Tag: 2020 election

How A Sack Of Flour Healed A Divided Electorate

In 1864, the voters of Austin, Nevada were almost evenly divided between supporters of the Union (Republicans) and advocates for an immediate peace treaty with the Confederacy (Copperheads).  Two eminent citizens bet on the outcome of the election.  Ruel C. Gridley, an ardent Copperhead, lost the bet and, as agreed, carried a 50 pound sack of flour from his store down the town’s main street, marching to the tune of “Old John Brown”.  At the end of the March, he auctioned off the sack with the proceeds going to the Sanitary Commission, a private agency for the support of sick and wounded Union soldiers.   Samuel Clemens, aka Mark Twain, gives an account of what happened next:

“Gridley mounted a dry-goods box and assumed the role of auctioneer. The bids went higher and higher, as the sympathies of the pioneers awoke and expanded, till at last the sack was knocked down to a mill man at two hundred and fifty dollars, and his check taken. He was asked where he would have the flour delivered, and he said:

“Nowhere–sell it again.”

Now the cheers went up royally, and the multitude were fairly in the spirit of the thing. So Gridley stood there and shouted and perspired till the sun went down; and when the crowd dispersed he had sold the sack to three hundred different people, and had taken in eight thousand dollars in gold. And still the flour sack was in his possession.”

Roughing It, Chap. XLV.   The local newspaper, The Reese River Reveille, publicized the story and soon Ridley was traveling the West auctioning and re-auctioning his famous sack of flour.  Ridley eventually raised about $275,000 for the Sanitary Commission.

Ridley eventually moved to California where he died in 1870.  He was interred in an unmark grave in Stockton, but in 1887 on California Admission Day (Sept. 9)  an imposing monument was erected to mark his burial site.

Austin’s mining boom did not last, but the town, unlike many other Nevada boomtowns, has lingered on.  Last month, I took this photo of Austin’s Main Street where Ridley so long ago marched with his flour sack:

Austin Nevada Main Street

Ridley’s store still stands in Austin, but apparently is no longer selling flour:

Gridley Store Austin Nevada

© 2010-2020 Allen Matkins Leck Gamble Mallory & Natsis LLP
For more, visit the NLR Election Law / Legislative News section.

Beltway Buzz: 2021 Labor and Employment Forecast

The results of the 2020 national elections are (mostly) in. Former vice president Joseph Biden is now President-elect Joseph Biden. Democrats have managed to hold the U.S. House of Representatives, but they will be working with the slimmest House majority in years. Control of the U.S. Senate is still not known at this time, though Republicans enjoy a 50–48 majority as we await two runoff elections in Georgia scheduled for January 5, 2021. If Democrats win both of those races, they will seize control of the upper chamber, as the vice president (who under the Constitution of the United States also serves as president of the Senate) can provide a tie-breaking vote in the event of a 50–50 deadlock. Any other outcome in Georgia will tilt the Senate balance in favor of Senator Mitch McConnell (R-KY) and the Republicans.

While the results of the congressional elections may put a damper on a robust Democratic legislative reform agenda, the Biden presidency will still bring a dramatic shift to the federal labor and employment policy landscape. The 180-degree turn in regulatory employment policy priorities that will likely result will undoubtedly create uncertainty for employers, which are already dealing with a pandemic and an unstable economy. Set forth below are the major labor and employment policy changes to anticipate for 2021.

I. Executive Actions

The quickest and easiest way for newly sworn-in President Joe Biden to initiate policy changes will be by rescinding certain executive orders issued by then former president Donald Trump and issuing his own executive orders. Revoking myriad Trump executive actions relating to immigration will top the list, including those relating to refugees and asylees, certain COVID-19–related travel restrictions, and the ban on certain nonimmigrant visas (Presidential Proclamation 10052 of June 22, 2020). In turn, Biden is likely to reinstitute the Deferred Action for Childhood Arrivals (DACA) program, as well as the temporary protected status of certain eligible nationals.

In the employment law space, Biden is expected to revoke President Trump’s Executive Order on Combating Race and Sex Stereotyping, which is opposed by civil rights groups and members of the business community. It is very possible Biden may follow this action with a proactive requirement on federal contractors to require diversity and inclusion or implicit bias training and programs. Additionally, Biden may also attempt to resuscitate a version of former president Barack Obama’s Fair Pay and Safe Workplaces executive order.

II. Congress: A More Modest Agenda

Leading up the election, there was much speculation regarding whether the Democrats would abandon the legislative filibuster in the event that they took control of the Senate. Such a move would allow senators to pass legislation with a simple majority vote (51 votes), rather than the 60-vote threshold that is currently required. Eliminating the filibuster would be a monumental and historic change to the way bills are drafted and passed in Congress. In this scenario, a Senate without the filibuster would enable Democrats to expand the number of seats on the Supreme Court of the United States and to pass legislation dealing with the COVID-19 crisis, voting rights, gun control, climate action, LGBTQ rights, and more.

The elections and political aftermath, however, have created a situation in which the filibuster will more than likely survive. At best, the Democrats would have 50 senators in 2021. A tiebreaking vote by a Vice President Kamala Harris would, therefore, appear to give the Democrats the necessary votes to scrap the filibuster, but Senator Joe Manchin (D-WV) has already stated that he will not vote to eliminate the filibuster, and others in the Senate Democratic Caucus have expressed similar concerns. Thus, with the filibuster likely remaining intact, Republicans will be better able to thwart the Democrats’ legislative efforts, even if the Democrats win both Senate races in Georgia. Similarly, if Republicans prevail in one or both of the Georgia races, Senate Democrats will be able to filibuster Republican bills. (The White House and House of Representatives would also obviously work as a check on the Senate.)

A. Potential Employment-Related Legislation

Of course, this is not to say that the chances of employment-related legislation being enacted are nil. If the political winds blow in just the right way, there is a possibility that one or some of the following bills could be enacted into law.

COVID-19/Economic Relief. As cases of COVID-19 continue to surge and state governments consider reinstituting more lockdown restrictions, there will be continued pressure on Congress to pass an economic stimulus package. Republicans and Democrats are in agreement about the need for funding to combat the virus (e.g., money for vaccines, testing, etc.), assist schools and childcare providers, and provide for a certain amount of expanded unemployment insurance. Like everything else in Congress, however, the devil is in the details regarding particular issues. More polarizing are the Republicans’ demand for liability protections from COVID-19–related lawsuits, as well as the Democrats’ demand for language requiring the Occupational Safety and Health Administration (OSHA) to develop a COVID-19–specific emergency temporary standard. It is unclear whether either side is willing to compromise on these issues.

