For many in the country, the term “Washington leadership” is an oxymoron, and calling someone a “Washington insider” may be an epithet rather than a compliment. The truth remains, however, that developments in Washington, D.C., especially at the federal regulatory agencies, significantly impact those affected by federal labor and employment laws. Those laws are rapidly changing—not in Congress, as you might expect, but through agencies such as the National Labor Relations Board (NLRB), the Equal Employment Opportunity Commission (EEOC), and the U.S. Department of Labor, particularly at the Wage and Hour Division, the Occupational Safety and Health Administration, and the Office of Labor-Management Standards.

Power Transitions

Meanwhile, the talk inside Washington centers around two high-profile power transitions. One has recently concluded, but continues to send ripples of conjecture and prognostication throughout the political waters of Washington. The other—the 2016 presidential elections— despite being a long time in the making, is just starting to heat up. . The former is the dramatic resignation of House Speaker John Boehner (R-OH) and the equally dramatic process of selecting his replacement. The latter of these two transitions is of course the 2016 presidential elections.

After House Speaker Boehner (R-OH) resigned not only his leadership post but also his seat in Congress, and his heir apparent Majority Leader Kevin McCarthy (R-CA) took himself out of the running for the speakership, the task of leading the fractured ranks of the Republican party fell to Rep. Paul Ryan (R-WI), the chairman of the House Committee on Ways and Means and former 2012 vice presidential candidate. Ryan, reluctant at first to heed the calls from his GOP colleagues to assume the mantle, eventually relented and was elected Speaker, but only after calling for party unity among various factions of the House Republicans as a condition of his running for the Speaker job.

Ryan’s reluctance stemmed from concern over the demands from the 40 members of the conservative House Republican Freedom Caucus for rules changes giving them the right to seats on leadership committees, chairmanship of House committees and subcommittees, a meaningful role in determining which legislation is scheduled for floor action coming out of committees, an open amendments process, an end to party discipline for those who defy leadership even on party-line procedural votes, and a commitment on the budget and debt ceiling debates, which could lead to government shutdowns. Long gone are the days when newly-elected, first-year members are expected to be seen but not heard and are instructed to follow their (Party’s) Leader on procedural party-line votes, while they gain experience and seniority.

Ryan made clear that he was not amenable to many of the demands of the Republican Freedom Caucus and insisted on party unity as a sine qua non for his ascension to the speakership. If the votes are any indication, Ryan came close to achieving that unity: needing 218 total votes (a simple majority of all House members), Rep. Ryan received 236 Republican votes, with  candidate Rep. Daniel Webster (R-FL), who is endorsed by the Republican Freedom Caucus, garnering only 9 votes. House Minority Leader Nancy Pelosi (D-CA) received 184 votes. Ryan now becomes the 54th Speaker of the House and second in line of succession to the presidency in the event neither the president nor vice president is able to serve.

Future Legislative Action

The upside (or downside, depending upon your point of view) of all this Washington drama is that we don’t expect to see much legislative action in the near future, especially since presidential election years generally are consumed with political posturing in Congress. Any energy Congress has is likely to be consumed by:

  • a December 11, 2015 deadline to parlay a recent short-term continuing resolution on the budget into a long-term budget deal in order to avoid a possible government shutdown;
  • negotiations over a highway funding bill set to expire November 20, 2015, a $325 billion version of which was approved by the House on November 5, 2015, following consideration by multiple congressional committees (including the House Ways and Means Committee, House Transportation and Infrastructure Committee, and the powerful House Rules Committee);
  • the controversial reauthorization of the Export-Import Bank (which recently passed the House as a standalone bill and passed the Senate as part of the Senate’s highway reauthorization bill, but will not, according to Senate Majority Leader Mitch McConnell (R-KY),  receive a vote in the Senate as a standalone measure);
  • Reauthorization of funding for the Federal Aviation Administration, which expires in early 2016.

The Labor and Employment Policy Agenda

As for the labor and employment policy agenda, Democrats will push unsuccessfully for a large minimum wage increase, paid family and medical leave, pay equity legislation and union-inspired labor law “reform,” such as “card check” union representation in lieu of secret ballot elections, and punitive money damages for employer unfair labor practices. Lacking sufficient votes to achieve actual passage on any of these measures, the Democrats will instead likely use them as “wedge” issues to draw contrasts between themselves and their Republican counterparts as a way to excite additional support from their political base in the lead up to the 2016 elections. Republicans will push for funding riders on appropriations bills prohibiting expenditure of funds to enforce recent regulatory actions, such as the NLRB’s “ambush” election rules and the change in the NLRB’s joint-employer standard. The Democratic agenda will not be reported out of committee; the Republican agenda will likely be vetoed. So where will the battles be fought?

The real labor and employment battles leading up to the 2016 elections will not be in Congress. Rather, the fights will be over White House executive orders and the regulatory initiatives from federal agencies, as they have been for the past several years, as well as legal challenges to those new regulations in federal courts. Those regulations include the government contractor “blacklisting” regulations proposed under  and implementing the Fair Pay and Safe Workplaces Executive Order 13673; , the proposal to revise overtime regulations under Part 541 of the Fair Labor Standards Act, and perhaps revisions to the Labor-Management Reporting and Disclosure Act’s “persuader activity” regulations. Of course, the NLRB continues to issue decisions that are harmful to employers—from overturning long-established legal precedent and actions by the U.S. Department of Labor and the Equal Employment Opportunity Commission to reinterpreting these agencies’ well-established regulations.

We will continue to analyze developments in Washington and throughout the country through these turbulent times. And, of course, there’s always politics—from the “insider’s” perspective. Stay tuned.

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Ogletree Governmental Affairs, Inc. (OGA), a subsidiary of Ogletree Deakins, is a full service legislative and regulatory affairs consulting firm, dedicated to helping clients solve their problems with the public sector. OGA unites the skills and experience of government relations professionals with the talent of the Firm’s lawyers to provide solutions to regulatory issues outside the courtroom.

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