What Could the 2018 Midterm Elections Mean for Workplace Policy? By NANCY HAMMER
T
he 2018 midterm election results gave both Democrats and Republicans something to celebrate with major gains for Democrats at the state level but mixed results in Congress. When the 116th Congress convenes in early January, the GOP will add to its majority status in the Senate, which in turn will strengthen President Trump’s chances of having his agency nominations confirmed. The President will also face a smooth path to filling judicial vacancies with conservative judges, including any that might arise in the Supreme Court in the remainder of his first term. By capturing the House of Representatives on Election Night, Democrats in 2019 will control the chairmanships of all House committees and will have at least a three- or four-seat majority in each committee guaranteeing heightened oversight of President Trump’s policies and administration for the next two years.
The 2018 election results will have a major impact on the shape and direction of HR issues arising in the House and throughout several states. For example, SHRM predicts that Democratic proposals on such topics as the Paycheck Fairness Act, increases in the federal minimum wage and the Healthy Families Act are all but certain to be resurrected in the 116th Congress. However, Republican leaders in the Senate have signaled that they intend to advance alternative proposals, including proposals to encourage paid leave, efforts to amend the Patient Protection and Affordable Care Act (PPACA), and possible additional tax reform legislation. Gains by the Democrats in state races will likely usher in a rash of employee-friendly workplace policy initiatives, such as paid leave mandates, predictive scheduling legislation and state-level legislation designed to enhance pay equity. While the chances of employee-friendly legislation becoming law in Congress will be remote given the Republicans’ stronghold in the Senate, such measures will likely gain traction at the state level, especially in states where the Democrats control the governor’s mansion along with both chambers of the state legislature. Republicans will also continue to focus even more intently on executive branch activities, particularly executive orders and regulations relating to immigration reform and the impact international trade has on the competitiveness of U.S. organizations. Despite gains in the Senate, however, the GOP will still be short of the necessary 60 votes needed to obtain “cloture,” or to limit debate and secure a final vote on legislation. Without the help of at least a handful of Democrats or the two Independents who caucus with them, Republicans could encounter the same parliamentary roadblocks they faced in trying to pass legislation during the 115th Congress. And even if they are successful in moving legislation out of the Senate, they will encounter a majority of 35 or greater Democrats in the House, which means that any legislation that reaches the president’s desk will need to be bipartisan. 44
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Despite these perfect conditions for gridlock, there could be movement on some of the more bipartisan issues affecting the workplace such as workforce development. While the national unemployment rate is 3.7 percent—the lowest since 1969— employers are still facing a skills gap that will only get worse as the unemployment rate continues to decrease. HR professionals report that their most effective approach to fill full-time regular positions is training existing employees to take on tough-to-fill roles. As they upskill existing employees, employers are also committing to inclusive hiring practices to remove employment barriers for qualified long-term unemployed job seekers and other nontraditional candidates including older workers, veterans, low-skilled workers, workers with criminal histories and global talent. For this reason, legislative efforts focused on upskilling and reskilling employees could receive attention. In addition, bipartisan criminal justice reform legislation, which includes provisions for work training programs, recently garnered the support of the President. Another area of bipartisan concern is the $1 trillion in student-debt carried by Americans. Bipartisan SHRM-supported legislation would address this issue by increasing the allowable amount of employerprovided educational assistance, which provides tax-free assistance through section 127 of the Internal Revenue Code, and expanding it to include student loan repayment. The House of Representatives will likely consider a year-end tax bill that could include these proposals. Another feature of the midterm elections was the increase in female candidates with 106 women claiming victory--the highest number of female legislators of any Congress in history. This shift could signal a revival of legislation focused on workplace equity, especially given that the majority of newly elected women are Democrats. House legislation will likely focus on gender equity including pay equity and prohibitions on the use of salary history in hiring. In addition, the issue of sexual harassment in the workplace has been front and center in our national conversation in 2018. The Equal Employment Opportunity Commission (EEOC) recently issued its annual statement for fiscal year 2018 and reported having “filed 66 harassment lawsuits, including 41 that included allegations of sexual harassment. That reflects more than a 50 percent increase in suits challenging sexual harassment over fiscal year 2017.” A continued rise in complaints along with continued pressure from #MeToo will lead to Democratic proposals to limit the use of arbitration in cases of sexual discrimination and limit the use nondisclosure agreements. Congress may also revive the Employment Non-Discrimination Act (ENDA) or other legislation focused on sexual orientation and gender identity. These proposals are likely to be met with enhanced religious carve-outs and may face opposition in a Republican-controlled Senate. With Congress divided, no clear mandate for either party, and a wealth of new faces at all levels of government, it is imperative for business leaders and HR to proactively welcome the incoming Congress, and to educate new legislators about all matters work.
Nancy Hammer | Vice President, Regulatory Affairs & Judicial Counsel Society for Human Resource Management nancy.hammer@shrm.org shrm.org | @hammershrm