Pregnancy Accommodation. The proposed Pregnant Workers Fairness Act (H.R. 2694) would clarify protections for pregnant workers under federal discrimination laws and would require employers to provide reasonable accommodation—such as more frequent restroom or water breaks—to those employees. The bill passed the House of Representatives in September 2020 by a vote of 329–73 (including 103 Republicans) and enjoys the support of the business community.

Paid Leave. The political debate surrounding federal paid family/sick leave legislation has evolved dramatically over the last several years. While Democrats have long supported such legislation, Republicans have only recently started to come on board with the concept (though they still have concerns about cost, scope, the need for preemption, etc.). Three recent developments have pushed the debate forward: (1) the increasing patchwork of state and local paid leave law requirements, (2) the new paid family leave benefit for federal government employees beginning in 2021, and (3) the paid family and sick leave provisions of the Families First Coronavirus Response Act (FFCRA) that provided a glimpse of a national requirement. Legislation in 2021 will remain a challenge, but the parties are inching—perhaps incrementally—closer.

Multiemployer Pension Fix. It is getting harder and harder for legislators to keep kicking the can down the road with respect to the multiemployer pension crisis. Accordingly, there is some bipartisanship on this matter in that there is recognition by both parties of the problem. Some combination of premium increases and loans is the compromise position. There could be some action on this issue during the lame-duck session of Congress following the elections, but it could also slip to 2021.

Immigration. On July 10, 2019, the House of Representatives passed the Fairness for High-Skilled Immigrants Act of 2019 (H.R. 1044) by an overwhelming vote of 365–65. The bill would eliminate the 7 percent per-country cap for employment-based immigrant visas. Proponents of the bill have so far been unsuccessful in passing the bill in the Senate via unanimous consent.

B. Employment-Related Activity in the U.S. House of Representatives

Though their majority will be slim, House Democrats will likely reintroduce and seek to advance multiple employment-related bills in 2021. In response, Republicans and the business community will try to peel off a number of Democrats to spoil any potential floor votes. Expect action on the following issues:

COVID-19/Economic Relief. If negotiations break down on a bipartisan economic stimulus, Democrats in the House will likely proceed on their own and move on the Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act, which passed the House of Representatives twice in 2020. Among other provisions, the HEROES Act would:

  • extend Pandemic Unemployment Assistance (for those workers who do not traditionally qualify for unemployment insurance (UI), such as independent contractors); Pandemic Extended Unemployment Compensation (providing an additional 13 weeks of benefits); and the Federal Pandemic Unemployment Compensation (FPUC) program, which provides displaced workers with $600 per week on top of their weekly UI benefits;
  • require OSHA to issue an emergency temporary standard for certain at-risk industries; and
  • extend the FFCRA emergency family and sick leave provisions for the remainder of 2021 and apply them to all employers, regardless of size.

Protecting the Right to Organize (Pro) Act. The Protecting the Right to Organize Act passed the House of Representatives in early 2020. It will be the top labor policy priority for congressional Democrats. The bill would:

  • codify Browning-Ferris Industries (joint employer);
  • codify Specialty Healthcare (gerrymandered units);
  • codify Purple Communications (email access);
  • codify the 2014 “ambush” election rules;
  • codify the 2016 “persuader regulation”;
  • prohibit right-to-work laws;
  • provide for “stealth” card check;
  • codify California’s controversial AB 5 on independent contractors into the National Labor Relations Act (NLRA);
  • provide a private cause of action for unfair labor practices (ULPs);
  • restore and codify the Board’s failed “notice posting” requirement;
  • allow for new civil penalties, including liquidated damages;
  • require binding arbitration for first contracts;
  • overturn the Supreme Court of the United States’ decision in Epic Systems, effectively prohibiting employment arbitration agreements;
  • prohibit employers from permanently replacing strikers; and
  • allow for secondary boycotts.

Worker Flexibility and Small Business Protection Act. Introduced in Congress in September 2020, this bill has not yet gone through the legislative vetting that the PRO Act has. But the bill could quickly draw the attention of congressional Democrats, as it dramatically amends federal employment laws, with a particular focus on independent contractors and temporary workers. The bill would:

  • codify California’s “ABC test” for independent contractors as part of most federal labor and employment laws;
  • greatly expand joint-employer tests throughout labor and employment laws, and extend liability to certain owners, officers, and shareholders;
  • create a “standalone violation” for incorrectly classifying a worker as an independent contractor, rather than an employee;
  • set unique wage and hour standards for certain “transportation and network dispatching workers”;
  • require temporary employees to be paid the same as “direct” employees and require that temporary employees be converted to “direct” employees after one year of service;
  • amend the Fair Labor Standards Act (FLSA) to include a “private attorneys general” provision;
  • require an employer with 100 or more employees to file with the U.S. Department of Labor (DOL) a “supply chain responsibility plan” describing its processes for ensuring that its suppliers and vendors do not violate labor and employment laws in the United States and abroad; and
  • require an employer to publicly post on its website and main entryways its labor and employment law compliance record and “rating” over the last three years, including through the use of emojis.

Paycheck Fairness Act. Among other provisions, the Paycheck Fairness Act would amend the Equal Pay Act of 1963 by replacing the “factor other than sex” defense with a “bona fide factor” defense that must be “job-related” and “consistent with business necessity”; would provide for uncapped compensatory and punitive damages; would require the Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract Compliance Programs (OFCCP) to develop mechanisms for the collection of employee compensation data from employers; and would enact prohibitions on the use of, or inquiry into, applicants’ pay history.

Immigration. The last time Democrats controlled the Senate they passed bipartisan comprehensive immigration reform. Biden has vowed to take another crack at this and promises that he will “commit significant political capital to finally deliver legislative immigration reform.” It is also possible that Democrats will focus on targeted relief measures for Dreamers and/or temporary protected status (TPS) recipients.

Raising the Minimum Wage. The House passed the Raise the Wage Act in 2019. The bill would gradually increase the federal minimum wage over a six-year period to $15 per hour. The bill also indexes the minimum wage to inflation and would phase out the separate minimum wage for tipped employees. While a long shot—especially if the COVID-19 pandemic continues and the economy remains on shaky grounds—it is possible that Senate Republicans would be willing to cut a deal if the terms and legislative package were right.

III. U.S. Department of Labor

A. Who Will Be in Charge?

There is a saying in Washington, D.C., that “personnel is policy.” Whomever Biden nominates to run the various labor and employment related agencies will have an enormous influence on federal labor and employment policy. Democrats may have learned a lesson from former president Obama’s appointment of Congresswoman Hilda Solis to helm the DOL during his first term. Solis did not come into the job with much labor and employment experience and did not advance Democrats’ agenda as quickly as they would have liked. Indeed, the DOL’s regulatory machine really did not hit its stride until former president Obama’s second term, when Thomas Perez became secretary of labor. Thus, look for Biden to appoint a secretary of labor who is aggressive, savvy, and experienced.

