Department of Labor Solicitor Jonathan Berry issued a new “enforcement” memo at the end of February to share his “enforcement priorities priorities—regarding what, where, and how we protect the American worker.”
I put “enforcement” in quotes because this memo actually spends more time describing how and where the Department will not enforce the law.
It’s mostly a rant in legal language extolling Republican and pseudo-religious MAGA principles.
Among other things, the memo suggests that the Department should emphasize compliance assistance and partnership over enforcement, discourage enforcement in unionized workplaces, focus mainly on large companies and stay away from any action where employers can make a “colorable” argument that an enforcement action might interfere with religious freedom.
Now, it’s unclear how much real effect the memo will have, but in the process of critiquing the memo, hopefully I can educate some of you about how OSHA works and what this administration would like to do to the agency.
Background
In the first Trump administration, Jonathan Berry was a managing partner at the law firm Boyden Gray and former Regulatory Policy Office at the Department of Labor where “his office credited the Department of Labor with over ten billion dollars in deregulatory cost savings for the American public.”
Like that was a good thing.
During the Biden administration, he was the author of the labor chapters in Project 2025 where he declared war on the Obama-Biden DEI “revolution.”
Under the Obama and Biden Administrations, labor policy was yet another target of the Diversity, Equity, and Inclusion (DEI) revolution. Under this managerialist left-wing race and gender ideology, every aspect of labor policy became a vehicle with which to advance race, sex, and other classifications and discriminate against conservative and religious viewpoints on these subjects and others, including pro-life views. The next Administration should eliminate every one of these wrongful and burdensome ideological projects.
The Solicitors office at DOL, which Berry now heads, is where the Department’s lawyers work. Agencies like OSHA don’t have their own lawyers; it’s the solicitors in the National Office and in the regions that help OSHA put together enforcement case that will withstand judicial review if employers contest citations. They are mostly involved in large cases and cases involving willful violations or General Duty Clause citations and can kill cases that they don’t think meet their criteria.
As DOL Solicitor, Berry determines enforcement policy, what kind of cases should take priority and how hard to fight when employers contest citations.
The Memo
The memo applies to all enforcement agencies in the Department of Labor, but I’m going to mostly focus on OSHA.
I couldn’t even get past the title, “Enforcement Priorities to Protect the American Worker and Those Who Depend on Him” (emphasis added) without shaking my head.
I guess their DEI phobia prevents them from saying “them” or even “him or her.” (And just for your situational awareness, 413 women were killed in the workplace in 2024 and women are killed and injured at particiularly high rates from workplace violence, often in health care and social assistance sectors. But I guess all that data is too woke for Trump’s DOL.)
The first sentence states that “President Trump returned to office with unprecedented support from Americans who work paycheck to paycheck.” Then it goes religious: “We at the Office of the Solicitor put the American worker first by shoring up the social contract that affirms work as service to God, to family, to community and to the nation.”
It goes downhill from there. The first sentence then states that “President Trump returned to office with unprecedented support from Americans who work paycheck to paycheck.”
Then it goes religious: “We at the Office of the Solicitor put the American worker first by shoring up the social contract that affirms work as service to God, to family, to community and to the nation.”
So American workers go to work to serve God, family, community and the nation? From my experience, most workers go to work to provide food and shelter to their families. Service to God, community and the nation? Probably not high on “why I drag myself out of bed every morning.”
He goes on to caution that “Work cannot be service — not fully — if you are needlessly risking life and limb on the job.”
So, I guess that’s partially true. Workers can’t “serve” their families if their dead or seriously injured. Should God’s wrath rain down on employers who put workers in needlessly dangerous situations?
But enough of the religious rhetoric. Let’s get down to the nuts and bolts. The memo is divided into three sections: What We Protect, Where We Protect, and How We Protect.
What We Protect
The first section under “What” deals with safety:
“We put American workers first by enforcing the laws that keep them safe. Too many preventable workplace deaths and serious injuries occur every day in the American workplace. We enforce safety laws to protect the life and limb of the American worker and to ensure that he [sic] comes home safely to his [sic] family every night.
Not bad, aside from still being to unwoke to admit that women work in dangerous jobs as well as men.
