What Do the Midterms Mean for Labor and Employment?


The primary labor and employment statutes—National Labor Relations Act and Fair Labor Standards Act—have not been substantially amended for decades. A divided government is not likely to change that. What will change is the proposed legislation that will gain traction in the House of Representatives. With Democrats now holding a majority, legislation to ease union organizing and limit worker choice is going to be on the agenda. Democrats set the stage in the last session of Congress.

Bills likely to make headway in the House that were introduced in the 115th Congress include the Workplace Democracy Act (WDA) H.R. 5728, Workers’ Freedom to Negotiate Act (WFNA) H.R. 6080, and Public Service Freedom to Negotiate Act of 2018 (PSFNA) H.R.6238. There is the potential that these bills could pass the House, but would meet resistance from the Senate.

The WDA and WFNA are essentially a redux of the Employee Free Choice Act. In summary, these two bills combined would:

  • Strip workers of the right to a secret-ballot election
  • Codify the NLRB’s Browning-Ferris decision, which instituted a broad and vague joint employer standard
  • Eliminate state right-to-work protections
  • Permit union secondary boycotts
  • Expand the definition of employee so that it curbs gig economy work opportunities

These bills represent an effort by Democrats to codify the Obama administration’s regulatory agenda and further limit workers ability to freely choose their representation in the workplace.

The PSFNA seeks to undermine the Supreme Court decision in Janus v. AFSCME, which determined that forced union dues in the public sector violated workers’ First Amendment rights (for an in-depth analysis of this legislation, see my previous post).

In short, the above legislation seeks to payback Big Labor for spending massive amounts on getting Democrats elected. As Bill McMorris of The Washington Free Beacon reported, “The Center for Responsive Politics found that 84 percent of the $133 million unions have spent in the 2018 cycle went to benefit Democrats.”

With a divided government, these bills have little to no chance to become law. However, Democrats winning a majority in the House will impact the Trump administration’s deregulatory agenda, at the National Labor Relations Board in particular.

As I’ve written on extensively, in the prior session of Congress, Democrats have been conducting a coordinated political campaign to block the current NLRB from unraveling the Obama administration’s job-killing policies. A component of this campaign has included Democrats in Congress frequently calling for Republican NLRB members to recuse themselves from cases that would overturn Obama policies and sending letters to NLRB members requesting information.

There is no doubt that those letters from Democrats will turn into subpoenas. The House Education and Workforce Committee will likely drag Republican NLRB members to the Hill to testify and they may call for an investigation into members regarding their purported conflict of interests. The Democrats will use the full force of their oversight powers to block the Trump administration from making reforms in the labor and employment sphere.

Unfortunately, even without House oversight powers, the Democrats’ campaign to grind NLRB business to a halt has been a success. How effectively House Democrats use their oversight powers will be something to monitor in the upcoming session of Congress.

In addition, it will be incumbent on the Senate Health, Education, Labor and Pension Committee to step up and defend the legitimacy of the NLRB’s regulatory efforts.