The process of taking over functions at the DOL has already begun. Biden announced his “agency review teams” to begin evaluating agency operations in anticipation of the shift in executive power in January 2021. The labor review team (overseeing the DOL, the National Labor Relations Board, and the EEOC, among other agencies) includes many familiar faces from the Obama administration. Individuals such as Jenny Yang (former EEOC chair), Seth Harris (former DOL deputy secretary and acting secretary of labor), and Patricia Smith (former DOL solicitor) will likely join others from organized labor, academia, and progressive think tanks in beginning the initial overhaul of the DOL. This group will likely influence the selection of Biden’s DOL nominees and may even be candidates themselves.

Expect the DOL of the Biden administration to be aggressive from the start, in terms of both regulatory actions and enforcement proceedings. Clawing back some of the initiatives of the DOL of the Trump administration will, of course, be a priority. But beyond that, expect this DOL to go on the offensive with an agenda that is even more progressive than that of the Obama administration’s DOL.

B. Occupational Safety and Health Administration

The ongoing COVID-19 pandemic has thrust OSHA into the spotlight, and workplace safety will likely be the priority of the Biden DOL. First and foremost, this likely means quickly putting forward a nominee to be assistant secretary of labor for occupational safety and health. Additionally, expect OSHA to begin developing a COVID-19–specific emergency temporary standard right away. Enforcement is likely to tick up, too, especially with regard to COVID-19–related complaints. Finally, while it was not abandoned entirely by the current OSHA, a Biden OSHA can be expected to return to a much more aggressive “regulation by shaming” campaign through the use of conclusory press releases.

C. Wage and Hour Division

In addition to an aggressive enforcement strategy, the Wage and Hour Division (WHD) of the DOL will undoubtedly pursue a robust regulatory agenda that could potentially be described as “repeal and replace.” The agenda will likely include the following initiatives:

  • Joint Employer. The Trump DOL’s joint-employer regulation under the Fair Labor Standards Act has been enjoined by a federal court. Whatever the legal status of the regulation, a Biden DOL is expected to “repeal and replace” the rule with a broader and more amorphous joint-employer standard.
  • Independent Contractor. Similarly, if the Trump administration finalizes an independent contractor regulation, it will quickly be targeted for reversal. Senate Democrats may try to repeal it by using the Congressional Review Act (though they are unlikely to have the votes and doing so would severely limit Democrats’ ability to promulgate their own version of an independent contractor regulation). If Congress does not act, the incoming administration will rescind the regulation via rulemaking. The Biden DOL may then proceed to issue its own version of an independent contractor standard, but the controversy surrounding AB 5 in California may give them pause.
  • Overtime. A federal court ruling in late 2016 blocked the enactment of the Obama administration’s overtime rule. Although the Trump DOL finalized its own overtime rule in September 2019 that increased the salary basis threshold, the level probably will not satisfy a Biden DOL, which most likely will want it to be at $47,000 or higher and may also look to make changes to the duties test.
  • Opinion Letters. Opinion letters offer a way for stakeholders to seek assistance from the DOL when confronted with difficult questions as to the application of federal wage and hour law. In 2010, the Obama administration ended the opinion letter process in favor of sweeping Administrator’s Interpretations. The opinion letter program was reinstated in the current administration, but may be jettisoned in a Biden DOL.
  • PAID Program. A Biden WHD can be expected to do away with the Payroll Audit Independent Determination (PAID) program that encourages employers to self-report wage and hour violations.

D. Office of Federal Contract Compliance Programs

In 2019, OFCCP hauled in a record-breaking $40 million plus in legal settlements with federal contractors. That figure does not tell the whole story of the OFCCP in the Trump administration, but is indicative of an aggressive enforcement philosophy that carried over from the Obama administration (despite welcome efforts towards compliance assistance and transparency). Expect a Biden OFCCP to push this enforcement posture even further, particularly when it comes to alleged compensation discrimination (though whoever is running OFCCP in 2021 will have to work around a 2020 high profile ruling against OFCCP that calls into question the agency’s statistical analyses).

Additionally, OFCCP will likely pursue the following changes:

  • Roll back policies and processes established pursuant to President Trump’s Executive Order on Combating Race and Sex Stereotyping.
  • Implement affirmative diversity and inclusion obligations pursuant to a potential executive order.
  • Rescind any regulation relating to religious organizations with federal contracts.
  • Restart the 2014 compensation data collection tool proposal. This regulation never got off the ground and was overtaken by the 2016 wage and hour data collection changes to the EEO-1 form. In part because the EEOC will have a Republican majority through at least mid-2022, OFCCP may seek to revive this proposal.

IV. National Labor Relations Board

Republicans will maintain a majority at the NLRB at least into the summer of 2021, though Democratic member Lauren McFerran will assuredly be named chair in early 2021. She could look to slow down the issuance of case decisions, and especially rulemakings, until reinforcements arrive. Of course, if Republicans retain a majority in the Senate, Majority Leader Mitch McConnell will have a say in who gets confirmed to the Board and when.

Once Democrats gain a majority on the Board, it will come as no surprise that they may seek to roll back current Board policies and return to policies that favor unions. Assuming that Congress fails to enact the PRO Act, a Board with Democrats in the majority may attempt to enact the legislation administratively, where possible. Other action items for a Democrat-controlled NLRB include:

  • Joint Employer. In February 2020, the Board issued a final rule that reestablished the direct and immediate control standard that existed for decades prior to the 2015 Browning-Ferris Industries (BFI) A new Board can be expected to undo this rule and issue its own rule that cements BFI via regulation.
  • Election Procedures. A new Board may look to restore all elements of the “ambush” election rules that went into effect in 2015 but which were amended in 2019.
  • Employee Choice Regulations. A new Board will reverse 2020 final rule changes to the Board’s standards on blocking charges, voluntary recognition, and Section 9(a) bargaining relationships in the construction industry.
  • Other Changes. Over time, expect a Board dominated by Democrats to address the following issues via case law or regulation:
    • Fractured bargaining units (Specialty Healthcare)
    • Employee use of email (Purple Communications)
    • Independent contractors
    • Graduate students
    • Contract bar
    • Secondary activity
    • Employee discipline
    • Dues checkoff
    • Arbitration deferral

V. Equal Employment Opportunity Commission

Recent appointments to the EEOC will give the Commission a Republican majority through at least mid-2022. Further, Republican-appointed general counsel, Sharon Fast Gustafson, will remain in office until 2023. But as with his likely selection of an NLRB chair, Biden can be expected to name a Democratic commissioner (likely Charlotte Burrows) as the chair. In this scenario, Burrows will control the agenda, meaning that the EEOC will try to finalize a conciliation regulation prior to January 20, 2021. Further, the odd dynamic of having a chair who is in the minority will undoubtedly influence, and likely delay, the Commission’s position on a pending National Academy of Sciences analysis of EEO-1 pay and hours worked data, as well as the development of a rule on employer-sponsored wellness programs.

