Now That The Election Is Over, What Is Going To Happen In Employment?

Kegler Brown E-mployment Alert

Everyone is entitled to their own guess, but my guess is “just more of the same.” For whatever they’re worth, here are my predictions:

  • Since the Republicans maintained control of the House (and a filibuster capacity in the Senate), we probably won’t see much new employment legislation enacted, at least until the 2014 mid term elections. Of all of the pending bills, the President may invest some political capital to try to pass the Paycheck Fairness Act, which is designed to expand the Equal Pay Act and the Wage-Hour law to address gender inequality in earnings.
  • In the absence of litigation, expect the federal agencies (EEOC, Department of Labor, OSHA, OFCCP, etc.) to become even more aggressive in expanding the boundaries of existing law by (a) pursuing targeted lawsuits on issues where they want desirable court rulings, (b) more actively seeking to implement new regulations and guidances for reform, and (c) relentlessly engaging in expanded administrative enforcement measures. Among the subjects that appear to be on the Administration’s agenda are equal pay, the disability law, and sexual orientation as a protected class. A broadened and unchecked aggressiveness of the federal agencies may very well look like a crusade against business interests.
  • The President owes a great debt to organized labor for both money and voter turnout. The President will probably first focus on filling existing vacancies in the National Labor Relations Board (NLRB). As it began during the President’s first term, the NLRB will look to push the envelope of workplace rights and protections, perhaps with expedited union elections, social media regulation, and additional forays into the non-union workplace.
  • The Affordable Care Act will hit with a vengeance in 2014, so look for the issuance of additional regulations on healthcare, with the predictable response of additional litigation challenging the Act and the regulations.
  • The Supreme Court could experience a major recomposition, especially if Justice Ginsberg (age 79) and Justice Scalia (age 76) retire during the President’s next term. If the President has the chance to appoint a more liberal Court, we could see a shift toward pro-employee judicial decisions across the whole range of employment issues. In addition, the President will now have four more years to nominate employee friendly judges to the federal court bench.

After what feels like a year of relentless campaign ads and unsolicited phone messages, we are right back where we started, with the President in the White House and Congress in gridlock. However, we can expect the federal labor and employment agencies to continue, and expand, their activist enforcement and extension of the employment laws.