These comments are submitted on behalf of the National Federation of Independent Business, the nation's largest small business advocacy organization comprised of approximately 300,000 small business members nationwide.
Since January 2009, "government regulations and red tape" have been listed as among the top-three problems for small business owners, according to the NFIB Research Center's monthly Small Business Economic Trends survey. Compliance costs, difficulty understanding regulatory requirements, and extra paperwork are the key drivers of the regulatory burdens on small business. This is not surprising, since it's the small business owner, not an in-house human resource officer or attorney, who has to understand what regulations apply to the business and ensure compliance with them.
As the Department of Labor develops plans to help get American back to work, NFIB believes that when it comes to the laws the Department of Labor is charged with enforcing, the agency should use its enforcement discretion to relieve the burden small business owners face as America returns to work and beyond. This is particularly true for the new mandates in the Families First Coronavirus Response Act, which small business owners across the country are still learning about and trying to understand.
NFIB recommends -- as a general enforcement protocol for businesses with 50 or fewer employees – DOL give small business owners the chance to correct the mistake first. For these businesses, citations should only be issued for willful violations of DOL regulations.
Conduct should be deemed willful if: (i) the person charged with violation of a rule knew that his conduct was prohibited by the rule; or (ii) a reasonable person situated similarly to the person charged with violation of the rule would have known that his conduct was prohibited by the rule. The mere demonstration of publication of a rule in the Federal Register or the Code of Federal Regulations should not suffice to demonstrate that a person knew, or that a reasonable person would have known, of the existence or content of the rule. The demonstration of a willful violation outlined here should be in addition to any other requirements imposed by law or rule.
Thank you for your consideration of these comments. Do not hesitate to contact me if I can provide additional information or answer any questions you may have.