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rely on the vagueness of the law to bring enforcement activity against businesses

that fail to meet an inspector or agency head’s personal standard. This is not fair

to regulated parties and results in disfavored companies bearing the brunt of the

agencies’ enforcement efforts even though their behavior may be within the mainstream of employer behavior.

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

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 This rule was immediately rescinded by the Biden Administration.

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

• Congress should amend the Administrative Procedure Act" to explicitly limit the use of guidance documents.