. However, the Trump administration and congressional Republicans have been successful in repealing many existing regulations and making it more difficult for government agencies to effectively regulate industries. One of Trump’s first actions after taking office was to issue an executive order requiring federal agencies to identify at least two existing regulations to “repeal” when proposing a new regulation.10 In December, Trump boasted that his administration had exceeded that goal, repealing 22 regulations for every new regulation proposed.11 While these claims have not been verified, the Trump administration’s Office of Information and Regulatory Affairs has reported that federal agencies have issued 67 deregulatory actions and 3 regulatory actions during fiscal year 2017;12 it has also reported that a total of 1,579 regulations were withdrawn or delayed (635 withdrawn, 244 “made inactive,” and 700 “added to the Long Term list”).13

Congressional Republicans have been instrumental in supporting this deregulatory effort. In the first 90 days of the congressional session, the House and Senate used Congressional Review Act (CRA) resolutions—which provide for a quick process to overrule recent regulations—to overturn 14 Obama-era rules.14 Prior to the 115th Congress, the CRA had only been successfully used to repeal a rule once, in 1996.15

An examination of the regulations repealed or rescinded reveals that many of the rules that were eliminated provided important protections to our nation’s workers. President Trump and congressional Republicans have blocked regulations that protect workers’ pay, safety, and rights to organize and join a union. By blocking these rules, the president and Congress are raising the risks for workers while rewarding companies that put their employees’ health, safety, and paychecks at risk.

This section lists the casualties of Trump’s war on regulations.

Deregulation casualty #1: Workers’ health and safety

Rolling back a rule that required employers to keep accurate records of workplace injuries and illnesses

Congressional Republicans approved and President Trump signed a Congressional Review Act resolution blocking the Workplace Injury and Illness recordkeeping rule, which clarifies an employer’s obligation under the Occupational Safety and Health Act to maintain accurate records of workplace injuries and illnesses.16

Recordkeeping is about more than paperwork. If an employee is injured on the job (for example, is cut or burned, or suffers an amputation), contracts a job-related illness, or is killed in an accident on the job, then it is the employer’s duty to record the incident and work with the Occupational Safety and Health Administration to investigate what happened. Failure to keep injury/illness records means that employers, OSHA, and workers cannot learn from past mistakes and makes it harder to prevent the same tragedies from happening to others. By signing the resolution to block this rule, Trump gave employers a get-out-of-jail-free card when they fail to maintain—or when they falsify—their injury/illness logs. Workers who could have been saved from preventable accidents on the job will have to pay the price with their health or even their lives.

The history of the rule is as follows: Since the early 1970s, the Occupational Safety and Health Administration has required many employers to keep careful records of workplace injuries and illnesses and to maintain those records for five years. If an employer’s injury/illness logs are inaccurate—for example, if a worker is injured on the job and the employer fails to log it—OSHA can issue a citation and fine.

For 40 years, from the early 1970s through 2012, OSHA had been able to issue those citations at any time within the five-year period that the illness/injury record was required to be kept. But in 2012, the D.C. Circuit Court of Appeals ruled that, if a worker was injured, OSHA had only six months to check an employer’s log to make sure the injury was recorded and to issue a citation if it was not.17 That meant that even though employers are supposed to maintain injury/illness records for five years, an employer is off the hook if OSHA inspectors do not catch the employer’s record omission within the first six months after the injury. Since OSHA inspections generally take longer than six months, the court’s ruling made it a lot harder for OSHA to penalize companies for bad recordkeeping. One of the judges on the court, though, wrote that OSHA could issue a new rule clarifying employers’ recordkeeping duties.

In response, OSHA promulgated a rule to allow OSHA to resume what it had already been doing for 40 years: cite employers for failure to log injuries/illnesses anytime within the entire five-year period that the records must be kept.18 This rule created no new recordkeeping requirements for employers; it just allowed OSHA more time to do its work to ensure that employers are held accountable for protecting workers’ health and safety.

Delaying a rule requiring employers submit injury and illness records electronically to OSHA

OSHA’s electronic recordkeeping rule is an important supplement to the recordkeeping rule described above. The Obama-era rule does not create any new reporting requirements for employers—it simply requires employers who are currently required to keep OSHA injury and illness records to submit their records to OSHA electronically, making them publicly available. Improving data collection and dissemination of injury and illness incidents in America’s workplaces will allow OSHA, employers, employees, employee representatives, other government agencies, and researchers to identify patterns so that workplace hazards can be addressed and worker injuries and illnesses prevented. And because this information will be easily accessible to a broad audience on OSHA’s website, employers are more likely to comply with workplace safety rules to protect their workers—knowing that they’ll have to answer to the public if they don’t.19

According to the final rule, employers covered by the rule were required to submit their 2016 records electronically by July 1, 2017. But delays by OSHA pushed back the compliance date to December 2017, nearly six months after the original date.20 Most troubling, though, was OSHA’s November 2017 announcement that it intends to “reconsider, revise, or remove portions of that rule in 2018.”21

In 2016 alone, well over 5,000 workers died on the job.22 If OSHA rescinds or weakens this rule in 2018, it will mean that patterns of unsafe working conditions may be harder to detect, making workplaces even more dangerous for workers.

Delaying a rule protecting workers from exposure to harmful silica dust

After delaying enforcement for months, the Department of Labor announced in September 2017 that it would begin enforcing a rule to protect construction workers from occupational exposure to crystalline silica; however, enforcement of provisions protecting general industry and maritime workers will not begin until June 2018.23 This Obama administration rule lowered workers’ permissible exposure limit to deadly crystalline silica dust. The rule is made up of two permissible exposure standards, one for construction and one for general industry and maritime. The rule became effective June 23, 2016, and enforcement was originally scheduled to begin on June 23, 2017, but was delayed by the Trump administration. OSHA began enforcing most provisions of the standard for construction on September 23, 2017, and has announced that it will begin enforcing most provisions of the standard for general industry and maritime on June 23, 2018.

OSHA issued this rule to reduce workers’ exposure to cancer-causing respirable crystalline silica. Studies have linked exposure to silica to lung cancer, silicosis, chronic obstructive pulmonary disease, and kidney disease. About 2.3 million workers are exposed to respirable crystalline silica in their workplaces, including 2 million construction workers who drill, cut, crush, or grind silica-containing materials such as concrete and stone.24 Responsible employers have been protecting workers from harmful exposure to silica for years, using widely available equipment that controls silica dust with a simple water spray to wet the dust down or a vacuum system to contain the dust. OSHA estimates that the rule will save over 600 lives and prevent more than 900 new cases of silicosis each year, once its effects are fully realized.25 It is past time for the Trump administration to start taking workers’ sides by enforcing this rule to protect working people’s lives and livelihoods.

Rolling back protections for workers exposed to beryllium

On January 9, 2017, the Occupational Safety and Health Administration published its final rule on occupational exposure to beryllium and beryllium compounds, which was promulgated to protect employees exposed to beryllium from significant risks of chronic beryllium disease and lung cancer.26 Under the Trump administration, OSHA proposed to rescind provisions of the rule intended to protect workers in the construction and shipyards sectors.27 DOL announced that OSHA will not enforce these January 9, 2017, shipyard and construction standards until further notice while this new rulemaking is underway.28

About 62,000 workers are exposed to beryllium in their workplaces, including approximately 11,500 construction and shipyard workers.29 The Trump administration’s proposal would rescind important protections in the new rule, which was issued after decades of effort and study that uncovered overwhelming evidence that OSHA’s 35-year-old beryllium standard did not protect workers from severe lung disease and lung cancer.30 Under Trump’s proposal, employers would no longer have to measure beryllium levels or provide medical testing to workers at risk of fatal lung disease. This proposal is another example of Trump’s willingness to abandon workers’ rights to come home safe and healthy at the end of the day, in favor of corporate profits.

