Mhlnews 7296 Election Workplace Regulation 0

The Election's Impact on Workplace Regulations

Oct. 10, 2016
No matter who is elected President, Washington's cozy relationship with organized labor will continue for the foreseeable future.

No matter who gets elected President this November, don't expect any big changes immediately when it comes to labor laws and workplace regulations. To coin a phrase: The more things change, the more they will remain the same.

If Hillary Clinton wins there is every reason to believe that she would continue the Obama Administration's symbiotic relationship with organized labor. She will do so out of ideological agreement, her need for their support should she run for re-election, and for the practical reason that the Democratic Party has become thoroughly dependent on the unions' financial and manpower favors.

If you share the widespread concern about the way the current Administration has pushed—and sometimes torn—the legal envelope to give unions what they want, keep in mind a Donald Trump administration won't be able to do anything significant to change course in the near term after he is sworn in.

First, any new President takes office with a short agenda of the five or so top issues they campaigned on that must be addressed while the election is still fresh in people's minds and their power and influence is at the strongest it will be during his/her Administration.

Secondly, the new President will have more than 4,000 politically appointed positions to fill. Finding, recruiting, vetting and gaining congressional approval for them takes time—years in some cases. Scott Darling, the fifth administrator of the Federal Motor Carrier Safety Administration, was named acting administrator in 2014 but wasn't confirmed by the Senate until July 14 of this year.

Completely out of direct presidential control are the federal commissions like the Equal Employment Opportunity Commission and National Labor Relations Board. By law those commissioners are nominated by the President to fill set terms of several years and also must be confirmed by the Senate. However, the President does appoint the sitting commissioner who will serve as chairman, and who can exert a powerful influence on the agency's policy direction and enforcement actions.

Then you have the phenomenon known in Washington as "burrowing in," where an outgoing administration installs ideological friends and supporters into the middle ranks of the civil service. Once they are part of the Civil Service it is virtually impossible to root them out. A perfect example of what can occur was the Internal Revenue Service's discrimination against conservative political groups. Although led by political appointees in and outside of the White House, lower-level IRS employees on their own initiative zealously targeted organizations they disliked

In addition, many of the new laws and regulations with the biggest impact on employers originate outside of Washington, in state and city governments where the leaders and policymakers make no secret of their favoritism towards unions and their embrace of the union policy agenda. Examples include the ongoing campaign to do away with independent contractor status and proliferating laws to mandate a higher minimum wage, ban the use of criminal and credit background checks for job applicants and impose mandatory sick leave and other costly requirements.

Another big question hanging over labor law and workplace regulation is what direction the future Supreme Court will take. The four-to-four deadlock now existing since Justice Scalia's death offers the prospect of great change in the High Court's direction that could spring from the confirmation of a single new justice.

Logistics employers need to pay close attention to the swiftly changing developments that we cover in this magazine and on the website. It also would be a good idea to prepare by obtaining qualified legal counsel specializing in this area, and being an active member of industry associations that monitor and address these issues. 

David Sparkman is founding editor of ACWI Advance, the newsletter of the American Chain of Warehouses Inc., as well as a member of the MH&L Editorial Advisory Board. He is based in the Washington, D.C., area.

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