Of course, in Democratic hands, the Commission can be expected to explore ways to collect compensation data from employers. Additionally, a Commission with Democrats in the majority could revoke a September 2020 opinion letter clarifying EEOC’s interpretation and enforcement of “pattern or practice” litigation under § 707(a) of Title VII of the Civil Rights Act of 1964. The letter confirms that when pursuing § 707 pattern-or-practice cases, the EEOC must follow the same administrative prerequisites as when pursuing § 706 cases on behalf of individual employees, such as the requirement of an underlying charge of discrimination and engaging in conciliation.

VI. Immigration

Chances are that a Biden presidency will be friendlier to business immigration needs than the current administration, but this does not mean that there won’t be any challenges for employers that supplement their work forces with high-skilled foreign labor. Biden has a populist/protectionist streak and his campaign website states the following:

Biden will work with Congress to first reform temporary visas to establish a wage-based allocation process and establish enforcement mechanisms to ensure they are aligned with the labor market and not used to undermine wages. Then, Biden will support expanding the number of high-skilled visas and eliminating the limits on employment-based visas by country, which create unacceptably long backlogs.

Thus, employers should not expect all scrutiny of the high-skilled nonimmigrant visa programs to disappear with a Biden victory. That being said, expect a Biden administration to:

  • restore DACA and TPS programs;
  • reaffirm the rule allowing employment authorization for certain H-4 spouses of H-1B nonimmigrants;
  • rescind (or not defend) the U.S. Department of Homeland Security’s rule on Strengthening the H-1B Nonimmigrant Visa Classification Program and accompanying DOL wage rule;
  • rescind the Inadmissibility on Public Charge Grounds final rule;
  • evaluate and possibly rescind current travel bans, although the COVID-19 travel bans may take time to rescind as the situation evolves;
  • rescind the proposed “duration of status” rule for nonimmigrant academic students, exchange visitors, and representatives of foreign information media; and
  • rescind the proposed rule on the collection and use of biometric data in the enforcement and administration of immigration laws.
© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.
For more articles on labor law, visit the National Law Review Labor & Employment section.

Maintaining Workplace Civility in an Era of Heightened Divide

Do as adversaries do in law, strive mightily, but eat and drink as friends.

William Shakespeare, The Taming of the Shrew, Act I, sc. 2

In the aftermath of the historic and divisive election, many of us welcome an end to the besiegement of ads, media commentaries, Facebook and Twitter postings, etc. that are not only uncivil, but in many cases just plain nasty.

The political climate of brinkmanship, rudeness, and lack of cooperation (let alone collaboration) appears to be increasingly reflected in the workplace. Collectively these behaviors are called “incivility,” and have become so prevalent that many scholarly studies have been conducted on the topic. Google “incivility in the workplace” or visit the Society for Human Resources Management (SHRM) website and you’ll get the idea.

What is “civil” and “uncivil” behavior in the workplace, and what are the legal and other implications of uncivil behavior?

“Civility” is a collection of positive behaviors that promote courtesy and respect. The word has its origins in the Latin word “civis,” which in Latin means citizen. Keith Bybee, the author of How Civility Works, put it this way in a 2019 NPR interview: “Civility is the baseline of respect that we owe one another in public life.”

To paraphrase the old Irish proverb by substituting “civility” for “diplomacy”, “Civility is telling someone to go to hell in such a way that they will look forward to the trip.”

On the flipside, what is “incivility”? One study describes it as “a low intensity deviant behavior with ambiguous intent to harm” (Anderson and Pearson, 1999). Other studies define it more thoroughly as bad or rude behavior, with diminished use of basic courtesies such as “please” and “thank you,” abrupt and curt language, especially when using technological communication, a lack of respect for leaders and colleagues, with behaviors including belittling, interrupting or ignoring others, spreading rumors or gossip, and sending “nasty grams” to co-workers. (Akella and Johnson, 2018, citing many other studies.)

Many employees appear to be under the impression that they have an absolute First Amendment right to say or send whatever they want to in the workplace. This is simply not true, especially in the private sector. Employers have the right and under some circumstances the duty to expect their employees to act toward one another with basic respect and courtesy. Unfortunately, email and social media have removed many of the “filters” that were previously in place in terms of the lack of ability to make an immediate and often not thought-out response, and that unfortunately has bled over to in-person communications. There are now unlimited opportunities for knee-jerk reactions that are not thought through before hitting the SEND button.

SHRM and other reputable sources report that numerous studies show that incivility in the workplace leads to lower production, higher turnover, lower profitability, poorer customer service and decreased morale.

So how might employers rein in on such behavior in the interest of maintaining a desirable workplace culture and mitigating liability? Some employers have addressed the problem of incivility by instituting Codes of Conduct designed to advise employees what is expected of them in terms of their interactions with one another. Of course, such Codes are not worth the space they take up on a network unless they are accompanied by commitment from leadership to communicate, train and enforce the Codes, and truly reflect the mores and values of the organization. Ideally, supervisors, who after all are responsible for enforcing Codes of Conduct on the “front lines”, should be involved in their creation and in all cases should be thoroughly trained regarding their contents and what to do in the event of a violation.

Codes of Conduct sometimes include other matters such as conflict of interest, gifts and gratuities, and use of Company resource policies, and are generally enforced through the Company’s disciplinary procedures.

From a legal standpoint, incivility is not generally regarded as in and of itself constituting illegal harassment or illegal conduct under discrimination laws, although it could and should be regarded as behavior which could easily escalate to that level if unchecked.

The coming days and weeks will tell us a lot about how people handle the inevitable fallout from the election, and of course a lot of that conversation will occur at the workplace. It’s important, even vital, to workplace harmony and even more important, to the fiber of who we are as a civilized nation to have those conversations in an atmosphere of mutual respect.

