Religion

Provide robust protections for religious employers

America’s religious diversity means that workplaces include people of many faiths and that many employers are faith-based.

Nevertheless, the Biden Administration has been hostile to people of traditional beliefs.

Promote pro-life workplace accommodations for mothers

Federal law should protect life and promote pro-family policies.

Current law, the Pregnancy Discrimination Act, provides nondiscrimination protections in the workplace for pregnancy, childbirth, or related medical conditions.

The Pregnant Workers Fairness Act (PWFA) requires employers to make reasonable accommodations for women “to the known limitations related to the pregnancy, childbirth, or related medical conditions,” unless “the accommodation would impose an undue hardship on the operation of the [employer’s] business.”

The Americans with Disabilities Act (ADA) also provides nondiscrimination and accommodation protections in the workplace for certain pregnancy-related disability.

None of these laws requires an employer provide health insurance benefits for elective abortion.

The new Administration should enact policies with robust respect for religious exercise in the workplace, including under the First Amendment, the Religious Freedom Restoration Act of 1993 (RFRA),8 Title VII, and federal conscience protection laws.

Issue an executive order protecting religious employers and employees.

The President should make clear via executive order that religious employers are free to run their businesses according to their religious beliefs, general nondiscrimination laws notwithstanding, and support participation of religious employees and employers as federal contractors and in federal activities and programs.

Clarify Title VII’s religious organization exemptions.

Congress should clarify Title VII’s religious organization exemptions to make it more explicit that those employers may make employment decisions based on religion regardless of nondiscrimination laws.

Provide Robust Accommodations for Religious Employees.

Title 7 requires reasonable accommodations for an employee’s sincerely held religious beliefs, observances, or practices unless it poses an undue hardship on the employer’s business. These accommodation protections also apply to issues related to marriage, gender, and sexuality.

Unless the Supreme Court overrules its bad precedent, Congress should clarify that undue hardship means “significant difficulty or expenses,” not “more than a de minimis cost” as the Court has previously held.

General EEOC Reforms. The Equal Employment Opportunity Commission (EEOC) does not have rulemaking authority under Title VII and other laws it enforces, yet it issues “guidance,” “technical assistance,” and other documents, including some that push new policy positions.

EEOC should disclaim its regulatory pretensions and abide by the guidance reforms dis- cussed below.

EEOC should disclaim its regulatory pretensions.

Affirm decision-making via majority vote of Commissioners. EEOC should affirm as policy the Title VII requirement that it exercise substantive power via majority vote of Commissioners, not by unilateral Chair action or by delegation to staff.

Disclaim power to enter into consent decrees.

EEOC should disclaim power to enter into consent decrees that require employer actions that it could not require under the laws it enforces.

Reorient enforcement priorities. EEOC should reorient its enforcement priorities toward claims of failure to accommodate disability, religion, and pregnancy (but not abortion).

Refocusing Labor Regulation on the Good of the Family. The DEI revolution in labor affected not only the administrative state, but it has also targeted much of the private sector. Owing to the combination of regulatory pressure and eager human resources offices in the private sector, much of American labor and employment policy has become institutionally oriented toward “woke” goals.

Retracting regulations that support this revolution is a good first step, but more is needed.

We must replace “woke” nonsense with a healthy vision of the role of labor policy in our society, starting with the American family.

Allow workers to accumulate paid time off. Lower- and middle-income workers are more likely be in jobs that are subject to overtime laws that require employers to pay time-and-a-half for working more than 40 hours a week.

Congress should enact the Working Families Flexibility Act

The Working Families Flexibility Act would allow employees in the private sector the ability to choose between receiving time-and-a-half pay or accumulating time-and-a-half paid time off (a choice that many public sector workers already have). For example, if an individual worked two hours of overtime every week for a year, he or she could accumulate four weeks of paid time off to use for paid family leave, vacation, or any reason.

Congress should incentivize on-site childcare. Across the spectrum of professionalized childcare options, on-site care puts the least stress on the parent-child bond.

Congress should amend the Fair Labor Standards Act (FLSA) to clarify that an employer’s expenses in providing on-site childcare are not part of an employee’s regular rate of pay.

DOL should commit to honest study of the challenges for women in the world of professional work. The Women’s Bureau at DOL tends towards a politicized research and engagement agenda that puts predetermined conclusions ahead of empirical study.

The Bureau should rededicate its research budget towards open inquiry, especially to disentangle the influences on women’s workforce participation and to understand the true causes of earnings gaps between men and women.

Equalize retirement savings access across married households

The limit on individual contributions to a 401(k), 403(b), or similar work-based retirement account is $22,500 for 2023. Individuals who do not work or do not have access to a work-based retirement account can save up to $6,500 in an IRA. This individual-based system creates a disadvantage for married couples with only one spouse who works (or with two working spouses, one of whom earns less than the maximum retirement account contribution).

To equalize access to tax-free retirement savings for married couples, the limit for married couples on 401(k) and similar work-based retirement savings accounts should be double the limit for individuals, regardless of the allocation of work between the couple.

Family Statistics

Every month, DOL’s Bureau of Labor Statistics surveys tens of thousands of households to generate detailed estimates of labor market condi- tions and price levels. And every quarter, the Department of Commerce’s Bureau of Economic Analysis estimates the change in the entire economy’s output to the fraction of a percentage point. Yet data on the state of the American family and its economic welfare are released at best annually, and generally a year or more after the fact. Metrics like marriage and fertility rates, the share of children living with both biological parents, the cost of a standard basket of middle-class essentials, and the share of families whose highest-income worker earns more than twice the poverty threshold should be measured and reported monthly and in real-time and incorporated in releases for other labor statistics.