Proposing to weaken the inspection rule for metal and nonmetal mines

In September 2017, the Trump DOL’s Mine Safety and Health Administration (MSHA) proposed to weaken metal/nonmetal mine safety inspection requirements that went into effect at the end of January 2017. Under the Obama-era rule, mine safety inspectors were allowed to conduct a safety examination at any time, including during the mineworkers’ shifts, which allows inspectors to spot unsafe practices and stop them before someone gets hurt. But in response to pressure from mine operators, Trump’s appointees have issued a proposed rule that would permit a mine safety inspection to occur only before or right as workers are beginning their shift in the mine.31

The proposed rule puts workers in danger and allows unscrupulous mine operators to conceal safety hazards. If mine safety inspectors are only permitted to evaluate a mine before or at the beginning of a shift, the safety inspectors will never discover unsafe working conditions or unsafe mining procedures that occur during the shifts themselves. A mine operator could easily tell his employees to wait until after the inspection at the beginning of the shift before commencing unsafe mining practices for the remainder of their workday.

In addition, the Obama-era rule required mine operators to record all hazardous conditions found by inspectors, even if they are immediately corrected. Under the Trump administration’s proposed rule, only hazardous conditions that are not immediately corrected would have to be recorded. This would significantly cut down on the evidence and documentation needed by MSHA, workers, and mine operators to identify and fix patterns of unsafe mining practices.

This proposal to prohibit mine safety inspectors from performing critical workplace examinations means more miners will be exposed to unsafe work conditions. From January 2010 through mid-December 2015, 122 miners were killed in 110 accidents at metal and nonmetal mines.32 Another 16 died in 2016,33 and another 13 died in 2017.34

Considering a proposal to increase poultry line speeds, endangering workers

The Trump Department of Agriculture has indicated that it is open to relaxing existing regulations of line speeds in poultry plants, placing poultry slaughter and processing workers at increased risk of injury, illness, or death.35 Regulations issued in 2014 stated that line speeds in poultry plants should not increase beyond the already fast rate of 140 birds per minute.36 Under existing regulations, the poultry industry’s own data show that poultry workers are injured at twice the rate of the national average. And these statistics likely undercount the number of injuries. The USDA itself has recognized “systemic underreporting of work-related injuries and illnesses” that makes it difficult to accurately evaluate the extent to which poultry workers suffer injuries.37 Regardless, it is clear that poultry workers face great risk in their jobs and that increasing line speeds would only increase those risks.

Proposing to weaken protections for farmworkers

The Trump Environmental Protection Agency proposed weakening regulations protecting farmworkers from harmful effects of pesticide exposure.38 The regulations prohibit workers younger than 18 from handling pesticides, require that other workers receive annual safety training on handling pesticides, and require employers to post warning signs around pesticide-treated areas.39 The EPA proposed these standards in 2014, and many of the protections have already gone into effect.40 The EPA itself has estimated that roughly 2,000–3,000 cases of acute pesticide exposure occur among farmworkers every year,41 with health effects ranging from rashes, nausea, blisters, and respiratory issues to Parkinson’s disease.42 Rolling back these standards exposes farmworkers to additional risks of illness and death.

Deregulation casualty #2: Workers’ wages

Proposing to make it legal for employers to take workers’ hard-earned tips

On December 5, the Trump administration took its first major step toward allowing employers to legally take tips earned by their employees. The current restrictions on “tip pooling,” instituted by the Department of Labor in 2011, allow restaurants to pool the tips servers receive but stipulate that the employer may only share pooled tips with other workers who customarily receive tips, such as bussers and bartenders.43 Employers are prohibited from retaining any of the pooled tips themselves. But the Trump Department of Labor has proposed rescinding those restrictions.44

At first glance, the proposed rule seems benevolent: restaurants would be able to pool the tips servers receive and share them with untipped employees, such as cooks and dishwashers, in addition to tipped employees. But, crucially, the new rule would mean that employers are not required to distribute pooled tips among their workers: as long as tipped workers earn at least the minimum wage, the employer can legally pocket their tips. And basic economic logic dictates that it is highly unlikely that back-of-the-house workers will get more pay. There is currently no limit to what these workers can be paid, so employers are already paying their nontipped workers what they need to pay to attract workers willing to work in those jobs. Thus, if employers do share some tips with them, the extra cash would likely be offset by a reduction in their base pay, leaving their take-home pay unaffected.

We estimate that under Trump’s proposed rule, employers will likely pocket $5.8 billion of their workers’ hard-earned tips each year—around $1,000 a year per tipped worker.45 And because women are both more likely to be tipped workers and to earn lower wages, this rule would disproportionately harm them. We estimate that of the $5.8 billion, nearly 80 percent—$4.6 billion—would be taken from women working in tipped jobs.46

Taking money out of workers’ pockets by weakening the overtime rule

In 2016, after years of work, the Department of Labor (DOL) updated the “overtime pay” rule, raising the salary threshold below which workers are automatically eligible for overtime pay to $47,47647 and giving 12.5 million people new or strengthened overtime protections.48 Because the threshold had not been adequately updated over the last few decades, it had eroded dramatically with inflation. The percentage of full-time salaried workers automatically eligible for overtime based on their pay dropped from more than 60 percent in 1975 to less than 7 percent in 2016.49 Prior to the 2016 rule, low-level managers at retail and fast-food outlets who made only $23,660 a year—lower than the poverty rate for a family of four—could be required to work long hours without any extra pay for the extra hours worked.50

The 2016 updated overtime pay rule would have helped ensure that middle-class Americans who work hard get a fair return on that work—putting money in people’s pockets and giving them the chance to spend more time with their families. However, the Obama administration DOL’s overdue attempt to restore lost pay to America’s workers was blocked in the courts by corporate interests, and, on October 30, 2017, the Trump administration made clear that it would not defend the rule. The Trump administration has signaled that it is going to undermine the rule, once again siding with corporate interests over workers.51

Deregulation casualty #3: Workers’ savings

Rolling back rules that made it easier for workers to save for retirement

On April 13, 2017, Trump signed two resolutions blocking DOL rules that assisted local governments that create Individual Retirement Account (IRA) programs for private-sector workers. Many municipalities have sought to establish initiatives requiring employers that do not offer a workplace retirement plan to automatically enroll workers in payroll-deduction IRAs administered by the local government. The DOL rule paved the way for these initiatives by simply clarifying that these plans are not covered by the Employee Retirement Income Security Act (ERISA), the federal law governing private-sector employer-sponsored plans, addressing localities’ concerns that they may be subject to certain liabilities under ERISA.52 The Government Accountability Office warned that such legal uncertainties could delay or deter states’ efforts to expand coverage.53

By blocking this rule, Trump blocks a path for retirement savings for the roughly 55 million private-sector wage and salary workers ages 18–64 who do not have access to retirement savings plans through their employers. Local payroll-deduction savings initiatives encourage workers to contribute to tax-favored IRAs through automatic deduction. These savings initiatives provide important assistance to workers in saving for retirement, as few workers contribute to a retirement plan outside of work. Without innovations like these, fewer workers will be able to afford retirement.54

Delaying a rule providing protections for retirement savers

The Trump administration’s Department of Labor is actively working to weaken or rescind the “fiduciary” rule.55 The latest step in these efforts is an 18-month delay of key provisions of the rule.56 The rule simply requires financial advisers to provide what most clients probably already think they are receiving: advice about their retirement plans untainted by conflicts of interest.57 It would prohibit common practices such as steering clients into investments that provide lower rates of return for the client but higher commissions for the adviser. The financial industry strongly opposes this rule because it wants to preserve a system that allows financial advisers to give their clients advice that is in the adviser’s interest rather than the client’s.

