Jonathan Berry is the author of the chapter in the Mandate for Leadership on the Department of Labor (DOL) and related agencies. Berry’s bio in the Mandate for Leadership states that he is “managing partner at Boyden Gray & Associates PLLC.” (See below for information about this law firm.) The bio also states that Berry “served as acting Assistant Secretary for Policy at the U.S. Department of Labor.” (See below regarding Trump’s use of personnel in “acting” roles.)
The bio also states that Berry “clerked for Associate Justice Samuel Alito,” a notably conservative justice, and that Berry “is a graduate of Yale College and Columbia University School of Law.” According to ProPublica, Berry has also worked for two elite law firms: Jones Day and Lewis & Bockius. In sum, Berry’s background argues against his being a champion of labor.
About Boyden Gray
The Boyden Gray law firm web site has this to say about Berry’s contribution to the Mandate for Leadership: “In a chapter on the Department of Labor, the book suggests that because ‘God ordained the Sabbath as a day of rest,’ American workers should be paid extra for working on that day. ‘A shared day off makes it possible for families and communities to enjoy time off together, rather than as atomized individuals,’ it says.” It seems that collectivism is OK in the eyes of conservatives if that collective is a (conservative?) church. Note that the usual concerns of labor, such as pay (regardless of the day), hours, benefits, the right to unionize, and working conditions are not mentioned.
DeSmog has more on Boyden Gray: “C. Boyden Gray…was an attorney and lobbyist and founding partner at the lobbying firm Boyden Gray & Associates in Washington, DC. He had been a lobbyist for a variety of corporations, including Exelon [and] First Energy Corporation.” The firm has a “Koch connection,” which could explain the statement that “more research was needed before action should be taken on climate change.”
In keeping with the conservative principle that the free market solves all problems, DeSmog provides this quote: “If policymakers are serious about cutting carbon emissions, they should give up heavy-handed mandates…in favor of policies that promote competition in the energy sector. Alternative fuels like natural gas have already reduced carbon emissions in electricity generation and could do the same in transportation.”
This argument is disingenuous in more ways than one. First, natural gas is not an alternative fossil fuel; it is a fossil fuel, and the way to reduce carbon emissions is to stop using fossil fuels. Alternative energy is generally understood to mean “alternative to fossil fuels.” Second, policies that promote competition could well be understood to mean policies that support the development of a relatively new renewable energy infrastructure. The fossil fuel industry receives subsidies; it is only fair, therefore, for renewable energy development to be encouraged the same way. Alternatively, if the free market is to be trusted to solve the problem of greenhouse gas emissions, then subsidies to the fossil fuel industry should end. At any rate, the dire problem of global warming is greater than a philosophical debate about economic policy. If governments are needed to step in to help mitigate global warming, so be it.
DeSmog also states that “C. Boyden Gray defended ExxonMobil in the media after the publication of documents showing that Exxon knew about climate change in the early 1980s while promoting climate denial for the next 27 years.”
Further, DeSmog relates that: “Writing at The New Republic, Hanna Rosin reported that Gray was a ‘natural leader’ for a new group titled the Air Quality Standards Coalition (AQSC). The group, formed in 1996, came to represent more than 500 members including Texaco, Teneco, Philip Morris, Chevron, and Monsanto.”
According to Heartland, Boyden Gray’s “grandfather…was President of R. J. Reynolds Tobacco Company,” and according to Real Clear Politics, “his father [was] the second president of the University of North Carolina.”
Evidently Gray’s credentials were a little too aligned with the establishment for some conservatives who fancied themselves outsiders. As Mother Jones relates, there was trouble at one conservative group, FreedomWorks, that involved Gray. According to Mother Jones, “The turmoil within the tea party group leads to the departure of high-profile board members C. Boyden Gray and James Burnley IV.” Such infighting between “establishment” conservatives and the “outsider” conservatives has a long history.
Trump’s Use of “Acting” Personnel
The Trump administration gained attention for its use of top-level personnel in acting capacity, which was seen as a means of bypassing mandated Senate confirmation and allowing Trump to maintain firmer control of federal agency heads by making their positions more precarious. Even the conservative Cato Institute took issue with this practice.