© 2020 Davis|Kuelthau, s.c. All Rights Reserved
For more articles on the workplace, visit the National Law Review Labor & Employment

A Biden Board at the NLRB: What to Expect and When

This past Labor Day, President-elect Joe Biden told a group of union supporters that he would be “the strongest labor president you have ever had.” Just how true those words will be hinges on what party controls the Senate after the dust settles on this election season.

As part of his labor goals, Biden has championed the PRO Act, a substantive and drastically pro-union rewrite of the 85-year-old National Labor Relations Act that was passed by the House in early 2020. The PRO Act would codify the ambush election rule and micro-unit policy, neuter employers’ ability to mount counter-campaigns to union organizing attempts, and weaken right-to-work laws that protect employee free choice. The ambitious legislation would also permit the NLRB to issue heavy monetary penalties on employers for violating the NLRA and would more strictly require bargaining after an initial certification of a new union.

The legislation would be destructive to companies, but it seems unlikely to become law in today’s political landscape. Indeed, a less ambitious pro-labor bill, the Employee Free Choice Act, failed to pass a Democrat-controlled Congress in 2009.

But even if the PRO Act does not come to fruition, one thing is clear: there will be changes. Employers have benefitted greatly from the pro-employer NLRB over the past four years. We have seen a flurry of positive changes including wins on issues like joint employers, micro-units, abolishing the ambush election rule, and making it easier for employers to make unilateral changes in the workplace.

When and how change might occur under President-elect Biden will largely depend on when he is able to gain control of the NLRB.

The NLRB is currently composed of three Republican members and one Democrat, with one vacant seat. Assuming President-elect Biden is able to fill the vacant seat, his first opportunity to flip control of the Board in his favor will come in August 2021, when Trump appointee Bill Emanuel’s seat expires. NLRB General Counsel Peter Robb’s term expires in November 2021. Even then, control depends on the Senate confirming both the new general counsel and Board member positions.

In short, we could expect there to be pro-union changes at the NLRB beginning in the fall or winter of 2021. This timeline is similar to the beginning of the Trump administration, when we saw the biggest flurry of pro-employer rulings come in December 2017 after Republicans gained control of the NLRB. Once Biden gains control, we might see a strategy similar to that employed by the Trump and Obama Boards. A mix of precedent-overturning NLRB decisions and rulemaking could be in store for employers.

© 2020 BARNES & THORNBURG LLP
For more articles on the NLRB, visit the National Law Review Labor & Employment section.

Key Environmental Law and Policy Issues to Watch in the Biden Administration

On November 7, Joe Biden was projected to become President-elect. This news alert provides a high-level review of issues to watch and changes to expect in a Biden administration. Although the makeup of the Senate is not yet entirely clear, it seems that there will not be a change in Senate leadership and that the House will remain under Democratic control. The ultimate fate of the Senate majority will be decided on January 5, 2021 with the runoff of the two Georgia Senate Seats. For the Democrats to become the majority, they would need to prevail in both Senate races.

The next few years will see significant shifts in U.S. environmental and natural resource law and policy, as well as changes in political and perhaps some career personnel at the U.S. Environmental Protection Agency (EPA) and other federal agencies that establish and implement U.S. environmental regulation. The next six months look to be especially consequential, as the Trump administration seeks to finalize certain ongoing efforts while the new Biden administration identifies and implements early priorities. Although some form of the stimulus bill may get bipartisan support, and Congress must yet fund the government through the appropriations process, we do not expect any major environmental legislation during the remainder of the Trump administration. The Trump administration, however, still has complete Executive Branch authority and can still issue new rules, pursue enforcement actions, and promulgate significant rules. Similarly, without control of the Senate, a Biden Administration will be unlikely to pass significant environmental legislation, particularly a climate bill, but will be able to direct policy through the Executive Branch.

As events unfold, we will provide updates. Please contact the authors, your usual B&D attorney, or any member of our Election Analysis Task Force (including several former senior EPA and U.S. Department of Justice (DOJ) officials) for more information.

Key Takeaways

The Regulated Community should consider taking the following actions in the short term:

  1. Administrative litigation and rulemakings. Know where you stand with respect to ongoing litigation (which may be stayed in the early days of a new administration) and pending rulemakings, as well as recently-promulgated rulemakings or Executive Orders that may be subject to full or partial reversal.
  2. Climate, environmental justice, clean energy, and vehicles. Anticipate aggressive action by the Biden administration on climate change, environmental justice, and clean energy and vehicle technologies. If Congress remains divided, legislation is unlikely to occur, but much can be done through Executive Order and other executive branch action. The administration will also promote infrastructure reform which could be significant and will require legislation that may be able to get bi-partisan support.
  3. Federal-state coordination. Anticipate renewed state-federal coordination, with exceptions and some “patchwork quilt” effects, as the Biden administration EPA, the U.S. Department of the Interior, and DOJ join forces with progressive states on enforcement and implementation of policy priorities. Many of the environmental statutes are designed to be implemented cooperatively between the state and federal governments. This “cooperative federalism” is a balance that in many but not all cases, Trump officials favored with a more limited federal government role and a narrow interpretation of the scope of federal statutory authority. Expect Biden’s EPA and DOJ to increase federal enforcement, directing the agencies to pursue appropriate cases to the fullest extent permitted by law.
  4. Criminal enforcement. Expect criminal enforcement to be more vigorously pursued.
  5. International engagement. Prepare for renewed engagement on international environmental and waste treaties, as the Biden administration reengages in many of these issues.
  6. New key administration officials. Pay attention to new key officials in the new administration, some of whom will probably be announced in December. Generally speaking, cabinet-level officers are announced first. Below is a list of the cabinet-level officials in the areas of energy, environment, project development, and worker safety and the Senate committee that would review their nomination.

Immediate (Pre-Inauguration) Considerations

Transition Process

President-elect Biden has an established transition team with five co-chairs and a 15-person advisory board. The leaders are as follows:

  • Former U.S. Sen. Ted Kaufman
    Appointed to the U.S. Senate from Delaware on Jan. 15, 2009 and served until Nov. 10, 2010.
  • Jeffrey Zients
    CEO of Cranemere, a private equity firm. Past Director of the National Economic Council and Assistant to the President for Economic Policy, at the White House Feb. 2014-Jan. 2017.
  • Gov. Michelle Lujan Grisham
    Elected Governor of New Mexico in Nov. 2018. Served three terms in the U.S. House.
  • U.S. Rep. Cedric Richmond
    Member of the U.S. House representing LA-2. First elected in Nov. 2010.
  • Anita Dunn
    Senior advisor on the Biden campaign.

President-elect Biden has also indicated that he intends to name the White House Chief of Staff very soon.