Conflicted advice leads to lower investment returns,58 causing real losses for the clients who are victimized.59 We estimate that retirement savers who will get or have gotten bad advice during the various delays imposed by the Trump administration will lose a total of $18.5 billion over the next 30 years.60 Further, the rule is being delayed with the clear intent of never fully implementing it. Instead, the Trump administration is buying time until they can permanently dismantle key elements of the rule. People who have worked hard to save for retirement need and deserve the fiduciary rule to be fully implemented and enforced.

Deregulation casualty #4: Workers’ safety nets

Rolling back a rule ensuring that unemployment workers can access earned benefits

Congressional Republicans approved and Trump signed a resolution that blocked a regulation establishing rules for drug testing applicants for unemployment insurance (UI) benefits.61 As part of the deal, states were permitted to drug test only those UI applicants who had been discharged from their last job for drug use or whose only suitable work opportunity is in a field that regularly drug tests workers. The rule directed the secretary of labor to determine which occupations regularly drug test workers. The Department of Labor issued a rule defining such “occupations” as those that are required, or may be required in the future, by state or federal law, to be drug tested.62

This rule would have clarified circumstances under which individuals filing for unemployment benefits may be subjected to drug testing. Mandatory drug testing for UI applicants is arguably unconstitutional and unnecessarily stigmatizes jobless workers. Conditioning receipt of UI benefits on this type of requirement fundamentally challenges our nation’s UI system, creating the perception that workers do not earn unemployment insurance. But workers do earn the right to unemployment insurance benefits through their prior participation in the workforce. Workers only access their earned benefits when they lose their jobs and are actively working to find new ones; this insurance is intended to help cover workers’ basic needs during this gap period between jobs. The repeal of this rule will hurt workers when they are at their most vulnerable, while benefiting companies seeking to reduce their tax obligations.

Deregulation casualty #5: Pay equity

Putting the EEO-1 pay data rule on hold

The EEO-1 pay data collection rule was an Obama-era rule intended to identify and fix pay disparities in America’s workplaces. The rule would have required large companies (with 100 or more employees) to confidentially report to the EEOC information about what they pay their employees by job category, sex, race, and ethnicity.63 The goal of this rule was to help employers, the public, and the government identify and remedy gender and racial/ethnic pay inequities. But the Trump administration has put the EEO-1 pay data collection rule on hold.64

By putting the equal pay data rule on hold, the Trump administration is making it harder for employers and federal agencies to identify pay disparities and root out employment discrimination. Further, this decision ignores what the research shows—inequities have gotten worse, not better. Even among workers with the same level of education and work experience, black–white wage gaps are larger today than nearly 40 years ago65 and gender pay disparities have remained essentially unchanged for at least 15 years.66 In both cases, discrimination has been shown to be a major factor in the persistence of those gaps.

When this rule was first announced, former EEOC Chair Jenny R. Yang stated, “Collecting pay data is a significant step forward in addressing discriminatory pay practices. This information will assist employers in evaluating their pay practices to prevent pay discrimination and strengthen enforcement of our federal anti-discrimination laws.”67 By staying this rule, the Trump administration has shown that it does not value equal pay for equal work.

Proposing to roll back an SEC rule that requires disclosure of CEO-to-employee pay ratios

The Trump administration has proposed rolling back the 2015 Securities and Exchange Commission rule requiring that public companies disclose the ratio of compensation of its chief executive officer (CEO) to the median compensation of its employees.68 The rule was mandated by the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010.69

Rolling back the rule will simply deny workers and shareholders information necessary for them to evaluate CEO compensation and performance and determine the fairness of their own compensation structure. This allows corporate interests to operate behind closed doors with less accountability to the public and to workers. CEO pay continues to be very, very high and has grown far faster in recent decades than typical worker pay. CEO compensation has risen by 807 or 937 percent (depending on how it is measured—using stock options granted or stock options realized, respectively) from 1978 to 2016. In 2016 CEOs in America’s largest firms made an average of $15.6 million in compensation, or 271 times the annual average pay of the typical worker.70

Deregulation casualty #6: Workers’ rights to organize and join a union

Rolling back a transparency rule that would allow workers to know when their employer has hired outside anti-union consultants during a union election

The rights of most workers to organize and bargain collectively with their employers are protected under the National Labor Relations Act (NLRA) of 1935. But when workers seek to exercise these rights, employers often hire union avoidance consultants—also known as “persuaders”—to orchestrate and roll out anti-union campaigns. Union avoidance consultants may engage with workers directly, for example, delivering their anti-union presentations in face-to-face meetings. Or they may influence workers indirectly by providing management with ammunition for campaigns, including anti-union flyers, speeches, videos, and other materials.71 The Trump DOL has proposed rolling back an important rule (the “persuader rule”) that ensured workers would have accurate information about their employer’s use of anti-union consultants surrounding union election campaigns.72

The rule Republicans are rolling back closed a massive reporting loophole that has allowed employers to keep indirect persuader activity secret. Disclosure of the large amounts of money employers pay to anti-union consultants—sometimes hundreds of thousands of dollars—would allow workers to know whether the messages they hear are coming directly from their employer or from a paid, third-party consultant.73 Seeing how much money employers are paying out to these consultants would provide important perspective on employers’ frequent argument that they cannot afford to pay union wages, and it would give workers the information they need to make informed choices as they pursue their right to organize. This disclosure rule would have helped level the playing field for workers who want to join together to negotiate with their employers for better pay and working conditions.

Almost half (48 percent) of workers polled said they’d vote to create a union in their workplace tomorrow if they got the chance.74 However, the intensity with which employers have opposed organizing efforts,75 and the continuing tilt of the legal and policy playing field against workers seeking to bargain collectively, have led to a decline in union membership. DOL’s rescission of the persuader rule is just one more indicator that the Trump administration is working on behalf of corporate interests to further rig the system against working people.

Rolling back rules to modify and streamline union elections

On December 12, 2017, the National Labor Relations Board (NLRB) took the first step toward rolling back a 2014 rule that simplified the union election process by which working people can join together to bargain for better wages and working conditions. The NLRB announced the issuance of a Request for Information (RFI) asking for public input on the 2014 election rule—indicating that Trump’s appointees to the NLRB plan to alter the rule.76 The election rule, which has been upheld by a federal court of appeals, includes a series of reforms that eliminate unnecessary delay in the election process and modernize agency procedures.

The NLRB protects the rights of most private-sector employees to join together, with or without a union, to improve their wages and working conditions. Employees covered by the National Labor Relations Act are guaranteed the right to form, join, decertify, or assist a labor organization; to bargain collectively through representatives of their own choosing; or to refrain from such activities. The NLRB’s decision to reexamine the rule demonstrates that the Trump board majority has little interest in maintaining an efficient election process for this nation’s workers. Ironically, the NLRB will accept electronic responses to the RFI for the election rule that, if rolled back, will affect the ability of workers to file electronic election petitions.

Deregulation casualty #7: Consequences for employers who violate workers’ rights

Rolling back the Fair Pay and Safe Workplaces rule

Senate Republicans approved a resolution that President Trump signed that rolled back a rule that required federal contractors to disclose workplace violations—specifically violations of federal labor laws and executive orders that address wage and hour, safety and health, collective bargaining, family medical leave, and civil rights protections.77 The rule had directed that such violations be considered when awarding federal contracts. In addition, the rule had also mandated that contractors provide each worker with written notice of basic information including wages, hours worked, overtime hours, and whether the worker is an independent contractor. Finally, the rule had prohibited contractors from requiring workers to sign predispute arbitration agreements for discrimination, harassment, or sexual assault claims.

Currently, there is no effective system to ensure that taxpayer dollars are not awarded to contractors who violate basic labor and employment laws. As a result, the federal government awards billions of dollars in contracts to companies that break the law.78 This rule would have helped ensure that federal contracts (and taxpayer dollars) are not awarded to companies with track records of labor and employment law violations. Workers, taxpayers, and law-abiding contractors would have benefited from this rule. Contractors with records of cutting corners by violating labor and employment laws will benefit from the congressional resolution blocking this rule. What’s more, by repealing this rule, the federal government will be rewarding companies that force workers to waive their rights to go to court and instead sign agreements requiring them to resolve claims of sexual harassment or discrimination in private arbitration.

