The Results Are In: The Consequences of the 2016 Elections for Labor and Employment Policy

Some may recall the scene in the movie, Network, in which actor Peter Finch launched into an angry rant on his television news show shouting “I’m as mad as hell, and I’m not going to take this anymore!” He encouraged his viewers to open their windows and shout the same protest. Soon citizens throughout the city were shouting out their windows.

Last night I could hear them shouting. Last night’s vote was an angry vote—a protest vote—by millions of voters who feel alienated, lied to, betrayed, left behind and ignored by Washington, D.C.—the White House, Congress, the “Establishment.” They voted for radical change (“drain the swamp”) led by an outsider. To them, Secretary Clinton symbolized more of the same.

The results were a historic political upset, which defied all of the political polls, with more than 118 million votes cast and the election of Republican Donald Trump as the 45th President of the United States. Trump defeated Democrat Hillary Clinton in the Electoral College, with four states undeclared, by 279 to 218 (with 270 required to win) as of this writing. In doing so, Trump carried 27 states, including key swing states, Ohio, Florida, North Carolina, Iowa, Pennsylvania, Michigan, and Wisconsin.

In the U.S. Senate, Republicans lost 1 seat (Illinois, with New Hampshire too close to call and Louisiana in a run-off), but retained the majority. The Senate in 2017 will have 51 Republicans and 47 Democrats with two Independents who caucus with the Democrats.

In the U.S. House of Representatives, Democrats made modest gains, but Republicans retained the majority by 236 to 191.

Elections Have Consequences

What do last night’s election results mean for labor and employment policy? In the first place, it means that Republicans will control the White House and both the House and Senate.

For another, it means that President-elect Trump will select the candidate for the current vacancy on the Supreme Court of the United States, as well as seats on the 12 federal circuit courts, only four of which remain under the control of judges appointed by Republican presidents.

It also means that President-elect Trump will fill the two vacancies on the National Labor Relations Board with two Republicans, thus switching majority control of the agency on his first days in office. The NLRB’s record of historic reversals of long-established labor law precedent in areas such as joint-employment, independent contractors, waivers of class and collective actions in arbitration agreements, “ambush” union elections and micro bargaining units will, over time, be reversed.

It means the appointment of other key policy positions throughout the federal labor agencies, including the Secretary of Labor, Solicitor of the U.S. Department of Labor, Assistant Secretary of Labor for Occupational Safety and Health, and Administrator of the Wage and Hour Division. They, in turn, will be expected to roll back or recall many of the controversial labor and employment regulations, such as the recently issued Part 541 overtime regulation, the Fair Pay and Safe Workplaces (government contractor “blacklisting”) executive order and implementing regulations, and the Labor-Management Reporting and Disclosure Act’s  revised “persuader activity” regulations.

The election results also represent an opportunity for Congress to promulgate regulations and pass legislation that would represent responsible immigration policy on a path to earned legalization of undocumented workers and that would repeal and replace the Affordable Care Act (Obamacare).

As a result of last night’s elections, the Chairman of the Senate Health, Education, Labor and Pensions Committee will likely remain with Sen. Alexander (R-TN) rather than Sen. Bernie Sanders (I-VT). The House Education and the Workforce Committee will be chaired by Rep. Virginia Foxx (R- NC) with Rep. Bobby Scott (D- VA) likely to remain as Ranking Democrat.

Whether the election results will bring about greater bipartisanship and less political acrimony and gridlock remains to be seen. However, with Republicans controlling the White House and Congress, those angry voters who complained that “nothing ever gets done in Washington” will expect better.