Other specific transition steps typically occur. In September, the Office of Management and Budget (OMB) sent a memorandum to all of the federal agencies titled “Guidance on Presidential Transition Preparation.” The memo required each agency to designate a senior career official as in charge of the transition, and outlined its purpose as follows:

“This memorandum provides guidance to agencies on transition preparation requirements and deadlines consistent with the statutory obligations in the Presidential Transition Act of 1963, as amended (3 U.S.C. § 102 note) (the Act) and best practices. In addition to the ongoing work required by the Act, this guidance is intended to ensure the seamless continuity of Federal government operations and services during a transition to a second term of an administration or to a new administration. It also increases the transparency of the transition process. As agencies implement the guidance outlined below, officials should approach the work in ways that are responsive to the ongoing needs of the current administration while balancing the preparations for a potential new administration.”

Biden’s transition team has already signed a memorandum of understanding with President Trump’s General Services Administration to begin planning for a potential handover of power. The document is required under the Presidential Transition Act and formalizes how the federal government will go about assisting Biden’s transition team ahead of Election Day. For the memorandum to be effective, the GSA Administrator Emily Murphy, must sign a letter acknowledging Biden as the President-elect.

In addition to the transition team, “landing teams” will meet with each federal agency to collect information and interview selected individuals to prepare for the new administration. Those landing teams are not agency officials and do not receive confidential or privileged information, but are extraordinarily valuable to the new administration. They report regularly to the incoming White House on the immediate issues facing the administration and provide an important conduit between the incoming President’s team and the executive agencies.

Personnel

While landing and transition teams have already begun work (or will soon increase the pace of their work), the Trump administration still has nearly three months with which to complete its work. Amidst the changeover in political appointed positions, career staff will continue to make decisions and move matters forward. Ensure that your relationships with career officials at headquarters and regional offices are sound, as you will need to rely on them over the next six months and beyond.

It is typical for virtually all of the outgoing administration political appointees to resign before the new administration starts. The exception is often the U.S. Attorneys, who are sometimes held over in their positions. At the beginning of a new administration, political positions are either temporarily filled by political appointees or often with senior career officials.

Ensure that your relationships with career officials at headquarters and regional offices are sound, as you will need to rely on them as appointed positions change over the next six months.

Post-Inauguration Administrative, Legislative, and Judicial Process

Expect the new administration, upon taking office, to immediately issue a directive withdrawing pending regulations that are not yet published in the federal register. This could include final rules that are awaiting publication. This is a standard approach by a new administration.

The new administration will also review executive orders and guidance documents and rescind those that conflict with Biden policy direction. There are over a dozen, maybe two dozen, different executive orders and many, many guidance documents relevant to environmental policy direction. These do not have the force of law but often direct agencies to take specific actions. The Environmental Law Institute and Harvard Law School’s Environmental and Energy Law Program have produced useful references on this subject. Note that rescinding an Executive Order, which can be done immediately, does not rescind implementing actions, such as new regulations finalized in response to the Executive Order.

Without democratic leadership in the Senate, significant environmental legislation is not expected, with the possible exception of a bi-partisan infrastructure bill. Without legislation, Biden will be particularly interested in moving policy forward using Executive Branch tools. A Biden administration will want to issue new executive orders to re-direct the federal government consistent with his policy initiatives, such as environmental justice. For example, he has already pledged to revise and reinvigorate the 1994 Executive Order 12898 (EO 12898) Federal actions to Address Environmental Justice in Minority Populations and Low-Income Populations. In addition, he has pledged that he would rejoin the Paris Accords on the first day of the administration, which can be done by Executive Order.

DOJ will likely seek to stay federal litigation, particularly litigation challenging rulemaking, to allow time to develop new administration positions. The administration would then have the option of supporting the regulation, rescinding it through the Administrative Procedure Act process, and/or replacing it with a new regulation. Currently, litigation is pending on several high profile rules, including the Navigable Waters Protection Rule that defines the scope of Clean Water Act jurisdiction, the National Environmental Policy Act revisions, and the Affordable Clean Energy Rule which regulates greenhouse gases from coal-fired electric generating units. In addition, there is active litigation on the California waiver, which determines whether California will be allowed to continue to set vehicle emission standards.

© 2020 Beveridge & Diamond PC
For more articles on environmental law, visit the National Law Review Environmental, Energy & Resources section.

Election Results: New Data Privacy and Security Laws

Although the Presidential race is unconfirmed at the time of this writing, there are several data privacy and security laws to put on your radar following the election this week.

Here is a brief list of laws that passed that we are aware of so far. We will provide more information as news breaks, but in this ever-changing area, we want to alert you to some important changes in the state law landscape following the election.

California’s Prop 24

 This proposition updates California’s CCPA, now referred to as California Privacy Rights Act (CPRA). In addition to other provisions (link Deb’s blogs from today and last week here), from a compliance perspective, it establishes a first-of-its-kind enforcement agency, the California Privacy Protection Agency, which will oversee enforcement of CPRA, and further establishes fines and penalties for violation of the law. The law goes into effect on January 1, 2023, for all data that are collected starting on January 1, 2022. Keep this one on your compliance radar and we will update you further.

Maine Approves Referendum on Limiting Use of Facial Recognition Technology 

Maine voters approved Referendum Question B, which strengthens the ban on the use of facial recognition surveillance technology by police and public officials. 

Massachusetts Votes in Favor of Ballot Question 1 

Massachusetts voted in favor of Ballot Question 1, which would require car manufacturers to equip vehicles using telematic systems with an open-access data platform starting with the model year 2022.

A detailed analysis of Ballot Question 1 is here.

Michigan Amends Constitution to Require Warrant for Access to Electronic Data

In Michigan, it appears that voters have approved an amendment to the state constitution to require search warrants for law enforcement to access electronic data and communications. The measure amends that part of the constitution that provides for the protection against unreasonable search and seizure.

Staying abreast of new state laws and regulations is a complex process for those charged with compliance adherence. We will continue to update you on the most significant changes to assist you in your compliance efforts.

Copyright © 2020 Robinson & Cole LLP. All rights reserved.
For more articles on privacy, visit the National Law Review Communications, Media & Internet section.

The 2020 Election: Previewing the Potential for Shifts in Labor & Employment Law

As Election Day approaches, employers nationwide consider the changes that may come with a victory by Senator Joseph Biden in the Presidential race and/or shift in representation in the U.S. Senate.  While we cannot be certain of what the future holds—either in the election or the subsequent legal landscape—the Bracewell Labor & Employment team has prepared the following information in an effort to highlight areas of employment law that may transform, in both the near and far term, in the event of such changes in the country’s elected officials.

