Policy Backgrounders

Regulatory Policy Changes: The Example of Workforce

July 22, 2025

Earlier this year, the Administration issued several Executive Orders and Presidential Memoranda as guides for the deregulatory part of the DOGE effort. As that effort now proceeds to the repeal of hundreds of regulations that DOGE and agencies identified, this Backgrounder shows how that regulatory guidance is being applied in practice, using some examples of regulations the US Department of Labor proposed for repeal. 

• The Administration’s guidance takes a broad view of a number of Supreme Court precedents, with a goal of spurring further and rapid deregulation.
• Some regulations are being repealed without use of notice-and-comment procedures; other repeals will use traditional notice-and-comment procedures; interested businesses will need to comment quickly once a repeal has been announced in the Federal Register.
• Using the principles the Administration articulated earlier, recent proposed rules from the Department of Labor seek to revert regulations pertaining to registered apprenticeship programs and the applicability of the Fair Labor Standards Act to domestic service employees to earlier versions that it believes are more consistent with the statute.
• The Department also proposes removing nonbinding interpretive guidance from the Code of Federal Regulations (CFR), arguing that the CFR is reserved for provisions that have legal effect, but the status of the guidance remains unclear.

Next Steps in Deregulation

Earlier this year, the President issued an Executive Order extending the work of the Department of Government Efficiency (DOGE) to the regulatory sphere. In April, the President issued a series of new Executive Orders and a Presidential Memorandum that have the potential to change administrative law dramatically, specifically in environmental law but also throughout all categories of Federal regulations. As agencies have proposed regulations for repeal, these are now being published in the Federal Register.

“Repeal of Unlawful Regulations”

A Presidential Memorandum “Directing the Repeal of Unlawful Regulations” gave guidance to Departments and agencies in identifying regulations for repeal as part of the DOGE regulatory effort. Stating that “[u]nlawful, unnecessary, and onerous regulations impede” economic growth and prosperity, the Memorandum cites a number of Supreme Court decisions that it believes “recognize appropriate constitutional boundaries on the power of unelected bureaucrats and that restore checks on unlawful agency actions.”

The list of decisions gives clues as to the extent of the Administration’s goals. Beyond the cases the Court decided last year, Loper Bright Enterprises v. Raimondo and SEC v. Jarkesy, and West Virginia v. EPA, all of which sharply restricted agencies’ power, it also includes the 2020 case Cedar Point Nursery v. Hassid (restricting access to private land under the Takings Clause for unionization efforts), Carson v. Makin (holding that a “nonsectarian” requirement for tuition payments in certain school districts violates the Free Exercise Clause of the First Amendment), and Roman Cath. Diocese of Brooklyn v. Cuomo (overturning a New York regulation early in the pandemic that restricted attendance at worship services). Given this, the Administration likely seeks to use the DOGE effort to focus on regulations that agencies might have issued beyond Congress’ intent or powers to delegate and but also on issues such as labor law, public health restrictions, and the future of affirmative action outside the higher education context (the somewhat narrow holding of Students for Fair Admissions v. Harvard).

While the Memorandum is couched in legal language, for example stating that notice and comment is “’unnecessary’ where repeal is required as a matter of law to ensure consistency with a ruling” of the Supreme Court, the President is essentially stating that his determination makes notice and comment rulemaking both “unnecessary” and “contrary to the public interest,” granting agencies “ample cause and the legal authority to immediately repeal unlawful regulations.” However, the Administration appears to have shifted tack somewhat, as many substantive rules, such as those discussed below, use notice-and-comment procedures.

The structure of the Administrative Procedure Act generally requires notice and comment rulemaking to adopt or repeal rules, to provide public input (including business input) to guide agencies in their work. When the system works well, agencies that draft and finalize regulations collect public comment and must reflect that public comment in the final regulations or explain why it has not been taken – or risk litigation against the new rule.

Over several decades, substantive administrative law has generally developed in a manner similar to the common law, with courts deciding cases on the facts presented and the text of the law and regulations, making distinctions between cases. The Chief Justice’s opinions in both Loper Bright Enterprises and Jarkesy clearly contemplated that courts would hear future cases related to those decisions giving those courts (and ultimately the Supreme Court) the power to refine those decisions and the law.

Here, though, the Administration names cases and instructs agencies to repeal regulations based on them, both removing them from the CFR fairly quickly (unless enjoined by a court) and shifting the ground of future regulation and litigation from the understanding of, for instance, agency powers under Loper Bright Enterprises, to the question of whether a regulation was validly repealed and the appropriate remedy if it was not. For instance, the Memorandum could be used to expand the reach of Students for Fair Admissions to include other areas of civil rights law by analogy, without waiting for the Court to decide.

The Order assumes that its determination of the understanding of these cases thus determines what is “unlawful.” In the meantime, courts could easily become overwhelmed with litigation challenging these repeals, leaving the ultimate decision uncertain as to whether they will should remain in force, with greater uncertainty for business and other regulated entities, and potentially sweeping changes to US law (for instance, on environmental or civil rights law) with little opportunity for prior judicial review and a smaller record on which to conduct that review.