The Chapter on the DOL
The Mandate for Leadership often uses bland and coded language that requires interpretation to make its intent clear. Kieran Howells, writing for HR Grapevine, provides such interpretation of Berry’s chapter on the DOL. Howells writes:
“Key elements of the labor chapter have raised concerns among worker advocates, revealing a disturbing inclination towards undermining labor rights and protections….[Berry’s] track record includes helping to deny guaranteed overtime pay to millions of workers and making it harder for workers to hold companies accountable for actions taken by individual stores, effectively shielding corporations behind the protections afforded to franchises.”
Howells continues: “The labor chapter commences with a focus on blocking critical race theory, limiting anti-discrimination lawsuits, and promoting pro-life policies in the workplace, diverting from traditional labor policy considerations. One proposal calls for the reinstatement of a Trump-era rule that eases the classification of employees as independent contractors, stripping them of the protections enjoyed by traditional employees….Notably, the plan suggests weakening union power, proposing legislation like the Teamwork for Employees and Managers Act….The bill would weaken a section of the National Labor Relations Act that bars company-controlled unions while granting workers limited involvement through ‘employee involvement organizations,’ with recommendations that companies could ignore.”
Writing for Mother Jones, Noah Lanard also offers a decoding of Berry’s chapter in an article titled: “Trump Loyalists Lay Out Plan for Second Term: Gut Worker Protections. A newly released ‘battle plan’ reveals the faux-populist labor agenda if Trump wins in 2024.” The plan would “make it harder for workers to form unions, make it easier for companies to classify employees as independent contractors, and ban the government from collecting race-based employment data in the name of stopping anti-discrimination lawsuits. These policies would be combined with a grab bag of culture war items—like a push for companies to close on the Sabbath—so that Republicans could portray themselves as a traditionalist, but still pro-worker alternative to Democrats.”
Writing for Resilience, Rebecca Gordon breaks down the chapter’s attack on DEI. She writes: “the opening salvo of that chapter is an attack on federal measures to reduce employment discrimination based on race or sex. Its author, Jonathan Berry of the Federalist Society, served in Donald Trump’s Department of Labor (DOL). He begins his list of ‘needed reforms’ with a call to ‘Reverse the DEI Revolution in Labor Policy.’ ‘Under the Obama and Biden Administrations,’ Berry explains, ‘labor policy was yet another target of the Diversity, Equity, and Inclusion (DEI) revolution’ under which ‘every aspect of labor policy became a vehicle with which to advance race, sex, and other classifications and discriminate against conservative and religious viewpoints on these subjects and others, including pro-life views.’
“You may wonder what it means to advance ‘classifications’ or why that’s even a problem. Berry addresses this question in his second ‘necessary’ reform, a call to ‘Eliminate Racial Classifications and Critical Race Theory Trainings.’ Those two targets for elimination would seem to carry very different weight.”
She goes on to claim that eliminating CRT trainings would most likely have little to no effect, given that there is no evidence that CRT trainings are actually happening. (Conservatives have taken to seeing CRT where it does not exist and vilifying it as Marxist and far more influential than it actually is.)
Gordon continues: “On the other hand, the elimination of ‘racial classifications” would be consequential for many working people, as Berry makes clear. ‘The Biden Administration,’ he complains, ‘has pushed ‘racial equity’ in every area of our national life, including in employment, and has condoned the use of racial classifications and racial preferences under the guise of DEI’…Pushing racial equity in employment? The horror!….Berry’s characterization of CRT is, in fact, the opposite of what critical race theory seeks to achieve. This theoretical approach to the problem of racism does not categorize individuals at all, but instead describes structures — like corporate hiring practices based on friendship networks — that can disadvantage groups of people of a particular race. In fact, CRT describes self-sustaining systems that do not need individual oppressors to continue (mal)functioning.
“The solution to the problem of discrimination in employment in Project 2025’s view is to deny the existence of race (or sex, or sexual orientation) as a factor in the lives of people in this country. It’s simple enough: if there’s no race, then there’s no racial discrimination. Problem solved.
“And to ensure that it remains solved, Project 2025 would prohibit the Equal Economic Opportunity Commission, or EEOC, from collecting employment data based on race. The mere existence of such ‘data can then be used to support a charge of discrimination under a disparate impact theory. This could lead to racial quotas to remedy alleged race discrimination.’ In other words, if you can’t demonstrate racial discrimination in employment (because you’re enjoined from collecting data on the subject), then there’s no racial discrimination to remedy. Case closed, right?”
