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HOS Change Kicks Off New Agenda

aa-12-15-16Although much of President-Elect Donald Trump’s regulatory agenda is subject to speculation, some details are becoming clearer about where his Administration and the new Republican Congress will be heading.

In the last issue we took a close look at his general approach to federal regulation, and what he is expected to do regarding one of the most important promises of his campaign: sweeping immigration enforcement and general regulatory reform (AA, 11-30-16, P. 1).

Trump’s Republican allies in Congress have done their part by rolling back the truck driver hours of service regulations to what they had been in 2013, resulting in suspension of the 34-hour restart provision unless a government study now underway can show that the restart provision substantially improves safety.

This was included in legislation that continues funding for the federal government to April 2017. A temporary suspension by Congress of the restart provision had been in effect since December 2014.

The restart provision was the most controversial portion of HOS changes adopted in 2013, and was estimated to have added about 3% to the cost of long-distance shipping by truck during the period it was in effect.

Eliminating the 34-hour restart drew praise from American Trucking Associations President Chris Spear. “Reverting back to the pre-July 2013 restart shifts the emphasis back to safety by removing flawed data from the rulemaking process.”

According to Spear, “The entire industry will now be able to comply with this rule thanks to a common sense approach championed by a bipartisan group of legislators.”

However, he stresses that the industry must seek to overturn state laws that were adopted in the wake of the federal HOS rule.

“While ATA sought the same for preempting states that have added redundant rest break requirements on top of the existing federal standard, ATA will continue to push hard for federal preemption of specific state laws when the 115th Congress convenes next month,” Spear says.

Look for OSHA Changes

Although President-Elect Trump will not take office until late next month, some experts already predict substantial changes in a number of areas impacting employers, including the direction and supervision of Occupational Safety and Health Administration enforcement activities.

“We anticipate that OSHA is likely to pivot away from the enforcement heavy agenda to a more business-friendly agency,” point out attorneys with the law firm of Seyfarth Shaw.

Attorney Travis W. Vance of the Fisher Phillips law firm observes, “Trump likely will streamline OSHA, repeal some its recent rules, including those relating to increased penalties and reporting requirements, and refocus the agency on high-hazard enforcement.”

Trump’s choice of Andrew Puzder, CEO of CKE Restaurants, as the new Secretary of Labor was greeted with hand-wringing by those on the left who believe the Labor Department should serve only as a proponent of unions and their entire agenda.

During his campaign, Trump said he favored regulations that protect health and safety, so don’t expect to see OSHA completely neutered by the new Administration.

On the other hand, we can expect that we won’t see more electronic reporting rules to feed company information to unions and pro-union tort lawyers, or attempts to stretch the agency’s reach to independent contractors and other gig workers.

You also can definitely count on OSHA’s tight working relationship with the Mexican government to come to an end fairly quickly (See Page 4).

Other items expected to receive renewed scrutiny include the recently imposed anti-retaliation rules that prohibit post-injury drug testing of employees except under certain circumstances.

It also seems likely that Trump will overturn President Obama’s executive order requiring federal contractors to disclose all labor law violations, such as OSHA citations, when they bid on certain projects, even when those citations are not final and are being challenged by employers.

Whatever happens, important changes are coming at DOL and OSHA. “However, we also know that the recently increased OSHA penalties are the law, therefore, will not likely be rolled back under the Trump administration. We also believe that it is unlikely that the five year look back period for “repeat” violations will change,” note the Seyfarth Shaw attorneys.

They add that OSHA’s stress on whistleblower and anti-retaliation claims no longer will be a focus. “Rather, we anticipate OSHA returning to more business-friendly Voluntary Protection Program and cooperative compliance programs over time.”

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