Implementation: Workforce Examples

Several recent regulations from the Department of Labor (DOL) offer examples of how these deregulatory instructions to agencies are working in practice.

Registered Apprenticeship Programs

DOL published a notice of proposed rulemaking (NPRM) to amend 29 CFR part 30, one of the regulations governing registered apprenticeship programs (RAPs) authorized under the National Apprenticeship Act of 1937. The NPRM notes that the original version of part 30, published in 1964, prohibited discrimination based on race, creed, color, or national origin. Revisions made in 1971 added sex and religion to the list of protected characteristics and “introduced a new requirement for apprenticeship programs with five or more apprentices to establish a written affirmative action program (AAP).” Part 30 was further revised in 2016 to prohibit discrimination by age, disability, and genetic information, among other things. It also established new requirements for RAP sponsors, including providing anti-harassment training to program participants and conducting data analysis to determine compliance with stated AAP goals.

The DOL believes the requirements added in 2016 are burdensome and undermine expansion of RAPs. Further, using a key principle of the deregulatory orders, DOL believes the requirements, particularly “those that incentivize or induce sponsors to make decisions based on protected characteristics,” are legally vulnerable in light of recent Supreme Court decisions. 

Thus, using these precedents, DOL proposes eliminating in advance of future Court decisions (but in line with other Executive Orders) requirements that RAP sponsors develop AAPs and evaluate performance against affirmative action goals. DOL also proposes removing part 30 provisions that it views as duplicative of other legal protections, such as § 30.10, which DOL views as duplicative of the Civil Rights Act’s Title VII prohibition on discrimination in employment decisions, and § 30.17, which prohibits intimidation and retaliation against individuals exercising their rights under part 30 and which DOL views as duplicative of other existing Federal and State civil rights laws. This is a change in how regulations are drafted; regulations implementing statutes frequently refer to and reaffirm the underlying statutes.

Application of the Fair Labor Standards Act to Domestic Service

DOL also published an NPRM regarding the application of the 1938 Fair Labor Standards Act (FLSA) to domestic service employees. DOL notes that in 1974, Congress extended FLSA to cover “domestic service” employees but exempted employees who provide “companionship services” from the minimum wage and overtime requirements and exempted live-in domestic service employees from overtime. DOL regulations issued in 1975 defined exempt companions as those who “provide fellowship, care, and protection” for those who are unable to care for themselves provided that “general household work” does not exceed 20 percent of the caregiver’s weekly hours worked.

In 2013, DOL amended the regulation to define the fellowship, care, and protection duties of an exempt companion and tightened the rule, stating that companions would be exempt from FLSA only if they spent less than 20% of their time engaged in care activities. The amendment also prevented third-party employers (such as home care agencies) from claiming the exemption.

DOL is proposing to return to the 1975 regulations, arguing they are more consistent with the statute. DOL also notes that while the 2013 regulations were subject to litigation and upheld by a US Court of Appeals, the Loper Bright Enterprises decision ending “Chevron deference” may make the 2013 regulations legally vulnerable. Any legal vulnerability does not require the repeal, however, unless a court agrees, showing how the Administration is using Loper Bright Enterprises to repeal regulations preemptively on that ground rather than waiting for a court.

Guidance in the Code of Federal Regulations

In addition, DOL proposed removing Title 29, Chapter V, Subchapter B, which contains nonbinding guidance and interpretations of the FLSA. DOL argues that, as described by statute, CFR contains provisions with which have “legal effect”; however, interpretive guidance which has not gone through the notice and comment process does not have the force of law and therefore should not be included because it may confuse regulated entities and the public.

DOL acknowledges that including interpretive guidance in the CFR might once have been necessary when it was the clearest way to share such information with the public. However, it notes that the internet now allows the public to easily access the information on the agency’s website. DOL believes that it is not required to go through the formal rulemaking process to remove this Subchapter as its contents are not formal rules but stated that it has chosen to do so “as a matter of public courtesy.” It also did not indicate that this action would rescind any of the guidance.

The proposed rule would affect a wide range of Department guidance, including that pertaining to methods for calculating an employee's hours worked, overtime compensation, and the classification of employees or independent contractors under the FLSA.  By removing this guidance formally from the CFR, it may seek to put the guidance in a lower category, even though the guidance technically did not bind agency interpretations.

Conclusion

Notice and comment benefits all stakeholders in the regulatory process, notably business. It promotes transparency because comments (other than protected commercial information) are publicly available, and agencies must consider and publicly respond to those comments. The spirit of the Administrative Procedure Act insists that offering all stakeholders the opportunity for public comment produces better regulation and even better deregulation, as opposed to private negotiation or ignoring the interests of certain stakeholders. Interested businesses should consider whether they would like to comment on these types of deregulatory initiatives.