This week President Donald Trump nominated attorney Jonathan Berry to be the next solicitor of the Department of Labor (DOL). Berry worked in the department during the first Trump administration, and he was the sole author of Chapter 18 of Project 2025’s treatise Mandate for Leadership, which contained a set of policy recommendations for the DOL and related agencies (EEOC, NLRB, etc.). With his nomination, we thought it would be helpful to review Berry’s recommended policy changes for the DOL.
What does Chapter 18 say?
Much of Chapter 18 is dedicated to rolling back DEI initiatives, and the current administration has clearly made that a priority during the first three months of 2025. Other changes proposed by Berry include:
- Overtime changes – Several proposals are focused on using the DOL to collect more data on the “state of the American family” (Mandate, p. 588) and refocus regulations to have an impact on family lives. Examples include allowing non-exempt workers to elect to receive paid time off instead of overtime, incentivizing on-site childcare, forcing employers to pay overtime rates for employees that have to work on Sunday (or Saturday depending on the particular religion), limiting overtime to employees who work remotely unless they work over 10 hours in a specific day, and removing home offices from OSHA regulations.
- Worker independence – As we reported recently, the DOL will likely rescind the Biden administration’s 2024 independent contractor rule and return to the test from the first Trump administration in 2021. Berry’s proposals include that change as well as establishing a “bright-line test” that would determine employee or contractor status across all federal laws, and creating a safe harbor for businesses that provide certain benefits (such as healthcare or retirement programs) to independent contractors.
- Protecting small businesses and entrepreneurship – Berry champions the franchise structure as “a proven business model” for small businesses and proposes that the DOL return to a definition of joint employment based on “direct and immediate control” rather than a variety of direct and indirect control factors. Other proposals include a lower salary threshold for exempt status in certain geographic regions, such as the Southeast, and giving employers the flexibility to calculate overtime over a longer period of time (so extra hours worked one week could be offset by lesser hours in a subsequent week without triggering overtime obligations).
- Reducing hazard regulations – Berry proposes the relaxation of current regulations limiting teenage workers from certain inherently dangerous jobs so long as the teenager receives training and parental consent.
- Prioritizing American workers – Another key focus of Chapter 18 is a series of immigration changes to increase the utilization of American citizens, including limitations on the H-2A visa program, giving employers the freedom to prefer to hire American workers over workers from other countries, and even mandating a minimum percentage of American workers on federal contracts (up to 95% over a 10-year period).
Wait and See
The Trump administration acted with lightning speed during the first three months of 2025 to implement many of the specific DEI recommendations in Chapter 18 of Project 2025’s treatise. Now that Berry has been appointed the chief legal officer for the DOL, it will be interesting to see how many of these other initiatives are implemented in the months and years to come.