Election Fallout - What Does it Mean at the Workplace?

The House turned Republican, the Democratic majority in the Senate narrowed, and Senators up for election in 2012 are concerned. If there is one issue that resonated throughout the country, it was concern that Congress has not done enough to address the nation's 9.2% unemployment and 17% under-employment rates. Now that most of the election results are in, here's our view on its implication for employers:

There's little doubt that this is the final nail in the coffin for the Employee Free Choice Act (which would have done away with the secret ballot in union elections) and the Paycheck Fairness Act (which would have drastically limited the factors you could consider in setting an employee's pay). The chances are slim for an amendment to Title VII to prohibit discrimination on the basis of sexual orientation. If not completely dead, the Administration's agenda for employment legislation undoubtedly will be modest.

But don't breathe too easy. With Congress in gridlock, we expect the Administration to turn to stepped up regulatory efforts to further its employment agenda. Look for new regulations from the various agencies, more aggressive audits and stiffer administrative penalties. The election will not slow Obama NLRB from moving forward with its pro-union changes to the law. The EEOC's fiscal year just concluded on September 30th with a record number of discrimination charges filed - nearly 100,000. Expect the EEOC to aggressively pursue enforcement of the ADA and scrutinize employee-hiring practices. Expect the Department of Labor to turn individual employees into "investigators" for Wage and Hour compliance purposes, by requiring written notice to employees who are exempt of their exempt status and why. Also, expect the Department of Labor to develop protocols for distinguishing a bona fide independent contractor from one who is not.

For unions, the Senate races were a mixed bag. Of the four candidates aggressively backed by unions, Harry Reid (Nevada) saved his seat and Joe Manchin (West Virginia) took the late Robert Byrd's seat, but Joe Sestak (Pennsylvania) and Alexi Giannoulias (Illinois) both lost bids for the Senate.