Impact of Midterm Election on Employment Law

As you know by now, the Republicans will be in control of the U.S. House of Representatives beginning next year, and the Democrats will retain control of the U.S. Senate, although by a much more narrow margin than has been the case for the past two years. Since Republicans are generally regarded as more employer-friendly than Democrats, most employment lawyers may say that the result of this year’s midterm election will mean no new employment legislation. That may be true but I would remind you of what many employment lawyers said after the 2008 election.

There were predictions that unions would run wild in the streets, that all kinds of employee-friendly employment legislation would be passed, and that employers would have so many new compliance problems that it would be hard to do business. Click here and here for some of my predictions right before and right after the 2008 election. Despite the Democrats gaining control of both houses of Congress and the White House, most predictions were wrong, including mine. That’s one of the most amazing aspects of the last two years. 

I’m making no predictions this time. I don’t know what will happen. Even if the Republicans and the White House do work together better than they have in the past, it’s difficult to imagine that they would work together when it comes to employment legislation. It would seem that any employer-friendly legislation would be blocked in the Senate, and any employee-friendly legislation would be impossible to pass in the House. But again, I don’t know.

One thing that has happened in the past two years and presumably will continue to happen is more aggressive enforcement of labor and employment laws already on the books. So, more action from OSHA, DOL, EEOC, NLRB, etc. in all likelihood. Stay informed and stay alert. The political battle over employment law isn’t over.