Conclusion

Regulations establish the rules of the game and assure important protections for working people. Corporations and wealthy special interests have demonstrated that—if there’s nothing stopping them—they will do what they can to squeeze out more profits for themselves, even if it means jeopardizing workers’ health and safety and retirement funds. The Great Recession is proof that it is dangerous to assume that corporations and Wall Street will police themselves. American workers deserve a fair system—with rules that serve their interests as opposed to deregulating to rig the system so that corporate interests can rake in ever-larger profits at the expense of workers. The Trump administration and congressional Republicans have spent an enormous amount of time and political capital in their first year in control doing exactly that—by painting regulations as the “problem.” It is time to end this deception and return to defending the rules that protect workers, consumers, and public health.

Endnotes

1. White House Office of the Press Secretary, “Remarks by President Trump on Deregulation” [transcript], December 14, 2017.

2. Economic Policy Institute, Policy Watch (Perkins Project on Worker Rights and Wages), www.epi.org/policywatch.

3. Office of Management and Budget, 2016 Draft Report to Congress on the Benefits and Costs of Federal Regulations and Agency Compliance with the Unfunded Mandates Reform Act, 2016; see also Heidi Shierholz and Celine McNicholas, Understanding the Anti-Regulation Agenda: The Basics, Economic Policy Institute, April 11, 2017.

4. John Irons and Isaac Shapiro, Regulation, Employment, and the Economy: Fears of Job Loss are Overblown, Economic Policy Institute, April 12, 2011.

5. John Irons and Isaac Shapiro, Regulation, Employment, and the Economy: Fears of Job Loss are Overblown, Economic Policy Institute, April 12, 2011.

6. Josh Bivens, “Testimony before the Judiciary Subcommittee on Regulatory Reform, Commercial and Antitrust Law,” February 24, 2016; John Irons and Isaac Shapiro, Regulation, Employment, and the Economy: Fears of Job Loss Are Overblown, Economic Policy Institute, April 12, 2011.

7. U.S. Bureau of Labor Statistics, “Extended Mass Layoffs in 2012,” BLS Reports, September 2013.

8. Heidi Shierholz and Celine McNicholas, Understanding the Anti-Regulation Agenda: The Basics, Economic Policy Institute, April 11, 2017.

9. Heidi Shierholz and Celine McNicholas, Understanding the Anti-Regulation Agenda: The Basics, Economic Policy Institute, April 11, 2017, citing Christopher Cox, testimony before the House Committee on Oversight and Government Reform, October 23, 2008.

10. White House Office of the Press Secretary, “Presidential Executive Order on Reducing Regulation and Controlling Regulatory Costs,” January 30, 2017; Economic Policy Institute, “Executive Order on Reducing Regulation and Controlling Regulatory Costs: EO 13771,” Policy Watch (Perkins Project on Worker Rights and Wages), January 30, 2017.

11. White House Office of the Press Secretary, “Remarks by President Trump on Deregulation” [transcript], December 14, 2017.

12. Office of Information and Regulatory Affairs, Office of Management and Budget, Executive Office of the President, “Regulatory Reform: Two-for-One and Regulatory Cost Caps,” accessed January 25, 2018, at www.reginfo.gov/public/do/eAgendaEO13771.

13. Office of Information and Regulatory Affairs, Office of Management and Budget, Executive Office of the President, “Current Regulatory Plan and the Unified Agenda of Regulatory and Deregulatory Actions,” accessed January 25, 2018, at www.reginfo.gov/public/do/eAgendaMain.

14. Eric Lipton and Jasmine C. Lee, “Which Obama-Era Rules Are Being Reversed in the Trump Era,” New York Times, May 18, 2017. A CRA resolution either blocks a rule from taking effect or, if the rule has already taken effect, it prohibits the rule from continuing to be in effect. It also blocks any agency from issuing a new rule in “substantially the same form” as the disapproved rule—thus limiting options for restoring lost protections. (Technically, a disapproved rule could be reissued if Congress passed a bill specifically authorizing an agency to reissue the rule, but this is unlikely.)

15. Stuart Shapiro, “The Congressional Review Act, Rarely Used and (Almost Always) Unsuccessful,” The Hill, April 17, 2015; Eric Lipton and Jasmine C. Lee, “Which Obama-Era Rules Are Being Reversed in the Trump Era,” New York Times, May 18, 2017.

16. H.J. Res. 83, 115th Congress (2017); PL 115-21.

17. AKM LLC dba Volks Constructors v. Secretary of Labor, 675 F.3d 752 (D.C. Cir. 2012).

18. Clarification of Employer’s Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness, 81 Fed. Reg. 91792 (December 19, 2016).

19. As noted on the informational page about the May 2016 final rule on OSHA’s website, “Behavioral economics tells us that making injury information publicly available will ‘nudge’ employers to focus on safety” (U.S. Department of Labor, Occupational Safety and Health Administration, “Final Rule Issued to Improve Tracking of Workplace Injuries and Illnesses” [webpage], accessed January 25, 2018, at www.osha.gov/recordkeeping/finalrule). For the full text of the May 2016 rule, see Improve Tracking of Workplace Injuries and Illnesses, 81 Fed. Reg. 29624 (May 12, 2016).

20. In June 27, 2017, OSHA proposed to push back the compliance date to December 1, 2017. On November 22, 2017, OSHA announced a further delay, to December 15, 2017. Finally, on December 18, 2017, OSHA announced that it would “not take enforcement action against those employers who submit their reports after the December 15, 2017, deadline but before December 31, 2017, final entry date.” See U.S. Department of Labor, Occupational Safety and Health Administration, “US Labor Department’s OSHA Proposes to Delay Compliance Date for Electronically Submitting Injury, Illness Reports” [news release], June 27, 2017; U.S. Department of Labor, Occupational Safety and Health Administration, “U.S. Department of Labor’s OSHA Extends Compliance Date for Electronically Submitting Injury, Illness Reports to December 15, 2017” [news release], November 22, 2017; U.S. Department of Labor, Occupational Safety and Health Administration, “U.S. Labor Department’s OSHA Accepting Electronically Submitted Injury, Illness Reports through December 31” [trade release], December 18, 2017.

21. U.S. Department of Labor, Occupational Safety and Health Administration, “U.S. Department of Labor’s OSHA Extends Compliance Date for Electronically Submitting Injury, Illness Reports to December 15, 2017” [news release], November 22, 2017; Improve Tracking of Workplace Injuries and Illnesses: Delay of Compliance Date, 82 Fed. Reg. 55761 (November 24, 2017).

22. U.S. Department of Labor, Bureau of Labor Statistics, “National Census of Fatal Occupational Injuries in 2016” [news release], December 19, 2017.

23. Economic Policy Institute, “DOL Begins Enforcing Silica Rule,” Policy Watch (Perkins Project on Worker Rights and Wages), September 23, 2017.

24. U.S. Department of Labor, Occupational Safety and Health Administration, OSHA’s Proposed Crystalline Silica Rule: Overview [fact sheet], accessed January 25, 2018, at www.osha.gov/silica/factsheets/OSHA_FS-3683_Silica_Overview.html.

25. U.S. Department of Labor, Occupational Safety and Health Administration, OSHA’s Proposed Crystalline Silica Rule: Overview [fact sheet], accessed January 25, 2018, at www.osha.gov/silica/factsheets/OSHA_FS-3683_Silica_Overview.html.

26. Occupational Exposure to Beryllium, 82 Fed. Reg. 2470 (January 9, 2017).

27. Occupational Exposure to Beryllium and Beryllium Compounds in Construction and Shipyard Sectors, 82 Fed. Reg. 29182 (June 27, 2017).

