These last couple of years I have rung in the new year with a set of employment law new year’s resolutions. With 2014 being a midterm year and these elections being so consequential, my resolutions have a political bent.
1. Remember how important it is to vote, especially in midterm elections.
The 2014 midterms had the lowest voter turnout since World War Two. As a result, the electorate was older and whiter than the population at large. This unrepresentative electorate put the GOP in charge of both houses of Congress. GOP control of congress probably won’t affect employment laws too much. When Congress was split between a Democratic Senate and a Republican House nothing much was happening. With President Obama still wielding veto power (hopefully) anti-worker bills passed by the GOP congress will be stopped by the president or even filibustered by Democratic Senators.
The real action is now happening in the states. The Republicans now totally control 68 out of the 98 partisan state legislative houses (e.g. they control the state house or senate) and in many states the GOP controls both legislative bodies. State laws have a lot of impact on working conditions in the state. State laws can be stronger than federal protections. For instance, a state can have a higher minimum wage or a stronger paid leave requirement than under federal law.
In the states now controlled by Republicans we are not likely to see worker protections being strengthened (at least at the legislature. Ballot measures are a different story as I’ll discuss later). There is also the possibility of terrible anti-worker laws like “right-to-work” being passed in GOP controlled states. This shows how important state level elections are for worker protections. People concerned about their rights at work need to get engaged at the state level and during midterms. It is not enough to only get out and vote in Presidential election years.
2. Keep the pressure on President Obama to use his executive authority to expand worker protections and workers’ rights.
President Obama worked around a divided congress this year and made a real difference. For example, he used his executive authority to expand the protections of the Family Medical Leave Act to same-sex spouses. There is still a lot to be done. We need to remind President Obama he has the power to make important changes to employment law and he should move forward using his executive authority. For instance, there has been talk about increasing the amount of weekly earnings required for an exemption under the Fair Labor Standards Act white collar exemptions . Currently one need only be paid $455 a week to be eligible for an FLSA exemption. The Department of Labor could raise that amount so workers would need to be paid a decent salary before they could be exempt from overtime or the minimum wage.
President Obama could also move forward on plans to change the home health care exemption of the FLSA. Currently people who work in private homes helping invalids are exempt from overtime pay. These jobs are commonly held by women who work long hours for low pay. The DOL announced changes that would have made these workers eligible for overtime. Later it was announced the changes were to be postponed for further review. Making the changes to the FLSA regulations now, as originally planned, would help many hard working men and women who do a difficult but necessary job.
3. Get involved in politics outside of electing candidates to office.
Some of the most heartening news about workers’ rights came from the states. In a number of states pro-worker ballot measures passed handily. Interestingly, these measures passe in states even when the state elected Republicans to statewide offices. For example, in Arkansas a ballot measure passed raising the state’s minimum wage to $8.50 . Nebraska raised their minimum wage by a ballot measure to $9 an hour. Alaska and South Dakota also raised the state minimum wage via a ballot measure. In Alaska and Arkansas the Republican won the statewide senate race and the strong support for the ballot measures forced both candidates to eventually come out in favor of raising the minimum wage. It is unclear why people would vote for a raise in the minimum wage then vote for politicians who oppose the raising the minimum wage (or even the minimum wage in general). Maybe there needs to be a concerted campaign by supporters of increasing the minimum wage to “call out” politicians who are against raising the minimum wage.
The success of these minimum wage ballot measures also shows how certain policies can be widely popular even when the politicians who support those policies are not. Supporters of workers’ rights might need to figure out other policies as popular as the minimum wage and push to include those policies on future ballot measures.
4.Don’t forget how important the courts are and how elections impact who sits on the courts.
There were less “blockbuster” Supreme Court employment law decisions this year than in 2013. Mostly because there was less of an opportunity as there were less cases on their docket concerning employment issues. A big decision was the recent case involving pay for time spent waiting on security checks. The court decided current law says workers do not need to be paid for time waiting in line for a security check. With the decision being 9-0, this is a case where the legislature could change the law. But I wouldn’t hold my breath.
5-4 decisions are where small changes to the court’s composition could make a big impact. The next president will probably have the opportunity to replace two or more supreme court justices.
The lower federal court justices are also appointed by the president. President Obama has been able to appoint many federal court judges. At the moment, Democratic appointees outnumber Republican appointees on 9 of the 13 federal appellate court circuits . It is crucial to elect the Democratic candidate for president in 2016, if only for the judicial appointments.
Good luck in the new year whatever you do.