Labor Relations, Collective Bargaining and Union Organizing

  • Senator Biden strongly supports unions, stating that “Everything that defines what it means to live a good life and know you can take care of your family  . . . is because of workers who organized unions and fought for worker protections.”
  • Specifically, he supports:
    • Provisions of the Protecting the Right to Organize Act (PRO Act) – which would institute financial penalties on companies that interfere with union organizing – and supports legislation that would hold company executives personally liable for such interference.
    • Funding a “dramatic increase” in the number of investigators at the National Labor Relations Board (NLRB).
    • Shorter timelines for union election campaigns and bans on mandatory employer meetings with employees during union organizing campaign.
    • Creating a federal right to union organizing and collective bargaining for all public sector employees.
    • Creating a cabinet-level working group that will “solely focus on promoting union organizing and collective bargaining.”
    • Extending the right to organize and bargain collectively to independent contractors.
  • While recent prior Democrat administrations were not able to strengthen organized labor in the way Senator Biden’s platform hopes to achieve, at a minimum, if Senator Biden were to become President, his appointments to the NLRB would return a pro labor union majority to the agency.  In that case, the NRLB decisions and rule making would strengthen union organizing and limits on workplace rules.

Workplace Rules

  • President Donald Trump shifted the limits of employer workplace policies by undoing pro-union rulings the NLRB made under former President Barack Obama.  A Biden Presidency would likely swing such rulings back to where they were in the Obama era.
  • Employees should look for potential changes in the following areas:
    • Facially neutral workplace rules:  The Trump NLRB, in its Boeing Company decision, ruled that an employer does not necessarily violate the NLRA by maintaining a facially neutral work rule, policy or handbook provision that could be reasonably construed to interfere with union or other protected concerted activity protected under Section 7.  This overruled Lutheran Heritage Village-Livonia, which under the Obama administration, was frequently applied to invalidate facially neutral employer rules adopted and applied for legitimate business reasons unrelated to an employee’s Section 7 activity. Examples of Section 7 activity include the right discuss wages and working conditions and the right to organize.
    • Workplace investigations: In its 2015 Banner Health decision, the NLRB prohibited employers from requiring employees to keep workplace investigations confidential.  Last December, the Trump NLRB, in Apogee Retail, reversed the Banner Health decision, finding that employer policies that require confidentiality during internal investigations are per se lawful.
    • Employer e-mail: As a result of the NLRB’s 2014 Purple Communications decision, employers could not prohibit employees from accessing company email for union-related communications.  The Trump NLRB, in its Caesar’s Entertainment decision, restored employer rights to prohibit use of its email systems for non-business purposes.

Employment Law Developments and Enforcement

Senator Biden supports the following legislation:

  • The Equality Act
    • A proposed law that would codify anti-discrimination protections for LGBTQ individuals in employment as well as other contexts, including housing.
    • Ensure protection from associational discrimination – discrimination on the basis of a person’s association with an individual in a protected class.
    • The Equality Act passed the House of Representatives but has not come to a vote in the Senate.
  • Paycheck Fairness Act
    • A proposed law that addresses wage discrimination on the basis of sex.
    • Amends equal pay provisions of the Fair Labor Standards Act to restrict use of the bona fide factor defense to wage discrimination claims, enhance non-retaliation provisions, make it unlawful to require an employee to sign a contract or waiver prohibiting the employee from disclosing information about the employee’s wages and increase civil penalties for violations of equal pay provisions.
    • Prohibits employers from screening job applicants based on their salary history or requiring salary history during the interview or hiring process.
    • Requires EEOC to issue regulations for collecting compensation and other employment data from employers according to the sex, race, and ethnic identity of employees for use in enforcing laws prohibiting pay discrimination.
    • The Paycheck Fairness Act passed the House of Representatives but has not come to a vote in the Senate.

Department of Labor: Independent Contractors, Wage Changes and Federal Contractors

  • As stated above, Senator Biden supports the PRO Act:

    • Increasing the standard to classify workers as independent contractors
    • Expanding the definition of “joint employer”
    • Criminal liability for employer interference with organizing efforts
  • DOL, Wage & Hour/FLSA:  Recent Rules & Potential Changes
    • (Existing) Final Rule increasing the salary threshold to $684/week
      • If the minimum wage is increased to $15/hr, then the salary threshold would likely increase to retain a sufficient gap between exempt and non-exempt employees under the FLSA ($15/hr = $600/wk)
    • (Existing) Final Rule expanded Section 7(i) overtime exemption for retail and service industries by withdrawing the dated list of businesses with “no retail concept.”
      • Likely not affected
    • (Existing) Final Rule allows bonuses or other incentives to salaried, nonexempt employees without defeating the fluctuating workweek” method described in 29 CFR 778.114.
      • Likely not affected
    • (Existing) Final Rule on joint employer describing “vertical” and “horizontal” joint employer scenarios (enjoined by federal district court) to the extent the DOL too narrowly defined joint employment)
      • This may be challenged.
    • Proposed rule adopting the “economic realities” test for  independent contractors and emphasizing the factors of control and opportunity for profit and loss.
      • This may be challenged.
  • Senator Biden’s general proposals:
    • Increased penalties (in addition to current FLSA remedies and liquidated damages) for worker misclassification.
    • Senator Biden proposes to increase DOL/FLSA enforcement effort.
    • Senator Biden proposes to increase staffing of agencies.
    • Senator Biden proposes  greater collaborative enforcement efforts between various labor agencies (NLRB, EEOC, IRS, State unemployment and labor agencies).
  • Executive Orders & the Office of Federal Contract Compliance Programs (OFCCP)
    • Executive Order 13950, “Combating Race and Sex Stereotyping” prohibiting federal contractors from instilling race or sex stereotyping or scapegoating in workplace diversity and inclusion training
      • Likely withdrawn by Senator Biden administration
  • Notably, the OFCCP under the Trump Administration collected greater enforcement fines than expected –  e.g., OFCCP collected more than $21 Million from Dell Technologies, Goldman Sachs and Bank of America primarily relating to gender/race wage disparity claims.

COVID Response – Economic and Public Health Policies Affecting Employers

  • From “Unemployment” to “Employment Insurance”:
    • Focus on maintaining employment at reduced hours, with federal government supplementing worker wages
    • 100% federal financing for short-time compensation plan that is “automatically extended based on economic and health conditions” (without the vote of Congress)
    • Tax credit for employer’s extra health care costs
  • COVID:
    • Create Pandemic Testing Board to “guarantee regular, reliable and free access to testing for all, including every worker called back to the job”
    • Hire 100,000 Americans to conduct contact tracing
    • Ensure emergency paid leave for all who contract COVID-19 or need to care for a loved one with COVID-19
    • “Ensure worker protection and accountability” including tasking OSHA with “setting and enforcing a rigorous emergency temporary standard”
    • Equip small business with a “restart package” to retain and rehire workers
  • Schools – Issuing “basic, objective criteria” at the federal level to guide school reopening and passing significant emergency federal funding for school.