28. U.S. Department of Labor, Occupational Safety and Health Administration, “US Labor Department’s OSHA Publishes Proposed Rule on Beryllium Exposure” [news release], June 23, 2017.

29. U.S. Department of Labor, Occupational Safety and Health Administration, “Final Rule to Protect Workers from Beryllium Exposure” [webpage], accessed January 25, 2018, at www.osha.gov/berylliumrule/index.html.

30. Jordan Barab, “OSHA Launches Rollback of Beryllium Worker Protections,” Confined Space Blog, June 23, 2017.

31. Examinations of Working Places in Metal and Nonmetal Mines, 82 Fed. Reg. 42757 (September 12, 2017).

32. U.S. Department of Labor, Mine Safety and Health Administration, Questions & Answers [about the proposed rule amending the final rule on examinations of working places in metal and nonmetal mines (82 Fed. Reg. 42757)], accessed January 25, 2018, at www.msha.gov/sites/default/files/Regulations/rollout-qas-q1-through-q8.pdf.

33. U.S. Department of Labor, Mine Safety and Health Administration, The Metal–Nonmetal Monitor: 2016 Fatal Accidents, January 6, 2017.

34. U.S. Department of Labor, Mine Safety and Health Administration, Preliminary Accident Reports, Fatality Alerts, and Fatal Accident Reports, accessed January 25, 2018, at arlweb.msha.gov/fatals.

35. Deborah Berkowitz, NELP Applauds GAO Report on Workplace Hazards in Meat and Poultry Industry, December 7, 2017.

36. Modernization of Poultry Slaughter Inspection; Final Rule, 79 Fed. Reg. 49566.

37. Nicole Erwin, “Too Fast for Safety? Poultry Industry Wants to Speed Up the Slaughter Line,” NPR’s The Salt, October 27, 2017.

38. Pesticides; Agricultural Worker Protection Standard; Reconsideration of Several Requirements and Notice About Compliance Dates, 82 Fed. Reg. 60576 (December 21, 2017).

39. National Safety Council, “EPA Proposes ‘Commonsense’ Changes to Protect Farmworkers from Pesticides,” Safety+Health, February 21, 2014; 40 CFR 170.

40. United States Environmental Protection Agency, “Agricultural Worker Protection Standard” [webpage], accessed January 25, 2018, at www.epa.gov/pesticide-worker-safety/agricultural-worker-protection-standard-wps.

41. According to Pesticides; Agricultural Worker Protection Standard Revisions, 80 Fed. Reg. 67495 (November 2, 2015), “EPA estimates that about 1,810 to 2,950 acute pesticide exposure incidents occur annually on agricultural establishments.”

42. Penn State College of Agricultural Sciences, Potential Health Effects of Pesticides, November 6, 2017; National Institutes of Health, “NIH Study Finds Two Pesticides Associated with Parkinson’s Disease” [news release], February 11, 2011.

43. U.S. Department of Labor, Fact Sheet #15: Tipped Employees under the Fair Labor Standards Act, revised December 2016.

44. Tip Regulations under the Fair Labor Standards Act, 82 Fed. Reg. 57395 (December 5, 2017).

45. Heidi Shierholz et al., Employers Would Pocket $5.8 Billion of Workers’ Tips under Trump Administration’s Proposed ‘Tip Stealing’ Rule, Economic Policy Institute, December 12, 2017.

46. Heidi Shierholz et al., Women Would Lose $4.6 Billion in Earned Tips if the Administration’s ‘Tip Stealing’ Rule Is Finalized: Overall, Workers Would Lose $5.8 billion, Economic Policy Institute, January 17, 2018.

47. U.S. Department of Labor Wage and Hour Division, “Final Rule: Overtime. Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees under the Fair Labor Standards Act” [informational webpage], accessed January 26, 2018, at www.dol.gov/whd/overtime/final2016.

48. Ross Eisenbrey and Will Kimball, The New Overtime Rule Will Directly Benefit 12.5 Million Working People: Who They Are and Where They Live, Economic Policy Institute, May 17, 2016.

49. Celine McNicholas, Samantha Sanders, and Heidi Shierholz, What’s at Stake in the States if the 2016 Federal Raise to the Overtime Pay Threshold Is Not Preserved—and What States Can Do about It, Economic Policy Institute, November 15, 2017.

50. Celine McNicholas, Samantha Sanders, and Heidi Shierholz, What’s at Stake in the States if the 2016 Federal Raise to the Overtime Pay Threshold Is Not Preserved—and What States Can Do about It, Economic Policy Institute, November 15, 2017.

51. In November 2016, the United States District Court for the Eastern District of Texas, Sherman Division, issued a preliminary nationwide injunction blocking the rule from taking effect. In December 2016 the Department of Justice, on behalf of the Department of Labor, filed a notice with the U.S. Circuit Court of Appeals for the Fifth Circuit to appeal the preliminary injunction. In August 2017, the United States District Court for the Eastern District of Texas issued a final ruling concluding that the overtime rule was invalid, rendering Justice’s 2016 appeal moot. On October 30, 2017, the Department of Justice, on behalf of the Department of Labor, filed a notice to appeal the judge’s decision as part of a process under which the Trump administration DOL will undertake its own rulemaking to determine a new salary threshold (see U.S. Department of Labor, “Department of Labor Provides Update on Overtime” [news release], October 30, 2017).

52. Savings Arrangements Established by Qualified State Political Subdivisions for Non-Governmental Employees, 81 Fed. Reg. 92639 (December 20, 2016).

53. United States Government Accountability Office, Retirement Security: Federal Action Could Help State Efforts to Expand Private Sector Coverage, September 2015.

54. David John and Gary Koenig, Fact Sheet: Workplace Retirement Plans Will Help Workers Build Economic Security, AARP Public Policy Institute, October 2014; Anqi Chen and Alicia H. Munnell, Who Contributes to Individual Retirement Accounts? Center for Retirement Research at Boston College, Issue in Brief no. 17-8, April 2017.

55. White House Office of the Press Secretary, “Presidential Memorandum on Fiduciary Duty Rule,” February 3, 2017.

56. U.S. Department of Labor, “US Labor Department Extends Fiduciary Rule Applicability Date” [news release], April 4, 2017.

57. Definition of the Term “Fiduciary”; Conflict of Interest Rule—Retirement Investment Advice, 81 Fed. Reg. 20946 (April 8, 2016).

58. Ross Eisenbrey, “Labor Department’s Common Sense Fiduciary Rule Survives the House of Representatives,” Working Economics (Economic Policy Institute blog), December 16, 2015.

59. Heidi Shierholz, “EPI Comment on the Proposal to Extend the Applicability Date to the Fiduciary Rule,” letter to the U.S. Department of Labor, March 17, 2017.

60. We estimate that delays through January 1, 2018, would cost retirement savers $7.6 billion and that an additional 18-month delay would cost retirement savers an additional $10.9 billion. See Heidi Shierholz, Another Fiduciary Rule Delay Would Cost Retirement Savers $10.9 Billion over 30 Years, Economic Policy Institute, August 10, 2017.

61. H.J. Res. 42, 115th Congress (2017); PL 115-17.

62. Federal-State Unemployment Compensation Program; Middle Class Tax Relief and Job Creation Act of 2012 Provision on Establishing Appropriate Occupations for Drug Testing of Unemployment Compensation Applicants, 81 Fed. Reg. 50298 (August 1, 2016).

63. U.S. Equal Employment Opportunity Commission, “EEOC to Collect Summary Pay Data” [press release], September 29, 2016.

64. U.S. Equal Employment Opportunity Commission, “What You Should Know: Statement of Acting Chair Victoria A. Lipnic about OMB Decision on EEO-1 Pay Data Collection” [webpage], accessed January 25, 2018, at www.eeoc.gov/eeoc/newsroom/wysk/eeo1-pay-data.cfm.

