This is just crazy
By Nathan Mehrens
In what is yet another example of the Obama Administration’s pattern of making things up as they go along, the U.S. Department of Labor published a “policy statement” in the Federal Register on October 9, announcing that they will not enforce, for a while, a complex regulation dealing with the Fair Labor Standards Act (FSLA). This is a regulation that they have claimed all along was very important.
The proposal that became this regulation was so outrageous that it could have served as the basis of a twisted comedy skit for lawyers, if not for the serious real-life implications. The regulation deals with the application of the FSLA to persons who provide “companionship” services to the elderly or infirm, i.e., the “employers.”
Americans for Limited Government submitted detailed comments to the Labor Department showing the absurdity of the proposal.
How stupid is this??? For example, the regulation would apply the FSLA if the companion baked cookies that were not consumed in one sitting, while arguably not applying the FSLA if the cookies were consumed in two or more sittings. The question of who actually ate the cookies would have also determined if the FSLA applied. If the person being cared for ate them all, then only the one sitting analysis would have been needed. If, however, a third person ate one or more of the cookies then the FSLA would likely have been applied, regardless of whether the cookies were eaten in one sitting.
Additionally, the application of the FSLA to activities, such as using a vacuum cleaner, were to be taken to extremes. If the person being cared for spilled some food on themselves and the floor, then the FSLA would have applied if the companion used a vacuum cleaner to clean the spilled food off of the floor. The FLSA, however, would not have been applied if the companion only cleaned the spilled food off of the person for which care was provided.
And, that’s just part of it. This absurd regulation would have created tremendous uncertainty in knowing when the FSLA actually applies to activities. To the Labor Department’s credit, they did acknowledge our comments and take then into consideration in making the final regulation less bad. They did this while maintaining that the regulation was important and needed.
All this brings us to their “non-enforcement” statement that was referenced above. Apparently, the Obama Administration, not content to just fail to faithfully execute laws as written by Congress, also feels the need to not enforce regulations which it has promulgated.
The regulation at issue here is unnecessary and harmful. It should be rescinded, not just left dormant. A non-enforcement policy fails to faithfully execute the laws and is a dangerous path. Suppose that a new president is elected who unilaterally decides to not enforce complex securities or environmental regulations. If that was to occur, the outcry from the left about failure to faithfully execute the laws would be deafening. Somehow I doubt that the outcry on this FSLA issue will be all that loud.
A major cause of problems that occur in the regulatory context is a lack of specificity in laws passed by Congress — laws which often delegate substantial leeway to the Executive Branch to promulgate regulations. Congress generally sets wide parameters and then tells the agency with jurisdiction to fill in the gaps through regulations. This leads to the absurdity discussed above. Instead, Congress should take a hard look at these issues, reassert its responsibility as the branch of government that is supposed to pass laws, and stop passing the buck to agency “experts.” Doing so will better enable the people to exercise political accountability over those who write the laws affecting their lives.