Top DOL Lawyer Urges Relaxed Enforcement in Unionized Workplaces

Labor Department attorneys should refrain from pursuing legal enforcement in unionized workplaces, Labor Solicitor Jonathan Berry said in an internal memo reviewed by Bloomberg Law.

The dispatch, sent to DOL regional attorneys Thursday, offers an early glimpse into the priorities of Berry, who authored the labor chapter of Project 2025 that called for broad scale changes to federal labor laws and federal agency oversight.

Attorneys shouldn’t prioritize cases in unionized workplaces because “unions are better situated on the ground to evaluate and rectify harms to workers,” Berry wrote. This would include enforcement of wage and hour, child labor, and worker safety laws.

But he said that consideration could be waived in situations where there’s evidence the union isn’t fairly representing workers’ grievances or if the remedies are insufficient.

The memo also focused on enforcement of large employers that wield the most “market power,” as first reported by Bloomberg News, but emphasized that the department should practice compliance assistance and recognize that companies want “partnership, not conflict.”

Berry hinted that the DOL should be more lenient to employers that make a “colorable” religious freedom argument, instructing attorneys to send cases to the solicitor’s office to evaluate whether enforcement would risk burdening the company.

Additionally, the memo sharply criticized the Biden administration’s policies on immigration and diversity, equity, and inclusion initiatives, disparaging its focus on “safe spaces.”

“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,” Berry said.

Berry further criticized the use of environmental, social, and corporate governance considerations in retirement investment by fiduciaries and unions. The DOL’s Employee Benefits Security Administration issued a rule under Biden that said ESG could sometimes be considered as tiebreaking factor in 401(k) investment choices, a regulation the Trump administration has pledged to eliminate.

The previous administration’s approach “encouraged self-dealing by the managerial class” around Americans’ retirement accounts, Berry said.

During his confirmation hearings last year, members of Congress expressed concerns about Berry’s past work with Project 2025. He attempted to distance himself from the positions presented in that plan, and said he wouldn’t push policy changes as DOL’s top attorney.

Agency representatives didn’t immediately respond to requests for comment on the memo.