Source: Lisa M. Keefe, MEATINGPLACE, 1/31/18

Under the Trump administration, the Occupational Safety and Health Administration is a somewhat kinder and gentler agency to private industries, but will continue regulatory enforcement operations apace, according to Neil Wasser, chairman of the executive committee of Constangy, Brooks, Smith & Prophete LLP in Atlanta.

Speaking at the Worker Safety Conference before the opening of the International Production and Processing Expo here, Wasser provided his interpretation of the first year of President Donald Trump’s administration where OSHA is concerned. Notwithstanding the agency’s lack of a permanent top executive — nominee Scott Mugno’s confirmation didn’t make it out of Congress in the last session, but is expected to be addressed in the new year — OSHA’s enforcement efforts have not flagged, Wasser said.

“There’s no sense that there will be dramatic cuts to the OSHA enforcement budget,” he said. “But where the last administration was about enforcement, this one will be about both enforcement and employer compliance assistance; not 'instead of’ enforcement but 'in addition’.”

For example, under the Obama administration, the public enforcement reports from OSHA regularly practiced “regulation by shaming.” That is, announcements included adjectives and information in releases that pointed out that the company had racked up X number of violations over a certain period, for example (“The second violation inside of 10 days”). While the language always was hard-hitting, Wasser said, in reality about half of initially reported fines are reduced or the violation dropped altogether, and the agency did not issue a release about that.

“Since Trump, OSHA’s releases have taken a different tone,” one more supportive of industry and more cooperative, Wasser said. Releases in 2017 tended to tout government-industry cooperative programs, reminders to workers to take precautions in bad weather, and training programs that OSHA was making available.

As 2018 dawned, OSHA’s public reports again took a harder edge, focusing on fines and “continued violations,” he said.
“This is a subtle change and we’ll have to watch and see what happens,” Wasser said.

Other changes
On the other hand, a box on the agency’s home page that had a running tally of workplace fatalities nationwide has been replaced with one that has a running feed of “cooperative programs that work with and recognize employers who create safe workplaces.”

Also, where the Obama administration insisted that all company violations be classified as “willful” or not, the Trump administration has re-introduced the use of the “unclassified” violation. OSHA citations that described a violation as “willful” opened the door to further legal action by the employee, for example, Wasser said, and employers would fight to keep the language out of any settlement.

Using the term “unclassified” carries less baggage and “It will make resolution of these high-dollar cases a little easier.”
 

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