65. Valerie Wilson and William M. Rodgers III, Black–White Wage Gaps Expand with Rising Wage Inequality, Economic Policy Institute, September 20, 2016.

66. Elise Gould, Jessica Schieder, and Kathleen Geier, What Is the Gender Pay Gap and Is It Real?: The Complete Guide to How Women Are Paid Less Than Men and Why It Can’t Be Explained Away, Economic Policy Institute, October 20, 2016.

67. U.S. Equal Employment Opportunity Commission, “EEOC to Collect Summary Pay Data” [press release], September 29, 2016.

68. U.S. Securities and Exchange Commission, “Reconsideration of Pay Ratio Rule Implementation,” public statement by Acting SEC Chairman Michael S. Piwowar, February 6, 2017; see also “Presidential Executive Order on Core Principles for Regulating the United States Financial System,” issued by the White House, February 3, 2017.

69. U.S. Securities and Exchange Commission, “SEC Adopts Rule for Pay Ratio Disclosure” [press release], August 5, 2015.

70. Lawrence Mishel and Jessica Schieder, CEO Pay Remains High Relative to the Pay of Typical Workers and High-Wage Earners, Economic Policy Institute, July 20, 2017.

71. U.S. House of Representatives, Education and Workforce Committee, Minority Views: H.J. Res. 87, Providing for Congressional Disapproval under Chapter 8 of Title 5, United States Code, of the Final Rule of the Department of Labor relating to “Interpretation of the ‘Advice’ Exemption in Section 203(c) of the Labor-Management Reporting and Disclosure Act.” 114th Congress, Second Session, September 9, 2016.

72. Rescission of Rule Interpreting “Advice” Exemption in Section 203(c) of the Labor-Management Reporting and Disclosure Act, 82 Fed. Reg. 26877 (June 12, 2017).

73. Marni von Wilpert, “Union Busters Are More Prevalent Than They Seem, and May Soon Even Be at the NLRB,” Working Economics (Economic Policy Institute blog), May 1, 2017.

74. Josh Bivens et al., How Today’s Unions Help Working People, Economic Policy Institute, August 24, 2017.

75. Kate Bronfenbrenner, No Holds Barred—The Intensification of Employer Opposition to Organizing, Economic Policy Institute Briefing Paper no. 235, May 20, 2009.

76. National Labor Relations Board, Office of Public Affairs, “Request for Information Regarding Representation Election Regulations” [announcement], December 12, 2017; Representation-Case Procedures, 82 Fed. Reg. 58783 (December 14, 2017).

77. H.J. Res. 37, 115th Congress (2017); PL 115-11.

78. Office of Senator Elizabeth Warren, Breach of Contract: How Federal Contractors Fail American Workers on the Taxpayer’s Dime, 2017.

“Donald Trump has systematically attacked working people at every turn,” said von Wilpert. “While the President claims to be an advocate for working people, his actions speak far louder than words. Trump spent his first year rolling back important worker protections in the Department of Labor, National Labor Relations Board, and the Occupational Health and Safety Administration. And while he has stripped working people of these important protections, we have yet to see any affirmative plan from the Trump administration about what it will actively do to protect workers’ health, wellbeing, and paychecks.”

“As we monitor what the Trump administration and congressional Republicans have done over the last year—from regulations rolled back to legislation enacted it is clear that the corporate lobby is winning every battle,” said EPI Labor Counsel Celine McNicholas. “When it comes to workers versus corporate interests—employers are winning at every turn, and working people are losing power.”

In the last year, Trump and Republican policymakers have:

• Stacked the Federal Reserve Board with candidates friendlier to Wall Street than working families
• Ensured Wall Street advisors can pocket more of workers’ retirement savings
• Blocked workers from access to the courts by allowing mandatory arbitration clauses in employment contracts
• Taken billions out of workers’ pockets by weakening or abandoning regulations that protect their pay

EPI will continue to update its Policy Watch tracker with further actions taken by the Trump administration, Congress, and federal agencies to weaken workers’ rights.

The tax cut law that President Trump boasts will make his wealthy friends “a lot richer” is just the latest in a series of betrayals of working people by the administration and Congress since Trump took the oath of office on January 20, 2017. In addition to passing a massive tax cut for wealthy business owners, Trump and Republicans in Congress have rolled back important worker protections, advanced nominees to key administration posts who have a history of exploiting working people, and taken other actions that further rig the system in favor of corporate interests and the wealthiest Americans.

Here are the 10 worst things Congress and Trump have done to undermine pay growth and erode working conditions for the nation’s workers.

Enacting tax cuts that overwhelmingly favor the wealthy over the average worker

The net effect of the TCJA is clearly regressive, with 83 percent of the benefits accruing to the top 1 percent by the time it is fully phased in, in 2027, according to the Tax Policy Center. Defenders of the TCJA argue that the benefits of corporate tax cuts will trickle down to workers in the form of faster productivity growth and higher wages, but this claim falls apart in the face of many real-world data points; for one thing, the historically high level of corporate profits proves we do not need to redistribute wealth upward through the tax code to give corporations funds for productivity-enhancing capital investment—they already have the funds they need.

A wide body of research finds that the benefits of a cut in corporate income taxes accrue overwhelmingly to owners of capital instead of to workers. In turn, capital ownership is extraordinarily concentrated at the top of the income distribution. For example, the top 1 percent of households own roughly 40 percent of all stocks, including those owned indirectly in 401(k)s and other savings vehicles.

Besides the permanent cut to corporate tax rates, the TCJA’s temporary cuts to individual income taxes includes a preferential rate for “pass-through” businesses—businesses that pay no corporate taxes but whose owners must pay taxes on profits on their individual tax returns when those profits are “passed through” to them. While this is often described as a tax cut for “small businesses,” that description is misleading. Pass-through income is even more concentrated in the very upper reaches of the income distribution than corporate income, with 69 percent of pass-through income claimed by the richest 1 percent of households. This means that the lion’s share of benefits from a preferential pass-through rate will not go to archetypal small businesses like neighborhood stores or day care operations, but instead to hedge funds, white-shoe law firms, and consulting and accounting firms. And, notably, almost surely the companies that make up the Trump Organization.

Taking billions out of workers’ pockets by weakening or abandoning regulations that protect their pay

Early on the administration voiced opposition to the central component of a 2016 rule updating overtime regulations and, in October 2017, the administration effectively killed the 2016 rule. This action deprived 12.5 million workers of automatic overtime protection and will cost workers an estimated $1.2 billion a year. The 2016 overtime rule was promulgated by the Department of Labor (DOL) to restore lost overtime pay to America’s workers by raising the salary threshold below which workers are automatically eligible for overtime pay—from $23,660 to $47,476. Prior to the 2016 rule, the threshold had not been adequately raised in more than 40 years. As a result, low-level managers at retail and fast food outlets who made only $23,660 a year—lower than the poverty rate for a family of four—could be required to work long hours without any extra pay for the extra hours worked. DOL’s overdue attempt to restore lost pay to America’s workers was blocked in the courts by business interests, while Trump administration officials claimed that the new $47,476 threshold was “too high.” On October 31, 2017, the administration made clear in legal proceedings that it would not defend the rule. This stance ignores the link between outdated worker protections and stagnant wage growth. One reason Americans’ paychecks have not been keeping pace with productivity growth is that millions of low- and middle-wage workers who should have access to overtime protections have been working overtime but not getting paid for it.

