Now that the shutdown has been (temporarily) resolved and Democrats are now in control of the U.S. House, it is a near certainty they will propose an array of worker-friendly legislation over the next two years. Although Democrats now wield considerably greater power than during the first two years of the Trump administration, it’s still unlikely such legislation will ever make it into law.
“With Republicans still in control of the Senate and the White House, Democratic control of the House means there will be limited opportunities for passage of major workplace laws at the federal level,” says Jim Plunkett, co-chair of the governmental affairs group at Ogletree, Deakins, Nash, Smoak & Stewart in Atlanta. “Even in the Republican-controlled Senate, it is unlikely that major employment legislation will make it through, with the Democrats maintaining their ability to filibuster unwanted legislation.”
As the Democrats flex their newly regained legislative muscle—and start gearing up for the 2020 presidential election—HR leaders can expect a significant amount of legislation on “bread and butter labor and employment issues” to be proposed in the House, according to Benjamin Ebbink, Of Counsel in the Sacramento office of Fisher Phillips. Among the legislation most likely to be proposed:
Paid Leave: Of all the measures expected to be pushed by the House, paid leave has the best chance of actually being signed into law. While worker-friendly legislation is often considered the purview of the Democratic party, paid leave has been discussed at length on both sides of the aisle, with many Republican lawmakers indicating support for such a law. Both the president and his daughter Ivanka Trump have come out in favor of paid family leave and paid sick leave, creating a very real possibility of traction on the issue.
Paid leave “sells well politically,” says Randel Johnson, chair of the Government Relations and Policy Group at Seyfarth Shaw in Washington and former senior vice president of the U.S. Chamber of Commerce. He believes it is likely to be pursued and combined with an expansion of the kind of leave that can be taken under the Family and Medical Leave Act.
Still, there remain fundamental disagreements about who should cover the cost of paid leave: the employee or the employer. According to Ebbink, some Republicans have floated the concept of a voluntary paid-sick-leave program or one whose cost is borne by employees through a reduction in Social Security or other benefits. Such ideas have not been well-received by Democratic leadership.
Federal Minimum Wage: Raising the minimum wage will assuredly be part of the Democrats’ policy agenda, according to Plunkett. Already, he says, Congressional Democrats have “hammered” Republicans for not holding a hearing on the matter during the eight years they were in the majority. Only time will tell if the federal minimum wage begins to approach the $15 per hour level proposed by many workers’ rights groups, Sen. Bernie Sanders and other lawmakers. Indeed, Plunkett says, “the question will be whether Democrats’ legislative proposals swing for the fences or whether they try to advance modest, phased-in increases to attract bipartisan support.” Still, it’s highly likely the federal minimum wage will be increased, according to Johnson, unless fears of a pending recession prove to be accurate. He expects the most difficult debate to be over the level, the phase-in schedule and what “sweeteners” the business community can achieve as part of a package.
Labor Unions: There are several “wishlist bills,” says Plunkett, favored by labor unions and Democrats that were introduced in previous sessions of Congress. Chief among them is the Workplace Democracy Act, which Plunkett describes as an “ambitious series of amendments designed to overhaul labor-management relations and increase union membership.” The bill is expected to be introduced this year and is likely to advance out of the House, but will be DOA in the Senate, says Plunkett.
“Unlike a potential reasonable paid leave law or modest, phased-in increase in the minimum wage, the political calculus on such a bill is easy for Republicans and I expect them to uniformly oppose,” he says.
Workplace Equity: Passage of LGBTQ legislation, prohibiting discrimination based on sexual orientation, is a “virtual certainty” in the House, says Johnson. Meanwhile, the #Metoo movement has placed a renewed focus on workplace sexual harassment. Because sexual harassment is already unlawful under Title VII of the Civil Rights Act, Plunkett expects Democrats to offer other vehicles to address the problem.
“Both pre-dispute arbitration agreements and non-disclosure agreements are viewed by some as tools that help employers sweep sexual harassment allegations under the rug and silence alleged victims,” says Plunkett. “Bills that were introduced in the 115th Congress to ban, or at least limit the scope of, arbitration agreements and non-disclosure agreements will undoubtedly be reintroduced in 2019.”
Overall, HR will be left to “watch and wait” to see if any meaningful legislation actually emerges, says Ebbink. In the meantime, he advises them to keep an eye on state and local jurisdictions, as they are likely to take up the mantle in light of the stalemate in the nation’s capital.
“That’s going to be where the action is, particularly in the blue states,” Ebbink says, “as Democratic legislatures push the envelope on things that can’t get done in Washington.”
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