Biden Bashing
The memo then it goes off the rails. Because in the Trump administration, no policy document can be issued without devoting a section to Biden Bashing.
The prior administration’s focus on “safe spaces” did not make workplaces safer. Its emphasis on DEI, vaccine mandates, and transgender bathroom policies—on top of its encouragement of illegal immigration—took attention off the very real problem of employers who refuse to honor even basic obligations to keep American workers safe.
OK, first, if you’re really concerned about how to force incalcitrant employers to “honor even basic obligations to keep workers safe,” the first place you might consider for improvement is OSHA’s tiny budget and reducing the constant Republican and business attacks on OSHA enforcement and the agency’s ability to issue strong standards.
It’s true that the Biden Administration issued two emergency OSHA COVID-19 standards — after the first Trump administration did nothing to protect workers. But neither of those standards mandated vaccinations; One was focused on protecting healthcare workers and the other only mandated testing, not vaccinations. Only those who refused to be tested were required to be vaccinated. Anyway, OSHA enforcement staff didn’t spend much time or attention enforcing the non-existent vaccine mandate because the Supreme Court overturned the rule before it came into effect.
And true, the Obama administration did issue an OSHA factsheet covering A Guide to Restroom Access for Transgender Workers which laid out some best practices, sample policy and basically explained that it’s unhealthy to discourage workers from using the bathroom. (DOGE disposed of it in the DOL book burning frenzy last year.) There was nothing actually enforceable in the fact sheet and no OSHA inspector in the entire country spent much time on it or used it to cite any employer.
Finally, I can pretty much guarantee that not a single OSHA employee in the Biden or Obama administration spent a single second encouraging illegal immigration.
But hey, I guess if the big boss tells you to bash Biden in everything you write, you come up with some way to bash Biden.
Where We Protect
“Where” We Protect is “everywhere unaddressed hazards exist.” Right?
Not quite. Nothing is that simple in this administration.
First, they get cute, charging solicitors to target “the Big, the Bad and the Ugly” where you find “the most impactful cases against the most significant offenders” (and no apology to Sergio Leone or Clint Eastwood.)
According to the memo, Labor Department enforcement agencies are now supposed to prioritize “big” employers over small employers. Large employers employ more employees, so you get more bang for your buck than inspecting small employers.
Well, yes, citing large employers may help more workers per case than citing small employers, but many of the most egregious violations OSHA sees are in smaller employers. Also small employers are harder to find — especially in the construction industry.
Finally, with OSHA’s pathetically low penalties, citations against large employers are little more than the cost of doing business, which limits their effectiveness.
Enforcement agencies are also supposed to prioritize “bad” employers” “willful and repeat violators who have demonstrated their refusal to comply with the law and therefore require more attention.”
Good priority. In fact, so good that targeting the worst employers has always been an OSHA priority.
And then there’s the “ugly,” described as “Breaches of solemn trust by those obliged to put others before themselves, like ERISA fiduciaries and union officials, merit great scrutiny.”
Yes, because in addition to Biden bashing, Republicans always require a bit of union bashing as well even from the Department of Labor.
The fiduciary part is also somewhat ironic, because Republicans and their business friends killed Obama’s “Fiduciary Rule” which required that retirement advisors act in the best interests of their clients and put their clients’ interests above their own.
How We Protect
How does Berry intend to protect worker? Well, this being a Republican administration, the top enforcement priority is not enforcement; it’s “Compliance Assistance.”
We respect employers as job creators who generally want partnership, not conflict, with workers, and our work will often focus on offering robust compliance assistance. In particular, our attorneys will endeavor to offer employers and workers maximum clarity about their rights and obligations under the law through careful attention to regulatory drafting and to producing abundant advisory content (opinion letters, etc.) aimed at presenting the Department’s views.
Compliance assistance is basically a government term for training, education, fact sheets and any other assistance that employers or workers might need to understand how OSHA standards work and how to make the workplace safe. There’s nothing wrong with any of that, except that OSHA’s first priority under the Act — articulated in the first sentence of the law — is “To assure safe and healthful working conditions for working men and women; by authorizing enforcement of the standards developed under the Act.”
