How the Midterm Elections Gave Hope to Employers

by Joseph "Trey" L. Wood, III

It was just two years ago and virtually all management-side labor and employment attorneys, including this author, were forecasting gloom and doom for employers across the country. President Obama had just been elected and he had promised the passage of several employee-friendly laws. Among them was the Employee Free Choice Act (EFCA), which I was certain would be passed early in President's administration. Now, it is all but dead. What happened? Democracy seems to have intervened.

The Republicans, and even some Democrats, questioned EFCA from the beginning. The biggest problem with the bill was the fact that it did not allow for secret ballot elections — something that is almost un-American. But certain legislators refused to let it die altogether, and the President continued to insist that it was among his priorities. However, given the outcome of the midterm elections and with the Republicans now controlling the House of Representatives, and making major gains in the Senate, we can now waive goodbye to EFCA — at least for two more years. Unfortunately, the National Labor Relations Board (NLRB) will likely attempt to push though many of EFCA's provisions through the passage of new regulations.

Other Proposed Legislation on the Rocks
Immediately after the election, many Republicans were calling for the repeal of the Affordable Care Act. While such legislation could pass muster in the House, it is unlikely that it could gain that much traction in the Senate, and then it would have to overcome a Presidential veto. However, it is possible that the repeal could come in the form of piecemeal legislation. Another option available is for Congress to withhold funding to the agencies given the task of enforcing the legislation.

Another bill that may soon meet its demise is the Paycheck Fairness Act, which would amend the Fair Labor Standards Act to provide unlimited compensatory and punitive damages in gender-based discrimination cases and weaken an employer's defenses to such claims. While this legislation is scheduled for a vote on November 17, 2010, it is unlikely that a lame-duck Congress would pass such a controversial measure, especially in light of the fact that the Senate Republicans will add another member during this session when Senator-elect Mark Kirk of Illinois is sworn in.

Shift from Legislative Action to Agency Action
Given the fact that the passage of any of the President's pet employment-related bills has gone by the wayside, it is a virtual certainty that he will shift his focus on implementing change from law-making to rule-making. As mentioned above, the NLRB is beginning to suggest and implement sweeping changes through new regulations. In addition, the EEOC will continue to focus on an agenda that is in lock-step with the changes embraced by President Obama. So it is probably premature to say that the most recent election sounded the death-knell of the President's pro-employee stance.