In December 2017 the administration took the first step toward weakening the tip protections, which would cost workers another $5.8 billion a year in tips they earned but that would likely be pocketed by employers. The current restrictions on “tip pooling,” instituted by DOL in 2011, allow restaurants to pool the tips servers receive but stipulate that the employer may only share pooled tips with other workers who customarily receive tips, such as bussers and bartenders. Employers are prohibited from retaining any of the pooled tips themselves. On December 4, the Trump Department of Labor took its first major step toward allowing employers to legally take tips earned by workers who rely on tips when it proposed rescinding those restrictions. At first glance, the proposal seems benevolent: restaurants would be able to pool the tips servers receive and share them with untipped employees such as cooks and dishwashers. But, crucially, the repeal would mean that employers are no longer required to distribute pooled tips to other workers: as long as tipped workers earn the minimum wage, the employer can legally pocket their tips. EPI estimates that employers will likely pocket nearly $6 billion per year of their workers’ hard-earned tips each year—around $1,000 a year per tipped worker. As a result of this rule, workers will take home less, and their loss will be employers’ gain.

Blocking workers from access to the courts by allowing mandatory arbitration clauses in employment contracts

Forced arbitration is a tool employers use to prevent their employees from seeking justice in court when disputes arise in the workplace. American employers are increasingly requiring workers to sign arbitration agreements in order to get, or keep, their jobs. Arbitration is like a private, for-profit court system, in which the employer usually gets to pick the judge.

Mandatory arbitration panels overwhelmingly favor employers, with employees in mandatory arbitration winning only just about a fifth of the time (21.4 percent). In contrast, they win 36.4 percent of the time in the federal courts and 57.0 percent of the time in state courts. Differences in damages awarded are even greater, with the median or typical award in mandatory arbitration being only about one-fifth of the median award in the federal courts and well under half (43.0 percent) of the median award in the state courts.

Among private-sector nonunion employees, 56.2 percent are subject to mandatory employment arbitration procedures. This means that 60.1 million American workers no longer have access to the courts to protect their legal employment rights and instead must go to arbitration.

Moreover, the events of 2017 brought national attention to what many women have known privately for years: there is still a vast amount of sexual harassment and gender discrimination in America’s workplaces. Mandatory arbitration of employment disputes has fueled the sexual abuse of women by powerful men in politics, business, and the media by barring women from seeking justice against their abusers in court. Forced arbitration prevents victims of sexual harassment from taking their employers to court or even speaking out—under arbitration, most accusations are kept confidential and companies can decide who adjudicates the case.

In 2014, the National Labor Relations Board issued its decision in the Murphy Oil case, finding that arbitration agreements that include class action waivers of all work-related claims are prohibited by the National Labor Relations Act. When the Murphy Oil case was originally headed to the Supreme Court’s docket in 2016, Obama’s Department of Justice filed a brief arguing in favor of the workers. But when Justice Scalia died, the Supreme Court continued this case to the 2017 term. When the briefing resumed in 2017, the Trump Department of Justice switched sides and filed a brief on the side of employers. The Supreme Court heard oral arguments in the case in October 2017 and is expected to deliver a decision before June 2018. And with Justice Gorsuch on the bench, the court will likely give a green light to the proliferation of mandatory arbitration agreements with class action waivers.

Pushing immigration policies that hurt all workers

Ending DACA is forcing young immigrant workers out of the regulated labor market and into the shadow labor market, where they are easily exploitable by employers by virtue of losing their ability to work lawfully. While a federal district court in California temporarily enjoined the Trump administration on January 10, 2018, from continuing the phase-out of DACA, and ordered that it continue accepting applications for renewals, the impact of the decision is unclear. The government will quickly appeal the decision, the timeline for processing renewals is unclear, and no new applications from potential DACA beneficiaries will be permitted.

If the Trump administration’s termination of DACA is allowed to proceed, then each of the nearly 700,000 DACA recipients who are now working with valid work permits will—once those permits expire—become vulnerable to wage theft and other forms of exploitation. That hurts not just them, but it also diminishes the earnings and bargaining power of the U.S. citizens and authorized immigrants who work alongside them.

On September 5, 2017, Attorney General Jeff Sessions announced that the Trump administration would gradually “wind down” and end DACA, a Department of Homeland Security initiative from 2012 that temporarily deferred the deportation of approximately 800,000 young immigrants who were brought to the United States as children. DACA was implemented by the Obama administration after Congress failed to pass the Dream Act, a bill that would have shielded young immigrants brought here illegally by their parents from deportation and offered them a path to permanent residence and citizenship.

On average, DACA recipients saw their wages increase significantly after DACA was implemented; those who were 25 and older increased their average hourly wages by 84 percent. The vast majority—nearly 700,000—of those original DACA recipients are still enrolled in DACA and are employed via two-year work permits that recipients have been able to apply for and renew. DACA has been an unqualified success and has benefited not only the DACA recipients themselves, but also the country and the economy.

Prior to the January 10 injunction, it had been estimated that approximately 122 DACA recipients were losing their work authorization and protection from deportation every day—and that after March 5, 2018, the number losing protection would rapidly increase. Unless the January 10 injunction remains in effect and survives the forthcoming appeals, or Congress passes legislation to give DACA recipients a new immigration status, these workers will continue to be vulnerable. While President Trump has called on Congress to pass a bill to legalize “dreamers” and DACA recipients, he has made any legislation on DACA contingent on building a border wall and other immigration enforcement measures, making a bipartisan deal more difficult to achieve.

The end of DACA means nearly 700,000 young immigrants will become deportable as their protections expire. By losing the ability to work legally and contribute to the United States, DACA recipients will effectively be left without labor rights and employment law protections in the workplace. The United States is the only country many have DACA recipients have ever known since they were small children, which means they are unlikely to “self-deport” as the Trump administration would like them to do. When their permits expire, DACA recipients will be pushed into the informal labor market in order to survive, and as a result will earn lower wages and lose the ability to exercise their workplace rights. This loss of rights and wages en masse for so many workers will in turn degrade labor standards for the American workers employed alongside them.

Rolling back regulations that protect worker pay and safety

On April 3, 2017, Trump signed a congressional resolution blocking the Workplace Injury and Illness recordkeeping rule, which clarifies an employer’s obligation under the Occupational Safety and Health Act to maintain accurate records of workplace injuries and illnesses. Recordkeeping is about more than paperwork. If an employee is injured on the job (for example, is cut or burned, or suffers an amputation), contracts a job-related illness, or is killed in an accident on the job, then it is the employer’s duty to record the incident and work with the Occupational Safety and Health Administration (OSHA) to investigate what happened. Failure to keep injury/illness records means that employers, OSHA, and workers cannot learn from past mistakes, and makes it harder to prevent the same tragedies from happening to others. By signing the resolution to block this rule, Trump gave employers a get-out-of-jail-free card when they fail to maintain or when they falsify—their injury/illness logs. Workers who could have been saved from preventable accidents on the job will have to pay the price with their health or even their lives.

On March 27, 2017, Trump signed a congressional resolution blocking the Fair Pay and Safe Workplaces rule, which sought to ensure that government contracts are not going to companies with a record of violating workers’ rights or putting workers in danger. Under the rule, companies applying for federal contracts must disclose certain violations of federal labor laws and executive orders—specifically violations of laws and orders addressing wage and hour, safety and health, collective bargaining, family medical leave, and civil rights protections. By blocking the rule, Trump leaves civil servants who are awarding federal contracts with no effective system for distinguishing between law-abiding contractors and those that do not take worker protections seriously. Billions of taxpayers’ dollars have been awarded to companies that harm America’s working people by failing to pay minimum wages or overtime or violating other important labor and employment laws and regulations.

Stacking the Federal Reserve Board with candidates friendlier to Wall Street than to working families

Actions taken by the Federal Reserve can either help raise living standards and reduce income inequality—or prolong wage stagnation and make our economy even more unequal. That is because the Fed largely sets interest rates for the economy and acts as the chief regulator of the nation’s big banks, with a Fed mandate to rein in risky Wall Street activities that have so many times hurt Main Street.

