Safety Perspectives From the Dallas Region: Trump Executive Orders and Their Impact

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John Surma: Welcome back, everyone. This is another episode of the series of podcasts that Frank Davis, my Dallas partner, and I, John Surma, Houston attorney at Ogletree Deakins. This episode is the first of 2025, and we’re here today to talk a little bit about some of the activities since the date of the inauguration. Frank, it’s been an interesting time.

Frank Davis: Yeah, hey, John, happy to be back here in 2025 with you. It has been an interesting time, super fast pace, lots of new events to keep up with with regard to orders coming out of the executive office since President Trump took office. I think it’s probably a good time to talk about where we are now, after the inauguration.

You know, that one thing I should point out is that the Dirty Steel-Toe Boots, they had a podcast a little while back that does some prediction. That’s also a helpful series to listen to with regard to more of the national implications. We’re focused here on some of the local implications in our region, the Dallas region, of which I think there are going to be many, especially stemming from the memos regarding staffing of the government as well as the executive order regarding regulations and what this administration expects to happen with proposed regulations that were pending prior to the inauguration.

John Surma: Well, let’s transition, step off from there. Let’s start off with what I’ve kind of characterized in big, broad terms as the staffing-type issues that relate to both the executive order with regard to the hiring freeze, with regard to the, quote, unquote, “fork in the road” email that went out recently, and some of the other things that we’ve heard relative to staffing issues overall, and in particular with a focus on the Dallas region.

A lot of folks look at, take Texas as a for example, or for instance, and yeah, there’s nine area offices. People think that that’s a lot of area offices without kind of thinking about how large Texas is, both from a geographic standpoint as well as a population standpoint. The state of Texas is now over 30 million people, now has, what, four of the top 10 largest cities in the country.

So, yeah, that nine area offices seems like a lot, but when you start talking about the amount of geography that’s being covered and the amount of people that are covered, which also translates into the number of workplaces that are being covered, it’s really not that great. And before we really get into this, we probably ought to talk about Dallas region staffing prior to the inauguration, which in many offices was actually lower than what people would expect.

Frank Davis: Oh, I think you’re right. Yeah, we’ve talked about this in previous podcasts. I think our last podcast, we talked about how we’ve seen quite a lot of attrition, especially among compliance, safety, and health officers that were exiting the agency and moving either to other agencies or to private sector jobs for whatever reason.

And you could speculate about the reasons for the migration, but we’ve also had openings at middle management and upper management positions in OSHA where we’ve seen movement of compliance officers out of the compliance role position and into a managerial position. What that ultimately means is while each of these offices, each these nine offices in the Dallas region are covering lots and lots of counties and lots and lots of real estate, it’s a big area, and you’ve got-

John Surma: And lots and lots of businesses.

Frank Davis: And lots and lots of businesses in each location. They’ve had fewer and fewer compliance officers that are available to go out and conduct those inspections. We’ve seen generally, in this region, a reduction in the, what would I say, the per business capita inspection rate than we have in previous years. It seems that it’s been on the decline for, well, since COVID, really. They lost a lot during COVID, at one measure, I heard 50% of the enforcement force over COVID.

And while they’ve been trying to backfill those ranks, they’ve had difficulty getting new compliance officers into those positions trained. And then they’ve been having trouble retaining some of those compliance officers that have rotated out after just one or two years with these different area offices. And it’s quite a surprise. And some area offices down to what? Three active compliance officers? That’s remarkably low when you consider they’re covering, in some cases, 40 or more counties.

John Surma: With the EO that basically puts a freeze on hiring of new personnel, and then the, quote, unquote, “fork in the road” email that allows folks to essentially announce their retirement or resignation seven months early and not return to work after announcing that, we can reasonably expect that there’s going to be some number of people that take OSHA up on that offer.

Frank Davis: There’s two executive orders at work here, right? Number one, they’ve got the hiring freeze executive order that prevents any hiring until the director of the Office of Management and Budget working with the administrator of DOGE comes up with a plan to reduce the size of the overall federal government workforce through efficiency improvements and attrition. That’s the first, and that’s the freeze that’s in effect for at least 90 days or for 90 days until they get this plan in place. Which just straight interpretation means, to me, that those officers that only have three compliance officers, they’re not going to get more in the near future.

John Surma: Agree.