Watch any Congressional hearing on OSHA and you will find that in the Republican world, there are two ways to get
employersjob creators to make their workplaces safe: The bad confrontational way (enforcement), and the good, cooperative way (compliance assistance.) They envision a world where “job creators” can walk hand in hand with theirworkerspartners toward a better and safer future — preferably without any of that confrontational enforcement stuff.
Further down, the Act mentions “research, information, education, and training.”
In other words, setting standards and enforcing those standards is OSHA’s top priority.
This emphasis on compliance assistance over enforcement isn’t unusual for Republican administrations. Watch any Congressional hearing on OSHA and you will find that in their world, there are two ways to get employers job creators to make their workplaces safe: The bad confrontational way (enforcement) and the good, cooperative way, emphasizing compliance assistance. They envision a world where “job creators” can walk hand in hand with their workers partners toward a better and safer future — preferably without any of that confrontational enforcement stuff.
Plus, in both Democratic and Republican administrations, OSHA always publishes “robust” compliance assistance materials so that workers and employers can understand the requirements of OSHA standards.
But Republicans tend to see compliance assistance as an alternative to enforcement, rather than a supplement, and mostly aimed at educating employers. Democrats, on the other hand, see compliance assistance as supplement to enforcement and mainly targeted toward the most vulnerable workers who don’t know the law or the hazards they’re facing, as well as small businesses who can’t afford to employ health and safety staff or hire consultants.
Saving Lives By Focusing on Statutory Text
OK, moving on. What is the next priority after compliance assistance and partnership?
Is this where we get to enforcement?
Not quite.
The next way the Department will protect workers is by focusing on statutory text.
Now, you may be wondering how focusing on statutory text protects workers.
Well, as Berry explains, “Especially after the demise of Chevron deference, it is crucial to anchor enforcement actions in statutory text. All legal analysis must start with the original public meaning of the legislation authorizing us to act.”
“Chevron deference,” faithful Confined Space readers may recall, was a 40-year-old legal precedent that told the courts that if a statute passed by Congress was ambiguous or silent, the court should defer to the expert agency to determine what standards need to be issued.
In 2024, Supreme Court justices appointed by Trump and other Republican presidents did the bidding of the business community and overturned Chevron. Judges, who generally know nothing about chemical toxicity, infectious diseases or how to keep workers from tumbling off buildings, can now tell the agencies full of scientists and other experts to go to hell, and decide for themselves whether a standard or regulation was intended in the original legislation and how it should be written.
So, according to Berry’s memo, if DOL solicitors really want to protect workers, they need to determine whether enforcement actions are consistent with the “original public meaning” of the authorizing legislation. What does that mean? Does that mean if a solicitor decides that a certain standard was possibly not envisioned in the original text of the Occupational safety and Health Act (for example, infectious diseases), then OSHA shouldn’t enforce it?
Who knows If you’re still confused about how “anchoring enforcement actions in statutory text” contributes to protecting workers — join the crowd. You’re not stupid or ignorant. It really does make no sense.
Setting Enforcement Priorities
But the law is the law (for now), so even though enforcement hasn’t yet been mentioned in the “How We Protect” section, enforcement agencies still need to enforce the laws — even in Republican administrations. At least for now.
So how should DOL enforcement agencies prioritize enforcement actions?
First, “We disfavor pursuing enforcement in workplaces covered by collective bargaining agreements that provide adequate and regularly implemented remedies.”
And what are “adequate and regularly implemented remedies?” Is it possibly that Berry envisions “adequate” remedies that are less that strict compliance with OSHA standards? Otherwise, why not just say “collective bargaining agreements that ensure strict compliance with all OSHA standards?”
In any case, for those really interested in the “original public meaning” of the OSHAct, there is nothing in the language that allows OSHA to deprioritize union shops when determining inspection priorities.
Now, it’s not clear exactly what this means for a few reasons.
First, OSHA has two types of inspections: unprogrammed and programmed. “Unprogrammed” inspections are basically those that OSHA is required to do: workplace deaths, catastrophes (three or more hospitalizations), imminent dangers and worker complaints. Those are mostly reactive – after a worker is injured or killed.
