Labor Pains
The Trump administration’s policies and impact on labor
By Kim R. Smith, Esq
Date Published: 6/1/2017

When first asked to write an article discussing how President Trump’s policy decisions to date have impacted labor, I thought, “Well this is simple: To date, there has been no impact on labor because the Administration has not yet implemented policy or regulatory changes related to employment and labor. The End.” However, upon reflection, there has been some activity, and with the recent confirmation of a new Secretary of Labor, it is likely that we will begin to see a greater impact within the immediate months to come. 

During the first months of his tenure, despite a quick turn-over in his initial nomination for Secretary of Labor and other personnel-related issues, President Trump reversed multiple Obama-era regulations using the authority given to Congress under the Congressional Review Act (CRA). The CRA, which was signed into law by President Clinton in 1996, allows Congress to overturn rules promulgated by federal agencies 60 days after such rules are reported to Congress. With the support of a Republican-controlled Congress, President Trump has been able to use the CRA to implement swift changes to rules that were implemented in the last months of the Obama Administration. 

President Trump acted quickly in rolling back three specific employment regulations that were viewed by businesses as burdensome and hindering economic growth. One regulation rolled back was the Fair Pay and Safe Workplace rule, which is commonly referred to as the “Blacklisting Rule.” The rule was issued as an Executive Order by President Obama in 2014, but significant portions of it were on hold as of October 2016 due to a decision arising out of federal court in Texas. Under the rule, federal contractors were required to report to the federal government all violations occurring under multiple federal laws (and similar state laws) within a three year window regardless of whether such violations were under existing litigation or had been settled. Based on the reports and a contractor’s history of violations, the federal government would then determine whether a federal contractor could be awarded additional contracts. The impact of this restrictive rule was significant, and with its roll back, the opportunities for companies to obtain federal contracts is more open, creating the potential for economic growth in many areas.

The second rule that the President rolled back was a rule (known as the Volks rule) initially promulgated by the Occupational Safety and Health Administration (OSHA), which required OSHA to issue citations to employers that failed to record work-related injuries and illnesses over a five year period … contrary to a six month statute of limitations in the Occupational Safety and Health Act. OSHA issued the rule in mid-December 2016, with an effective date of January 18, 2017. The rule was a response to a 2012 court decision holding that OSHA could not issue citations for an employer’s failure to record injuries or illnesses beyond the six month statutory period. The rule was contrary to the court’s decision and would have allowed OSHA to cite employers if they failed a continuing obligation to create and maintain an accurate record of each recordable injury or illness for five years. Although employers are still required to maintain records of injury and illness over five year periods, with President Trump’s reversal of the Volks rule, employers can no longer be cited beyond the six month limitations period. 

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