Frank Davis: And then to your point about the “fork in the road” memorandum that came out, that’s designed to encourage early retirement, what they call deferred resignation, the ones that invite deferred resignation, asking people to submit their resignation up until a date certain in February. And then they don’t have to actually leave, the employee, until September 30th, all the while being paid and accruing benefits and allowed to stay home and relax or travel to a, quote, “dream destination,” end-quote, in other words, vacation during that period. That’ll be very attractive. I agree with you, that will attract some very competent people out of the agency who will be able to find other jobs relatively easily. I think that’s a fair assessment.

That may be some good news in term for employers. I’m not sure what the long-term impact of that is with regard to just the enforcement from that agency and what to expect. They still have the mandates to perform a certain number of inspections regarding programmed inspections, and they still have an obligation to conduct inspections for certain types of reported activities. Obviously fatalities, but also amputations they tend to go report.

I think you and I had talked about the increase in the number of rapid response letters that employers are getting or that we’re seeing employers getting. Do you expect that to continue to be the upward trend while we see fewer and fewer compliance officers available?

John Surma: Oh, yeah. I absolutely think that that’s going to be a common thing. I mean, look, that kind of feeds into another issue which is the return to work EO and, yeah, the mandate that folks go back to working in the office. I mean, look, I enjoy being able to work from home and not having to go into the office, but I do think that from the standpoint of your boots on the ground compliance officer, it’s pretty hard to do this job from your house and that you probably do need to be in the office and available to go out when there are fatality catastrophe situations, the ability to go out on program inspections. But to your point, relative to the rapid response investigation, or, yeah, RRI or the R2I, depending on what way you want to say it, I think that we’re going to see a pretty significant uptick in those.

Now, having said that, a lot of times employers seem to think that that’s your get-out-of-jail-free card. I don’t know what your experience has been lately, but in the past, I would see where we’d get an RRI response… I know you are very thorough with them, I think potentially even more thorough than I am. I tend to be excruciatingly thorough, but there’s a lot more follow through and follow up by the folks that are sending those letters to our clients seeking clarification, seeking data, seeking supports for the propositions that we put forth in our responses, the RRI.

So, I don’t know that they’re less effective. I do think that they can be more efficient. I think that it depends upon who’s being assigned to them. I also see them sometimes as being an enormous time sink on things where if they just came out and saw what was going on, they would take a look, do a couple of interviews, ask for some basic documents, close their books up and say, “Okay, there’s no there there.” So, yeah, that kind of goes both ways, but I think all these changes are going to result in a significant uptick in the RRI.

Frank Davis: I agree with you, and your observation, I think, is fair with regard to higher expectations on what the RRI contains, especially when it comes down to reportable events. For the longest time, I used to tell folks that there was no way you’re going to get an RRI letter for an amputation that they were going to come out and conduct that inspection, but I’m seeing RRIs now or R2Is for amputation inspections.

But I think they do require a higher standard, at least in this area of getting that information accurate so they feel more confident closing the file without an inspection. Or maybe it’s the same type of follow-up questions that compliance officers used to get from their supervisors that we might not have been privy to, saying, “Yeah, but what about this? And can you provide us documented evidence that you’ve done these things or that you’ve considered these things?” I think that’s right.

Still, as you have said once, and I’m going to attribute to you from now on, I think you get a lot of juice out of the squeeze if you’re able to respond to an RRI letter as opposed to having to entertain any degree of inspection. There’s always a risk with an inspection that it’s going to grow into something more.

John Surma: I think a lot of people think, “Oh, I got this RRI letter. 20 minutes later, we’re going to be done with it.” The most recent one I have actually is an amputation. It’s like just sifting through the materials to understand what happened and to kind of wrap my mind around what the story is going to take a significant amount of time. So, it’s not necessarily, from the employer’s perspective, all that much more efficient or that much easier to do. It just means that you don’t have somebody from the outside coming in your workplace. And with the RRI, you can at least eliminate that factor in terms of the growth of the inspection.

Frank Davis: Yeah. No, I agree with that completely, so it’ll be interesting to see how these plans evolve over time. Of course, as part of that “fork in the road” email that was sent by OPM, the Office of Personnel Management, to all federal employees suggested that there were four pillars. There was the return to work, and then one of the pillars is the focus on performance and trying to hire and retain the best talent that have the highest standards. But then beyond that, again, it’s the streamlined workforce.

So, part of that return to work was you have the opportunity to basically RIF yourself, a reduction in force, but after September 30th, which, by the way, is the end of the government’s fiscal year, September 30th, that the government, DOGE and the Office of Personnel Management are likely to come and do a review and decide whose jobs are redundant and to downsize through restructuring realignment, and again, reductions in force. I think that that’s going to further motivate people. I heard one report where the government was hoping to reduce the government workforce through this voluntary RIF by 10%. Did I see that right?