Project 2025 takes a similar approach to climate change. The Mandate for Leadership advocates shuttering an agency that gathers data on climate change, for example, taking a head-in-the-sand approach. If there’s no data regarding a problem that conservatives want to pretend does not exist, then the government cannot act on that data.
Rather than address the actual concerns of labor (such as working outdoors when the weather is hot), Berry often references religious and cultural issues. For example, he writes that policy should be geared to “restore the family as the centerpiece of American life” and “The Judeo-Christian tradition, stretching back to Genesis, has always recognized fruitful work as integral to human dignity, as service to God, neighbor, and family.” This also appears in the DOL chapter: “God ordained the Sabbath as a day of rest, and until very recently the Judeo-Christian tradition sought to honor that mandate by moral and legal regulation of work on that day….Unfortunately, that communal day of rest has eroded under the pressures of consumerism and secularism, especially for low-income workers.”
The concern of Ivy-league-educated, big-corporate-law-firm-employed, six-figure-income-making Berry for low-income workers is duly noted.
In addition to DEI and CRT, another three-letter acronym that bothers conservatives is ESG. Regarding ESG, Berry writes: “DOL should prohibit investing in ERISA plans on the basis of any factors that are unrelated to investor risks and returns.” Regarding alternative views, he acknowledges that in the opinion of some conservatives, “it is not wrong for retirement plans to offer ESG investment options so long as individuals explicitly acknowledge and choose to pursue investment options that do not exclusively maximize pecuniary gains.”
In other words, some conservatives are willing to stick to their free-market guns enough to acknowledge that investors should be given the choice to favor companies with ESG policies, while other conservatives allow their dislike of ESG to overrule their commitment to free market principles.
In keeping with ostensibly pro-family (but not LGBT and single-mother families) conservatism, Berry is willing to stand up for pregnant workers, but he makes no mention of the fact that the United States is unique among developed nations in not having paid family leave. He argues for policies that “Promote pro-life workplace accommodations for mothers.” By this he means enforcement of current law. Conspicuous by its absence in the chapter on the DOL is any mention of paid family leave. As Pew reports: “the U.S. is the only country among 41 nations that does not mandate any paid leave for new parents.” As for workers who are pregnant but would like to choose not to have children that they cannot afford to raise (or whose pregnancy is life-threatening or the result of rape), Berry writes that the “law should also clarify that no employer is required to provide any accommodations or benefits for abortion.” Further, he advocates for keeping “anti-life benefits out of benefit plans.” In other words, employer-provided health insurance should be specifically allowed to carve out an exception so that abortion is not covered, and such insurance should be allowed not to cover birth control.
Berry further argues that state laws that preclude abortion and surrogacy provisions in employee health plans should trump federal law that allow for such provisions. (When state law provides for something conservatives like, state law should prevail over federal. But when federal law provides for something conservatives like, in contrast to, for example, the law of a blue state, federal law should prevail.)
Berry also states that the DOL should “Provide robust protections for religious employers. America’s religious diversity means that workplaces include people of many faiths and that many employers are faith-based.” Those protections should concern “traditional beliefs about marriage, gender, and sexuality.” In other words, religious freedom means freedom to discriminate against LGBT people (and single mothers) and to refuse to provide insurance coverage for such things as birth control.
Frequently in the chapter on the DOL, Berry adds a paragraph offering an alternative view held by conservatives regarding his policy recommendations. (Alternative views held by liberals, union members, union leaders, or people of working-class background are not included.)
Berry also advocates for “encouraging the role of religious organizations in apprenticeships.” That may sound OK, but doing so raises the issue of religious organizations shutting out LGBT people, single mothers, or people with the wrong religious views from apprenticeship programs with the blessing of the government.
While Berry seems to have avoided making a public record of more extremist views espoused by, for example, Ken Cuccinelli and William Perry Pendley, his chapter on the DOL is revealing enough in its favoring right-wing religion in place of labor policy. In addition, his employment at a law firm with origins in climate denialism place him well within the general ideological inclinations of Project 2025.