Congress should establish an Assistant Commissioner for Family Statistics within the Bureau of Labor Statistics. Congress should require the Bureau to establish a pilot survey with a sample comparable to the BLS Current Population Survey that would publish monthly estimates for measures of the American family’s wellbeing, and appropriate sufficient funds for that purpose.

Congress should require that the Consumer Price Index market basket include measurable family-essential goods.

Alternative View

While metrics on the state of American families and civil society are important and useful, monthly statistics would be of little additional value and could end up causing unnecessary confusion and concern. Funding should be oriented towards improving the timeliness of annual family statistics.

Sabbath Rest. God ordained the Sabbath as a day of rest, and until very recently the Judeo-Christian tradition sought to honor that mandate by moral and legal regulation of work on that day. Moreover, a shared day off makes it possible for families and communities to enjoy time off together, rather than as atomized individuals, and provides a healthier cadence of life for everyone. Unfortunately, that communal day of rest has eroded under the pressures of consumerism and secularism, especially for low-income workers.

While some conservatives believe that the government should encourage certain religious observance by making it more expensive for employers and consumers to not partake in those observances, other conservatives believe that the government’s role is to protect the free exercise of religion by eliminating barriers as opposed to erecting them. Whereas imposing overtime rules on the Sab- bath would lead to higher costs and limited access to goods and services and reduce work available on the Sabbath (while also incentivizing some people—through higher wages—to desire to work on the Sabbath), the proper role of government in helping to enable individuals to practice their religion is to reduce barriers to work options and to fruitful employer and employee relations. The result: ample job options that do not require work on the Sabbath so that individuals in roles that sometimes do require Sabbath work are empowered to negotiate directly with their employer to achieve their desired schedule.

Teleworking

COVID made telework ubiquitous, but the law and regulations are still stuck in an era when telework was unique.

Congress should clarify that overtime for telework applies only if the employee exceeds 10 hours of work in a specific day (and the total hours for the week exceed 40).

Congress should encourage communal rest by amending the Fair Labor Standards Act (FLSA)9 to require that workers be paid time and a half for hours worked on the Sabbath. That day would default to Sunday, except for employers with a sincere religious observance of a Sabbath at a different time (e.g., Friday sundown to Saturday sundown); the obligation would transfer to that period instead. Houses of worship (to the limited extent they may have FLSA-covered employees) and employers legally required to operate around the clock (such as hospitals and first responders) would be exempt, as would workers otherwise exempt from overtime.

DOL should clarify that an employee given the option to telework need only record time if the quantity of work assigned for that day exceeds the usual amount of work that employee performs so that the employee need not track every time he logs in and out and the employer need not do so either.

DOL should clarify that a home office is not subject to OSHA regulations and that time to set up a home office is not compensable time or eligible for overtime calculations. DOL should likewise clarify that reimbursement for home office expenses is not part of an employee’s regular rate, even if those reimbursements are repetitive (such as for internet or cell phone service).

Making Family-Sustaining Work Accessible. Our national work ethic is an American hallmark. As Benjamin Franklin once said, “America is the land of labor.” Much of American life is mediated by Americans coming together to take responsi- bility for solving problems and helping their communities. Our labor agenda must allow community institutions, including small businesses, schools and universities, religious organizations, and worker organizations, to thrive.

Protect flexible work options and worker independence (independent contractors). Roughly 60 million Americans across all income groups, ages, education levels, races, and household types participate in independent work, including full-time, part-time, or as a “side hustle.” People choose independent work for a variety of reasons, including flexibility, earnings potential, and the desire to be one’s own boss. An economic analysis of data from one million Uber drivers found that they valued the flexibility of the platform at 40 percent of their earnings, and the average Uber driver would not work at all if he or she had to submit to a taxi-cab schedule. The value of flexibility extends beyond ride-sharing and other platform work; more than half of people who did independent work in 2021 said they cannot work a traditional job because of personal or family circumstances such as their health or caring for a child or family member.

Independent workers, or contractors, are also critical to entrepreneurship and small-business growth and success. On average, employers with four or fewer employees rely on seven contractors to run their business. Without the ability to hire those contractors, many small businesses could not compete with larger ones that can afford to employ workers in-house.

Businesses and workers currently must navigate many different definitions of who is and who is not an employee (or an independent contractor) based on federal and state employment, compensation, tort, tax, and pension laws. This complexity often leads to confusion, improper classification, and costly litigation. The Trump Administration finalized rules to provide clarity on which workers — 590 —Department of Labor and Related Agencies qualify as an independent contractor or employee under the FLSA and NLRA. The Biden Administration is replacing those rules with vague and expansive definitions that would add uncertainty, increase costs, and reduce options for Americans who want to work independently.

NLRB and DOL should return to their 2019 and 2021 independent contractor rules that provided much-needed clarity for workers and employers.

Congress should establish a bright-line test—based on the level of control an individual exercises over his or her work—to determine whether a payee is an employee or an independent contractor, across all relevant laws. This would prevent continued uncertainty as well as provide continuity across federal laws.

Congress should provide a safe harbor from employer-employee status for companies that offer independent workers access to earned benefits. Doing so would increase access among independent contractors to traditional pooled workplace benefits such as health care and retirement savings accounts.

DOL and NLRB should return to the long-standing approach to defining joint employers based on direct and immediate control.

Congress should enact the Save Local Business Act, which would codify the long-standing definition that has existed outside the Obama-era and Biden-proposed rules.