Harming Workers Until the Very End

Bush’s Midnight Rules Changes and Weak Enforcement of Worker Protection Laws Jeopardize the Rights of Ordinary Americans

David Madland and Karla Walter detail how the Bush administration’s midnight regulations further weakened workers’ rights and protections.

The <a href=Labor Department building in Washington, DC. (Flickr/NCinDC)" data-srcset=" 610w, 610w, 610w, 500w, 250w" data-sizes="auto" />
The Labor Department building in Washington, DC. (Flickr/NCinDC)

ReportAfter Midnight: The Bush Legacy of Deregulation and What Obama Can Do

ReportCleaning Up and Launching Ahead: What President Obama Can Learn from Previous Administrations in Establishing His Regulatory Agenda

Report: Enforcing Change: Five Strategies for the Obama Administration to Enforce Workers’ Rights at the Department of Labor (CAPAF)

The Bush administration published a flurry of new regulations in the final months of its term that weaken protections for consumers, patients, the environment, and especially workers. Workers, already threatened by the Bush Department of Labor’s weak and inadequate enforcement of worker protection laws, faced a barrage of midnight regulations from DOL. It is now up to the Obama administration to reverse the damage caused by these rule changes and improve the enforcement of worker protection laws already on the books.

A new report from the Center for American Progress and OMB Watch, “After Midnight: The Bush Legacy of Deregulation and What Obama Can Do,” highlights the Bush administration’s rush to pass rules across all areas of government, enshrining its hands-off ideology in the final months of its tenure. According to, the Office of Management and Budget’s Office of Information and Regulatory Affairs approved 157 final rules from September 1, 2008 to December 31, 2008—nearly a 90-percent increase over the same period in 2007, which saw 83 final rules. This activity is common at the end of a president’s term, but the Bush administration placed a unique focus on rules that would deregulate important public protections rather than deliver improved oversight or increased public benefit.

The Bush administration’s DOL recently published new regulations that include provisions that make it harder for workers to take unplanned, paid leave to care for themselves or an ill family member, weaken DOL protections for immigrant workers in the United States on legal work visas, and expose longshoremen to dangerous container lifts.

The table below lists midnight regulations at the Department of Labor that jeopardize worker protections, although midnight regulations published at other agencies also endanger Americans in their workplaces, including a Department of Transportation rule reducing mandatory rest times for truck drivers and a Department of Homeland Security regulation that may increase the number of legal residents discharged by employers based on faulty data that their social security numbers do not match social security records.

Bush’s midnight regulations weaken worker protections at the Department of Labor

Regulation Agency Description Final publication Effective date
Family and medical leave Wage and Hour Division The rule limits employee access to family and medical leave. Among other things, it makes it more difficult for workers to use paid vacation or personal time to take leave and allows employers to speak directly to an employee’s health care provider. The rule also expands leave opportunities for military families. 11/17/2008 1/16/2009
Privacy of payroll records under federal contracts Wage and Hour Division The rule exempts contractors covered by the Davis-Bacon Act and the Copeland Anti-Kickback Act from including the social security numbers and home addresses of workers in weekly payroll record reports to the federal government. This will make it more difficult for the government to verify the accuracy of reports. 12/19/2008 1/18/2009
Revisions to the H-2B guest worker program Employment and Training Administration The rule eliminates the agency certification process of employers seeking H2-B visa workers—including certification that no qualified U.S. workers are available. The rule will substitute agency certification with attestations by employers that they meet program requirements. 12/19/2008 1/18/2009
Vertical tandem lifts Occupational Safety and Health Administration The rule allows maritime port operators to lift two or more empty containers secured together at the same time, exposing workers to an increased danger of hoist failure. 12/10/2008 4/9/2009

A more comprehensive list of Bush’s midnight rule changes can be found in “After Midnight: The Bush Legacy of Deregulation and What Obama Can Do.”

Bush’s ideology of hands-off government drove DOL’s eight-year effort to weaken the enforcement of worker protection laws. DOL adopted enforcement policies throughout the Bush administration’s tenure that reduced enforcement staff capacity to investigate scofflaw employers, employed inappropriately low penalties on even the most egregious violations, ignored innovations in data collection and strategic employer targeting, and disregarded widespread abuse of vulnerable immigrant workers.

The Bush administration’s chronically weak enforcement has meant that workers too often face dangers at work and are not able to collect wages owed to them; law-abiding business owners have difficulty competing with scofflaw employers who can lower their costs by ignoring workplace rules; and taxpayers foot the bill when lawbreakers’ employees are injured on the job. “Enforcing Change: Five Strategies for the Obama Administration to Enforce Workers’ Rights at the Department of Labor,” released in December 2008 by the Center for American Progress Action Fund, details Bush’s record of lax enforcement and highlights strategies for improvement.

The Obama administration has an opportunity to significantly improve government oversight of worker protections—both by reversing Bush’s problematic rule changes and improving enforcement of current worker protection laws. President Obama should not just reverse Bush policies in these two arenas; he must move forward with a positive administrative agenda that recognizes a fundamental responsibility to protect American workers’ health, safety, and general welfare.

The Obama administration should advance regulatory decisions that are responsive to public need, transparent, and arrived at through a well-informed, flexible decision-making process with full public participation. It also means that President Obama’s DOL must put forward an enforcement agenda that improves overall employer compliance with worker protection laws and protects the most vulnerable workers.

Now is the time for President Obama to break from the Bush administration’s legacy of hands-off government and create a federal administration that values a fair workplace where workers’ rights are respected and enforced.

ReportAfter Midnight: The Bush legacy of deregulation and what Obama can do

ReportCleaning Up and Launching Ahead: What President Obama can learn from previous administrations in establishing his regulatory agenda

Report: Enforcing Change: Five Strategies for the Obama Administration to Enforce Workers’ Rights at the Department of Labor (CAPAF)

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David Madland

Senior Fellow; Senior Adviser, American Worker Project

Karla Walter

Senior Fellow, Inclusive Economy