John Surma: I’ve seen between five and 10, so yeah, I think that’s right.

Frank Davis: And then they’re planning on installing enhanced standards of conduct for the federal workforce to ensure that it’s comprised of employees who are reliable, loyal, trustworthy, and, quote, “strive for excellence in their daily work.” Knowing some of the people that have already taken this resignation route, I think they’ve already lost some people that strive for excellence in their daily work, unfortunately.

John Surma: Well, I tell you, the four pillars that are referenced, really, I think it’s the third pillar is the one that I latched onto where it sounded a lot like private-sector employment and the expectation that people who are employed by the government be held to high ethical standards, et cetera.

But we’ve been going a bit, and we probably should shift gears a little bit and talk about another executive order, and that was the executive order relative to the review of basically new and pending regulations coming out of the government. In particular, we want to look at new and pending regulations relative to OSHA and how that might be impacted. And Frank, if you could, just very high level, what does that EO stand for conceptually as you understand it?

Frank Davis: Well, with regard to the OSHA cases, well, in all regulations, I guess they’ve put a freeze on adopting new regulations that haven’t been published in the Federal Register already. With regard to our cases with OSHA, the two big regulations we’ve had our eye on are heat illness and emergency preparedness. It’s clear that, certainly clear to me, but in accordance with this executive order, that neither of those are going to pass. I mean, you and I’ve been predicting that since November 5th. I think we’ve been predicting that in these podcasts, and others have, too.

What’s a short-term impact? I don’t expect to see a final rule on heat illness, I don’t expect to see a final rule on emergency preparedness, notwithstanding all the work we put in to analyzing those two rules over the course of the last year.

John Surma: And Frank, are there any other rules that you think are going to be potentially subject to review or revision? Like as a for instance, the Walkaround Rule that went into effect back into May?

Frank Davis: I don’t know. I don’t know. The president’s domination for Secretary of Labor I thought was going to be labor friendly, but some of the actions taken with regard to the Labor Board, by reducing it below a quorum, suggest that maybe it’s going to be less labor-friendly. Certainly, the Walkaround Rule was designed to benefit organized labor.

I think it’s hard to predict what’s going to happen with that. You hear the rumors. I’ve heard the rumors, you’ve heard the rumors that there’s going to be an exchange of removing 10 regulations for every one new regulation adopted. Don’t know how that would work. Don’t remember how it worked during the first four years of the Trump administration.

John Surma: Well, I think in the first four years, it was three to one.

Frank Davis: Well, I don’t remember seeing a lot of regulations pulled down during that time.

John Surma: Oh, in the OSHA space, no, certainly not. I’m not going to speak in this podcast to any other spaces, but no, absolutely not in the OSHA space.

Frank Davis: Yeah, fair enough. Yeah, that’s right. So, I think this is still a very speculative area, what’s going to happen with the other regulations. I feel pretty confident saying heat illness and emergency preparedness are not going to be at our Thanksgiving table this year.

John Surma: I think you’re absolutely right about that and probably not for the next four years or whatever time is left. Less than four years of this term of the Trump administration.

Last thing I wanted to talk about as we’re getting on in the duration of the podcast was, during the Biden administration, there were two major actions that the Biden administration took as relates to OSHA tied to immigration. One of those was the granting of certain types of visas with respect to folks who had status issues, who were cooperating in investigations that OSHA was conducting. And the other was an outreach overall to folks that had issues relative to status, particularly focusing on what they characterize as vulnerable workers, so the young, folks that did not speak English, folks with immigration status, et cetera. Clearly, it’s early and we don’t know where this is going to go, but do you have any predictions, yourself, in terms of whether we’re likely to see those two programs continued in this next four years with OSHA?

Frank Davis: I haven’t heard any advanced reports of a plan to address those. But everything else from the Biden administration that I was paying attention to has been changed, so I don’t have any reason to think that those won’t be changed. I don’t want to predict though what they’re going to do with those. I just think it’s premature. I think we’ll wait and see what the president does, and then we’ll report on it and make adjustments just like everybody else.

John Surma: That’s very fair, and we’ll be doing another podcast here in the not too distant future. Frank, as always, it’s been a pleasure. It’s been good catching up you this morning. I appreciate you joining me, and we appreciate our audience joining.

Frank Davis: Thanks for getting together, John. It’s good talking to you. I hope everybody has a wonderful and prosperous 2025.

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