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The Future Is More Certain Than You Think

Nobody knows what may happen after the November elections, but you can count on plenty of regulatory activity taking place this year.

Although a lot of people are making confident predictions about the mid-term elections this November, at this point the truth is that no one really knows what will happen.

However, when it comes to regulations and laws that impact business, it’s safe to predict that we will see a continuation of the federal regulatory reform that began in 2017, with no big surprises—which takes some guts to say during the Trump presidency where anything can happen on any given day, and frequently does.

Last year the Republican Congress passed a number of laws to ease the federal government’s regulatory burden on businesses, especially when it comes to telling employers what they can or can’t do. The ultimate legislative achievement was the business-friendly tax reform law enacted in December.

The Trump administration forged ahead in pursuit of its own agenda throughout 2017. Behind those photo ops with the President posing in front of head-high stacks of paper representing the reduction of federal regulations was some solid success in shrinking the mountain of federal rules, including those that impact employers.

One challenge we hope the Trump administration can overcome is the slow process of getting his appointees in place that plagued his first year in office and still lingers in some areas. The reversal of Obama-era policies at the National Labor Relations Board (NLRB) in the few weeks last December when it had a Republican majority and a new Republican General Counsel shows what can be accomplished when those appointees are in place.

However, the fact that the five-seat Surface Transportation Board, responsible for regulating the nation’s freight railroads, has had only had two members since last September is a prime example of this challenge. On the plus side, President Trump has been steadily nominating and the Republican Senate has been confirming a raft of more conservative federal judges, including putting Neil Gorsuch on the Supreme Court.

Restoring Balance

When it comes to the NLRB, you can expect last year’s “December Revolution” to continue, correcting the severe tilt in favor of labor unions that employers suffered from during the Obama years. The Republican board is not ploughing new ground, but is simply restoring standards and embracing precedents that had existed for decades before the abrupt, radical changes wrought by the Obama-era board.

In just a few days in December the Republican NLRB reversed the previous board’s extreme pro-union rulings concerning joint employer status and “micro” unions. The board also opened a proceeding expected to eventually reverse the “ambush” or “quickie” election rules.

The Obama board held that a company was a joint employer even if it didn’t exercise control over a temp leasing company staff, but there was a remote chance it might exercise that control at some time in the future. The micro union decision allowed unions to get a foot in the door in workplaces where the majority of workers rejected unionization by permitting a smaller group of the same workforce to organize, such as maintenance workers in an assembly plant.

Employers facing unfair labor practice charges will get some relief from changes made by new General Counsel Pater Robb. In 2012, an Obama-appointed counsel limited the previous policy of deferring to arbitration procedures in collective bargaining agreements. Robb reversed that change.

He also rescinded a 2011 position holding that all settlement agreements must include “default” language. This Obama-era directive said that if the party facing charges (almost always an employer) violates any terms of the settlement agreement, then it consents to a default judgment granting the allegations that were brought against it.

The Department of Labor (DOL) also has backed off of some the extreme positions it took when Obama was President, such as rejecting independent contractor status. However, it will continue to enforce the laws and regulations already on the books, including the Family Medical Leave Act.

The overtime rules adopted in 2016, which never went into effect because of a court stay, are dead for all intents and purposes. However, Trump’s Labor Secretary Alex Acosta said his department may revisit what should be the proper annual wage above which employees are considered exempt.

Safety & Civil Rights Still Priorities

One division of DOL that saw a change in emphasis but not in mission is the Occupational Safety and Health Administration (OSHA), which remained nominally leaderless for more than a year—one more example of Trump’s difficulty in getting his appointees in place.

With no chief administrator but other managers taking supervisory roles, the agency’s employees still carried out their duties—as did those states which are primarily responsible under law for enforcing federal workplace safety laws.

OSHA has backed off its emphasis on “public shaming” of employers prosecuted for safety violations. It also revived previously established but largely ignored programs for improving safety through working with employers. While no major rulemakings are expected, the controversy over electronic reporting of illnesses and injuries lingers, and the new OSHA is seeking ways to settle it.

A big question is what to do with the electronic reporting rule proposed during the Obama administration, requiring employers to file regular injury and illness reports over the Internet and make them available to the public—including tort lawyers and union organizers.

OSHA plans to advance a proposal to eliminate the requirement that employers with 250 or more employees need to electronically submit their OSHA 300 logs of work-related injuries and illnesses and 301 injury and illness incident reports. Only the 301A summary of work-related injuries and illnesses would be filed that way.

In addition, if you are an employer subject to OSHA’s slip and fall prevention rules that first went into effect in January 2017, remember to mark your calendar to make sure that you have installed fall arrest and ladder safety systems on existing and new fixed ladders no later than November 19.

The Federal Motor Carrier Safety Administration (FMCSA), part of the Department of Transportation, does not plan to initiate any new major rulemakings this year. Officials say the agency is likely to make some small adjustments to the Hours of Service regulations for commercial drivers.

They also intend to devote resources to enforcing the Electronic Logging Device rule that went into effect in December. FMCSA also is targeting the jump in fatal truck and bus accidents to a total of 4,079 in 2016 (the most recent available numbers), which represented an 11.6% jump from the previous two years.

The agency also will pursue additional research into the controversial Compliance, Safety, Accountability program, looking into performance-based methods for evaluating trucker safety programs.

Significant resources are being devoted to research on the safety of autonomous vehicles as well.

When it comes to civil rights in the workplace, it’s not news that the No. 1 issue is sexual harassment. The new tax reform law eliminates the tax deduction for those harassment lawsuit settlements that contain confidentiality clauses. Congress is considering legislation to eliminate forced arbitration clauses in employment agreements for sexual harassment and gender discrimination cases.

Equal Employment Opportunity Commission (EEOC) enforcement priorities will remain pretty much the same, with some fine tuning. Regarding sexual harassment, the commission is looking for claims that raise a policy, practice or pattern of harassment.

In addition, EEOC will address discrimination against Muslims and Sikhs, or persons of Arab, Middle Eastern or South Asia descent. Other priorities are cases alleging discrimination against Native Americans and migrant workers.

When it comes to enforcing the Americans with Disabilities Act, the new EEOC intends to focus more narrowly on qualification standards and inflexible leave policies that impact disabled workers.

Keep an eye on the U.S. Supreme Court, too. It is eventually expected to take up the issue of whether federal civil rights law protects gay employees. It already is reviewing whether employees who entered into employment arbitration agreements can file class actions or collective litigation in federal courts, a position challenged by the Obama-era NLRB. 

David Sparkman is founding editor of ACWI Advance, the newsletter of the American Chain of Warehouses Inc., as well as a member of the MH&L Editorial Advisory Board.

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