If there is are any time and resources left, OSHA conducts “programmed inspections.” Programmed inspections are proactive inspections called for by national or local “emphasis programs.” Emphasis programs target hazards or business sectors that are particularly dangerous — such as trenching, workplace violence or auto part manufacturers.
OSHA’s “Site Specific Targeting Program,” which targets the most dangerous establishments for inspection based on the injury and illness numbers that they report to OSHA are also “programmed inspections.
Berry’s deemphasis of union establishments would likely only target programmed inspections, not the mandatory unprogrammed inspections. But instead of just basing unprogrammed inspections on the level of hazard and history of injuries and illnesses, they would now also consider whether the workplaces were union or not — under the presumption, I assume, that unions can do OSHA’s work for them. (And considering OSHA’s critical shortage of inspectors, they need all the help they can get.)
That might not be a totally terrible idea if unions were given full control over workplace safety in their establishments, including with the ability to shut down any dangerous job. But I don’t think that’s what Berry had in mind.
But don’t despair. The presumption that workers do a better job than OSHA is “suspended” if there is “credible evidence” that the union isn’t effectively using its grievance process or if the contract language is insufficient.
OK, but aside from putting the blame for health and safety problems on ineffective unions with lousy contract language, how does OSHA know whether there is good contract language that “provide(s) adequate and regularly implemented remedies” unless it inspects the workplace?
Will OSHA inspectors and DOL solicitors now become labor contract experts, able to determine the adequacy of union contract language and the effectiveness of each local union’s grievance process?
And is dissecting contract language a better way to determine whether an inspection is needed than looking at the hazards of that industry and the establishment’s injury and illness numbers?
This is an enforcement memo that barely touches on actual enforcement strategy or policy, instead spending more time invoking religious reasons to work and not enforce the law, with a touch of Biden-bashing and a much more fulsome discussion of areas where DOL agencies like OSHA should not enforce than where they should enforce.
But Berry may have something else up his sleeve. In Project 2025 he suggested that labor laws should not be seen as a “One-size-fits-all ‘floors,'” but rather “negotiable defaults,” allowing unions to be bullied into convinced to bargain their legal protections away.
On the other hand, it’s truly heartwarming that this anti-union administration has such faith in the effectiveness of unions, but if that’s really the case, maybe they should be encouraging unionization by supporting the Protecting the Right to Organize (PRO) Act and, not firing sitting NLRB board members, replacing the NLRB General Counsel with an employer friendly lawyer and undermining labor law.
Don’t Piss Off God
So after deprioritizing union shops, the next priority is ensuring that enforcement doesn’t interfere with arbitrations.
Finally, we get to the Final Commandment: Enforcement shall not interfere with “the fundamental constitutional right of workers and employers to freely exercise religion at work.”
Now OSHA has run into religion problems before: religions that require head coverings that may preclude the use of hardhats, or require followers to wear beards that would decrease the effectiveness of respirators. And OSHA has made some accommodations. For example, OSHA can exempt an employer from being cited if an employee refuses a hard hat based on sincerely held religious belief. For respirators, OSHA requires employees who wear beards out of religious conviction to use “positive pressure” respirators whose effectiveness is not diminished by beards.
But I don’t think this religious caution is coming from beards or hard hats; more likely throwing a bone to the anti-vaccine crowd.
Solicitors across the country are strictly warned that:
If an employer could assert a colorable Religious Freedom Restoration Act defense against an enforcement action, you should notify the SOL front office immediately to evaluate whether there is a material possibility that enforcement (even at the investigation stage) could risk substantially burdening a sincere religious exercise.
(For all you non-lawyers out there, like me, a “colorable” claim is not a coloring book for lawyers; it’s a “plausible legal claim.”)
Conclusion
I’m not sure what to make of all this. Obviously, the enforcement memo is more ideological rhetoric than actual policy. It’s an enforcement memo that mostly focuses on where not to enforce, instead spending more time invoking religious reasons to work and not enforce the law, with a touch of union and Biden-bashing.
Nevertheless, it’s an interesting, if troubling view into the mindset of those running the Department of Labor these days.