Higher interest rates are used to tamp down inflationary pressures, but when used too aggressively during times when inflation is not rising (as it is not right now), raising rates will throw people out of work and drive down wages. Outbreaks of unexpected inflation are particularly bad for wealth-holders while periods of too-high unemployment are particularly bad for low- and moderate-wage workers. In recent decades, the Fed has far too often yielded to the political preferences of wealth-holders and kept rates too high, hurting workers.

Trump’s first appointment to fill Fed vacancies was Quarles, who has consistently defended Wall Street against sensible regulation that would make it less crisis-prone, and has supported baseless criticisms of the Fed’s commitment to low interest rates during the recovery from the Great Recession. Trump also replaced Janet Yellen as the Federal Reserve chair. Yellen has been consistently supportive of monetary policy that targets low unemployment through low interest rates as well as of the Fed’s role as chief financial watchdog. She should have been reappointed as chair. Both she and Stanley Fischer have announced their resignations from the full board, giving Trump two more vacancies to fill. This means that the Trump administration will be able to fully pack the Fed’s Board of Governors with Quarles-like candidates, who will give Wall Street free rein while prematurely raising interest rates to slow the economic expansion just as it has finally begun to reach many working families.

Ensuring Wall Street can pocket more of workers’ retirement savings

Since Trump took office, the Department of Labor has actively worked to weaken or rescind the “fiduciary” rule, which requires financial advisers to act in the best interests of their clients when giving retirement investment advice. The rule was finalized by the Department of Labor in April 2016 after an exhaustive economic analysis found that “adviser conflicts are inflicting large, avoidable losses on retirement investors, that appropriate, strong reforms are necessary, and that compliance with this final rule and exemptions can be expected to deliver large net gains to retirement investors.” The rule was supposed to go into effect in April 2017 but key provisions were delayed multiple times, with the most recent 18-month delay pushing back the ability to enforce the rule to July 1, 2019. EPI estimates that retirement savers who will get, or have already received, advice tainted by conflicts of interest during the delays will lose a total of $18.5 billion out of their retirement savings over the next 30 years.

The rule is being delayed with the clear intent of never fully implementing it. Instead, the Trump administration is buying time until it can permanently dismantle core elements, including the enforcement provisions that put teeth in the “best interest” requirements. The administration claims that it needs extra time to assess the rule’s effect on access to retirement investment advice—but the rule has already undergone a six-year vetting process on the likely impact of the rule, a process that incorporated feedback from four days of hearings, more than 100 stakeholder meetings, thousands of public comments, and a detailed review of the academic literature. According to the Consumer Federation of America, industry claims that the rule harms investors are based on “flimsy and biased evidence.”

Stacking the Supreme Court against workers by appointing Neil Gorsuch

The Senate confirmed Gorsuch after refusing to consider President Obama’s nominee to the Supreme Court for an unprecedented 293 days. During his confirmation hearing, Gorsuch was questioned extensively about his dissent in the TransAm Trucking, Inc. v. Administrative Review Board case. The case involved a trucker who had been fired for leaving his stranded trailer to seek shelter in subzero temperatures. An administrative law judge, the Administrative Review Board, and the Tenth Circuit majority held that the driver had been unlawfully fired. Only Gorsuch dissented. In his dissent, Gorsuch described health and safety goals as “ephemeral and generic” and a worker having to wait in subzero temperatures with no access to heat while experiencing symptoms of hypothermia as merely “unpleasant.” This dissent indicates that Judge Gorsuch does not understand workers’ lives or the laws that protect them, and suggests a hostility to fundamental worker protections.

One of the most fundamental worker protection issues on the docket is the right of workers to form a union and negotiate wages and working conditions with employers. In February the court will hear arguments in Janus v. AFSCME, a case involving public-sector unions’ ability to collect “fair share” fees. Fair share fees are paid by workers who choose not to join their workplace’s union but who are still represented by the union, and benefit from union contract negotiations and have a union advocate working for them if they file a sexual harassment complaint or other grievance with their employer. Taking away public-sector unions’ ability to collect these fair share fees—while the unions are nonetheless required to provide services and representation to these workers—would threaten the unions’ very existence by weakening their financial stability. These unions have worked for decades to protect the rights of the teachers, nurses, firefighters, police officers, and other public service workers that communities depend on.

The very day the Supreme Court agreed to hear the Janus case, Gorsuch was the keynote speaker at an event sponsored in part by the Bradley Foundation. The Bradley Foundation has helped pay for the litigation expenses of the plaintiffs in Janus.

Trying to take affordable health care away from millions of working people

The individual mandate aims to stop free-riding by healthy people that could threaten the efficiency of insurance markets (people not paying premiums when they’re healthy, only diving into insurance pools and paying premiums when they are sick). As an article in Time explains, “Many healthy people would voluntarily opt to go without coverage, and insurers could raise their premiums to cover the remaining, sicker population. These higher premiums would in turn cause more consumers to become priced out of the market.” While reports of massive coverage losses ultimately tanked congressional efforts to totally repeal the ACA last fall, the inclusion of the individual mandate repeal in the Tax Cuts and Jobs Act and the Trump administration’s cuts to ACA advertising and outreach signal a persistent desire to weaken or abolish the ACA.

It’s no surprise that the latest hit to the ACA will result in millions losing coverage. Congress spent the first half of 2017 trying to push through various versions of an ACA repeal bill called the American Health Care Act (AHCA). At every iteration, CBO analysis revealed the act would leave tens of millions without access to health care (with millions losing coverage even under a so-called skinny repeal that eliminated just a few key elements of the ACA). The AHCA would have also hurt those Americans who managed to retain health care coverage. It would have raised premiums and out-of-pocket costs, with out-of-pocket costs alone rising by $33 billion annually. And the AHCA would have slowed job growth significantly: working families’ spending would be curbed by the much higher out-of-pocket health expenses they face, which would lower demand for goods and services and thus slow job growth. See EPI’s interactive map showing how many jobs the AHCA could have cost each state.

Undercutting key worker protection agencies by nominating anti-worker leaders

On January 20, 2017—his very first day in office—Trump failed workers when he nominated Andrew Puzder, then-CEO of CKE Restaurants (the parent company of Carl’s Jr. and Hardee’s), to be secretary of the Department of Labor. Puzder has opposed raising the minimum wage and the overtime salary threshold, criticized paid sick time proposals and health and safety regulations, and was CEO of a company with a record of violating worker protection laws and regulations. While his nomination was ultimately withdrawn due in great part to intense pressure from workers’ rights advocates, Trump’s original selection made a powerful statement—the president was prepared to support a labor nominee who is hostile to policies that would benefit the nation’s workers.

On September 2, 2017, Trump nominated Cheryl Stanton to serve as the administrator of the U.S. Department of Labor’s Wage and Hour Division (WHD). In addition to enforcing fundamental minimum wage and overtime protections, WHD has a full host of responsibilities and enforcement authorities that include labor protections for workers in low-wage industries where workers are most vulnerable, such as agriculture. Stanton has spent much of her career representing employers, not workers, in cases alleging violations of workplace laws, including wage theft and discrimination. And Stanton was sued by a cleaning services provider who alleged that Stanton failed to pay for multiple housecleaning visits. Stanton has not been confirmed by the full Senate, but will likely be renominated by President Trump again this year.

The NLRB’s role is to protect workers’ rights under the National Labor Relations Act, deciding cases involving when and how workers can form a union and what types of activities employees can engage in to try to improve their working lives. Yet Trump has appointed leaders to the NLRB who have no record of supporting working people. On September 25, 2017, the Senate confirmed Trump nominee Rob Emanuel—an attorney at the Littler Mendelson law firm who had regularly represented large employers—to become a member of the NLRB. On November 8, 2017, the Senate confirmed Trump nominee Peter Robb as the general counsel to the NLRB. Robb has spent much of his career as a management-side labor and employment lawyer.