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Labor Department Should Delay Overtime Rulemaking Pending Report

It is important for government to have all the facts before taking action. Federal agencies need to perform research and analyze available data prior to issuing rules. Undertaking evidence-based policy making is necessary so that government issues practical regulation and minimizes unintended consequences. After all, regulation can impinge on liberties and harm economic growth when conducted haphazardly.

In the Department of Labor’s Strategic Plan Fiscal Year 2018-2022, the agency pledges to improve and increase the use of evidence-based policymaking in order to ensure regulation is sensible and the agency spends tax dollars wisely.

Today, in comments submitted to the DOL, I suggest a way to improve the agency’s evidence-based policy making. In short, the agency needs to prepare and submit all reports required by statute.

Complying with federal statutes is imperative if agencies are to operate as intended by Congress. However, it appears the DOL has repeatedly failed to submit a report required by the Fair Labor Standards Act (FLSA). Section 204(b) requires the Labor Secretary to submit a biennial report to Congress that studies wage and hour provisions established by the FLSA and present recommendations to prevent curtailment of employment opportunities. Another area of research includes evaluating and appraising the effects of minimum wage and overtime requirements by taking into account increased costs and other relevant factors. 

Though it is always important for federal agencies to comply with the law, producing this report is urgent. Currently, the DOL is in the process of making changes to overtime requirements. In July, the DOL issued a request for information on how best to formulate a new overtime rule. Currently, the agency is reviewing public comments and will next issue a notice of proposed rulemaking.

Any agency action on making changes to overtime requirements should be delayed until the DOL has submitted the statutorily required report, which, in part, orders the Labor Secretary to evaluate and appraise the effects of overtime policy. It is crucial because any modifications to overtime requirements can impact the employment situations of millions of workers and increase the cost of doing business, which may lead to a decline in job creation.

As I wrote in my comments:

Performing such an in-depth study on the economic impact of overtime requirements is a necessity for the DOL to achieve its objective of engaging in evidence-based policymaking; it also fulfills a statutory requirement.

The study to Congress on preventing curtailment of employment and evaluation of wage and hour requirements are mandated by statute and must be produced. Meeting statutory requirements should be a part of any DOL Strategic Plan.

In the Labor Secretary’s message preceding the DOL’s Strategic Plan FY 2018-2022, Alexander Acosta writes that the plan reflects the President’s top priorities: “jobs, more jobs, and even more jobs.”

If job creation is the top priority of the agency, it is more important than ever to prepare and submit the report to Congress that offers recommendations to prevent curtailment of employment opportunities.