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What is the Post-Election Outlook for Employment Law?

By: Bruce B. Deadman

The “Blue Wave” many pundits predicted did not result in the flipping of both houses and a total shift in the political control of the Wisconsin and federal governments. Nonetheless, both the Wisconsin and Federal governments have divided control for the first time in many years. What, if anything, does that mean for state and federal employment law?  Will there be a tsunami, just a ripple, or something in between in areas such as wage and hour, union issues, worker safety, and other topics? The short answer may be not much, unless warring Democrat and Republican legislators, and President Trump can sheath their swords.

Federal

The House of Representatives will be under control of Democrats. Therefore, expect some bills to be introduced designed to focus attention on traditional goals of Democrats, and, frankly, position Republicans as obstructionists when the bills are either defeated in the Senate or vetoed by the White House.  Here are a few examples:

Wage and Hour
Regulatory changes in the “white collar” overtime rules are now in the public comment stage, and new (and badly needed) regulations increasing the minimum salary threshold for overtime eligibility and revamping the “white collar” rules in other respects are expected from the Department of Labor (DOL) in 2019. Democrats may introduce legislation which goes well beyond whatever the DOL proposes, as well as attempts to increase the minimum wage.

Joint Employer
House Democrats may introduce legislation designed to undue recent judicial and NLRB interpretations restricting who is and who isn’t a “joint employer” for collective bargaining and other purposes, increasing potential liability for certain segments of employers.

Mandatory Sick and Paid Family Leave
Depending on the nature and extent of what is proposed, some form of mandatory sick leave and paid family leave may receive some bipartisan and even White House support.

Agency Rule-Making and Policy Interpretation
Agencies such as OSHA and the DOL have, to a certain extent, adopted a more persuasive and less litigious outlook. It is entirely possible that House Democrats may introduce legislation which would attempt to force agencies to return to their previous, more coercive ways.

But, remember that the Senate remains in Republican control. Therefore, little of whatever the House Democrats send to the Senate, especially controversial or “game-changing” bills, will pass.

Expect the Senate to continue to continue to confirm conservative nominees to federal judgeships, and to finally fill many administrative positions which have remained vacant for some time.

State
Wisconsin is now a divided state, with a Democrat Governor having to deal with Republican majorities in the Senate and Assembly, but not “veto proof” numbers.

Conventional wisdom is that many voters were energized to support Tony Evers because of his opposition to Act 10, the law enacted in 2011 which severely limited the bargaining rights of most public employee unions, and which resulted in protests in Madison and elsewhere.

All of the Democratic gubernatorial candidates, including Governor-elect Evers, pledged to repeal Act 10 if elected. With both houses of the state legislature under Republican control, outright repeal of Act 10 is unlikely. It’s likely that Governor-elect Evers’ supporters, particularly teachers, will expect some attempt by him and his party’s legislative colleagues to repeal or soften Act 10, even if that effort is largely symbolic.

According to a May 25, 2018 Milwaukee Journal Sentinel article, then-candidate Evers thought that a compromise could be reached that would increase public employees’ bargaining power but still require them to pay a portion of their health care and retirement costs. It will be interesting to see if a proposal for that sort of a “grand bargain” is introduced.

General enthusiasm for repeal may be dampened by the length of time that has elapsed since the passage of Act 10. It has been in place for nearly 7 years, and the electorate may simply be getting used to it. According to the Waukesha Patch news blog, opinion remains divided on Act 10. The Patch noted that an October 2018 Marquette Law School poll revealed that public opinion is nearly evenly split as to whether Act 10 should be repealed or maintained.

Other matters which may come to the fore in Wisconsin in the coming years include city or county minimum wage ordinances, designating a municipality or county as immigrant “sanctuary” areas, to name but two state “hot button” issues.

Stay tuned: It’s going to be an interesting few years.

Bruce B. Deadman is an attorney with the law firm of Davis|Kuelthau in Green Bay. His practice is focused on labor, employment, and compensation-related issues. He can be reached at bdeadman@dkattorneys.com or 920.431.2228.

This article will appear in the December issue of The Business News