In January 2011, the 112th Congress will convene in Washington, D.C. Although this column is being written prior to Election Day, there are three possible scenarios when Congress meets in January: 1) the Democrats will beat the odds and narrowly keep their majorities in the House and Senate; 2) the Republicans will win a majority in the House, while the Democrats maintain a narrow majority in the Senate; or 3) the Republicans will win majorities in both chambers.

Whichever scenario plays out, at least one result will be the same ¾ more gridlock in the Congress.

Nevertheless, there are critical issues that Congress must tackle, such as surface transportation reauthorization. At a time when the federal deficit is at historic levels and tax increases are not wise economic policy, funding the transportation and infrastructure system will not be easy. Various proposals will be on the table, including an increase in the diesel and gasoline excise tax, a vehicle-miles-traveled tax, and fees on containers, bills of lading, etc.

Congress will also be under pressure from the business community to enact pending free trade agreements with Panama, Colombia and South Korea, which have languished in Congress for over three years. Free trade is part of the engine that drives the U.S. economy and the 3PL warehouse industry. Yet, in September, NBC News and The Wall Street Journal released a survey of Americans’ views on trade. The poll found that 69 percent of Americans think that free trade agreements have cost the country jobs, and 53 percent of Americans think these agreements hurt the country as a whole. Interestingly, the poll also found that opposition to free trade agreements is particularly strong among Americans who define themselves as supporters of the Tea Party movement. Sixty-one percent of self-described Tea Party supporters said they think free trade has harmed the United States-just 4 percent less than union members. Ironically, it could be an unlikely alliance between left-leaning Democrats and right-leaning Republicans that blocks further progress on these important agreements.

Although the Obama administration will likely see a slowing or halt in 2011 to its congressional agenda on labor and employment issues, expect the administration to utilize regulatory agencies to implement its agenda. A case in point is the Department of Labor (DOL).

Although the Employee Free Choice Act will not become law, expect the National Labor Relations Board (NLRB) to attempt to move “card check” forward by regulation. The rulemaking process will be used for establishing broad parameters for union representation elections. The Board could reduce the time target, withhold pre-election bargaining unit hearings and, if necessary, impound ballots. On June 9, 2010, the NLRB issued a Request for Information, seeking information on using electronic voting processes for both onsite and remote bargaining elections, including remote voting by phone or the Internet. Thus, while some changes would require congressional action, the NLRB could enact labor law “reform” using its existing authority.

The Occupational Safety and Health Administration (OSHA) is developing a regulation mandating that employers have a written health and safety program, referred to as an Injury and Illness Protection Program or “I2P2.” This rule would give an OSHA investigator the authority to find that an injury should have been avoided even if it was not regulated under a specific standard. OSHA will also publish a regulation that will require employers to analyze every employee injury to determine if it is a work-related recordable musculoskeletal injury. This regulation would set the stage for OSHA to revive its controversial ergonomics standard.

The Wage and Hour Division at DOL has a highly anticipated rule that would greatly expand recordkeeping requirements under the Fair Labor Standards Act (FLSA) by requiring employers to disclose how a worker’s pay is computed and complete a written “classification analysis” for each worker who is exempt or outside of the coverage of the FLSA.

Gridlock may be viewed as a good thing by those who want to stop the Democrat’s agenda ¾ no more sweeping initiatives with negative consequences for employers. But, gridlock is a double-edged sword. The inability of Congress to address critical issues moves the focus to the regulatory agencies, making 2011 a very challenging year for the 3PL industry. wt



Patrick O’Connor is president of Kent & O’Connor and serves as IWLA’s D.C. representative.