Tuesday's GOP "shellacking" may not change much for employers

Employers can hope, but that doesn't necessarily mean change.

Tuesday night's Republican rout in the midterm elections was big news, but is it much ado about nothing from an employer's standpoint? Here are a few reasons not to become too giddy (if you were happy about the outcome) or too depressed (if you weren't):

1. Although the GOP will have control of the Senate, it does not have the 60 senators needed to override a presidential veto. So, even though House Speaker John Boehner (R-Ohio) and Sen. Mitch McConnell (R-Ky.), presumably the next Senate majority leader, are saying they'll work to repeal or partially roll back the Affordable Care Act, expect to see an actual vote that is largely symbolic. The President is expected to veto any but the most incremental legislation, and the Republicans won't be able to do anything about it unless they can find six moderate Democrats to join them. Are there any moderate Democrats left after Tuesday?

Elephants playing.flickr.SamHowzitCC
The GOP on Tuesday night. "Par-TAAAAAAAAAY!"

Employers can hope, but that doesn't necessarily mean change.

Tuesday night's Republican rout in the midterm elections was big news, but is it much ado about nothing from an employer's standpoint? Here are a few reasons not to become too giddy (if you were happy about the outcome) or too depressed (if you weren't):

1. Although the GOP will have control of the Senate, it does not have the 60 senators needed to override a presidential veto. So, even though House Speaker John Boehner (R-Ohio) and Sen. Mitch McConnell (R-Ky.), presumably the next Senate majority leader, are saying they'll work to repeal or partially roll back the Affordable Care Act, expect to see an actual vote that is largely symbolic. The President is expected to veto any but the most incremental legislation, and the Republicans won't be able to do anything about it unless they can find six moderate Democrats to join them. Are there any moderate Democrats left after Tuesday?

Elephants playing.flickr.SamHowzitCC
The GOP on Tuesday night. "Par-TAAAAAAAAAY!"

2. According to the same Boehner-McConnell piece linked above, the GOP will focus primarily on issues that have nothing to do with employment law apart from their possible side effect on job creation (not that job creation is a minor thing). For example, the Keystone XL Pipeline and fast-track trade approval are reportedly top priorities.

Please join XpertHR and me at 2 p.m. Eastern this Wednesday, November 12, for the webinar, "How to Make Your Workplace Holiday Party Sparkle - With No Legal Hangovers." In addition to lawsuit-free party tips, we'll review sexual harassment prevention, and the law on alcohol and drug testing. Should be a blast!

3. President Obama has indicated that he intends to continue using the executive order as a mechanism to get some of what he wants. Specifically, he has pledged to issue an Executive Order on immigration reform. Some Republicans have threatened to use "all procedural means necessary" to block such action, but it's unclear that they will actually be able to do anything more than give the President a lot of grief.

Donkey
"Rough night, man."

4. The federal agencies that govern the employment relationship -- most notably, the U.S. Department of Labor, the Equal Employment Opportunity Commission, the National Labor Relations Board, the Office of Federal Contract Compliance Programs, and the Occupational Safety and Health Administration -- will all remain securely under the control of the Administration. Employers should not expect any softening of these agencies' latest positions.

5. A Republican Senate will be able to block the President's judicial nominees, which could be very significant, but will they want to run the risk of being viewed as "obstructionist"? So far, they seem to be going out of their way to show that they do not -- for example, by promising that there will be "no government shutdowns."

6. The GOP ascendancy may be short-lived. The 2010 GOP victories were followed by the 2012 Democrat rout. As Dan Balz noted in a Washington Post column this week, Democrats have their problems but can expect better times in 2016 because "they are more in tune with the rising electorate -- young people, minorities, unmarried women" and arguably represent the growing mainstream view on issues like same-sex marriage, legalization of marijuana, "climate change and immigration reform." Mr. Balz said, "The Democrats' structural advantages are not to be underestimated."

I Voted.flickr.TroyeOwensCC

For at least the next two years, it seems that the states will be where the real action is. The AFL-CIO blog, which called Tuesday's results "rather disappointing for working families," noted that voters in four "red" or "reddish" states -- Alaska, Arkansas, Nebraska, and South Dakota -- approved measures that would increase the minimum wage above the federal level. (Voters in Illinois, and in Oakland and San Francisco, California, did too, but that's not quite as newsworthy.)

In addition, "blue" Massachusetts approved a measure that will give workers 40 hours of paid sick leave a year, and the cities of Trenton and Montclair, New Jersey, also enacted paid sick-leave measures. Although legal pot failed in Florida, it succeeded in Oregon and the District of Columbia. (Congress will have 60 days to review the D.C. bill.)

So, if you're an employer who thought Tuesday night's results were awesome, keep enjoying, but don't succumb to "irrational exuberance." And if you thought the results were a total bummer, you still have plenty to live for.

 

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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