OSHA and Workplace Safety

  • Senator Biden has committed to reinstating a variety workplace safety and health regulations altered during the Trump administration, such as regulations requiring companies to report their workplace injuries.
  • He also has promised to increase the number of investigators in the Occupational Safety and Health Administration (OSHA) and the Mine Safety Health and Administration (MSHA) and to direct OSHA to substantially expand its enforcement efforts.

Employment Agreement Restrictions

  • Senator Biden has promised to will work with Congress to eliminate all non-compete agreements, except the very few that are absolutely necessary to protect a narrowly defined category of trade secrets, and outright ban all no-poaching agreements.
© 2020 Bracewell LLP
For more articles on the election, visit the National Law Review Election Law / Legislative News section.

Which Way will the House Go? Democratic or Even More Democratic?

As we head towards the election on November 3, 2020, the question is not whether the US House of Representatives will remain in the hands of the Democrats. Polling suggests that is a near certainty. The question is by what margin they will control the chamber. Democrats currently control 232 seats, while Republicans control 197 seats, with one independent and five vacant seats. The number of seats controlled by Democrats in the 117th Congress has significant implications for Democrats’ ability to forward their agenda, especially if they are also in control of the White House and the US Senate.

Below we take a look at a few of the structural forces at play in the House elections and identify key races to watch on election night.

The Uphill Challenge for Republicans

On election night 2016, Republicans controlled 241 seats in the House. The 2018 election went disastrously for Republicans as they lost control of the House for the first time since 2010. A Republican return to control two years later was always going to be an uphill battle. The last time a party regained control of the House a mere two years after losing it was in 1956 when Democrats retook the House.

House Republicans are going into the cycle with 31 of their members retiring. By comparison, Democrats have only 12 members retiring. The incumbency advantage in House races has traditionally been significant. With Republicans having to defend 31 open seats while trying to win back enough seats to retake the House, the proposition of a productive election night becomes all the more challenging.

The Challenge (and Opportunity) For Democrats

Since the 1994 Republican takeover ended 40 years of Democratic rule of the House, we have seen three change elections: 2006, 2010 and 2018. A change election occurs when the minority party flips a significant number of seats previously held by the majority party. The challenge for the new majority party after winning a change election is to keep those seats from immediately flipping back to the other party in the next election. This is one of the key challenges that House Democrats face on November 3. In order to keep their majority, Democrats must hold seats that Republicans won in 2016 with Donald Trump at the top of the ticket.

Democrats are also attempting to expand the electoral playing field with competitive candidates in as many of the seats being vacated by retiring Republicans as possible. This will allow Democrats to potentially grow their majority.

A Time Zone Approach to Reading Election Night

Below are 24 seats that will be important for deciding party control and margin in the House. They are currently evenly divided between Democrats and Republicans, 12 to 12. The charts below are divided by time zone for your convenience as you follow along on election night.

The Democratic seats are predominantly held by incumbents seeking reelection for the first time with President Trump at the top of the ticket. Democrats’ ability to hold these seats is critical to growing their margin in the House. If Democrats lose these seats while not picking up Republican seats, it will be a very bad night for the Democrats.

The Republican seats are a combination of incumbents seeking reelection and open seats. If Republicans lose these races in states such as California, Pennsylvania and New York, it may be indicative of a defeat at the top of the ticket hurting the party down the ballot.

Time Zone Chart

How Much Does Margin Matter in the House?

It goes without saying that the margin in the House matters—but how much? It really comes down to the ideological diversity within the majority. If the majority party has 225 members who vote in ideological lockstep, then it doesn’t matter whether the majority party ultimately has 235, 255 or 275 votes in the House.

Ideological diversity is better understood in terms of a bell curve. On one tail of the curve are members who are more ideologically strident and represent districts that support their position: the far left or far right of the party. On the other tail of the curve are members who represent toss-up districts and who, regardless of their personal ideology, must be more careful with their votes. The vast majority of the party may be largely in ideological agreement with their more strident members but are willing to make compromises to achieve policy outcomes that protect members in toss-up districts. The difficulty governing in the House comes when the members in toss-up districts and/or the strident members are too numerous and refuse to vote for any compromise.

When the ideologically strident members refuse to compromise, we call that the John Boehner problem. When Speaker Boehner led a Republican majority with 234 members but faced a far-right flank of 25 members committed to opposing all legislation that wasn’t exactly what they wanted, it effectively limited his ability to lead the House. In the latter part of his speakership, Boehner regularly had to make compromises with the Democrats that gave the minority vastly more influence in the final legislation than they typically command.

In 2009, Democrats had 257 seats in the House and still struggled to secure 218 votes to pass the Affordable Care Act. The problem then was too many members from toss-up seats and too many members who were not as far left ideologically as the majority of their caucus. The current Democratic majority of 232 is arguably less ideologically diverse than the larger 2009 majority.

With a robust progressive agenda on the table for 2021, Democrats may face the challenge of garnering sufficient support on critical legislation from the ideologically strident members who may be reluctant to compromise.

The margin will still matter significantly if Democrats control the White House, the Senate and the House and seek to move major progressive legislation. The effort to get to 218 votes will always be a challenge. Democrats will have to meet that challenge while satisfying the vast sweep of their majority and their more ideologically strident members. Doing so will be easier if there are 255 Democrats as opposed to 245 Democrats in the House.in the aftermath of the general election, which will make the politics of that vote an event unto itself.

© 2020 McDermott Will & Emery
For more articles on the election, visit the National Law Review Election Law / Legislative News section.

Senate Election Preview

Control of the US Senate is never inconsequential. However, control of the Senate at the end of this election cycle seems to be significantly more consequential than previous cycles. If former Vice President Joe Biden is elected president, his ability to deliver on the Democratic agenda will depend on Democrats taking control of the Senate, and the margin by which they do so. If President Trump is reelected, his administration’s ability to function normally in a second term would improve if Republicans maintain control of the Senate and are able to approve his nominees.

HISTORICAL CONTEXT

Every Senate election cycle, and every individual election within an election cycle, is what academics would refer to as an independent event. Every six years for a given Senate seat, each campaign and its outcome is a function of the individual candidates, the actions of their campaigns, and the current circumstances surrounding those candidates and campaigns. History is important to provide context, but the outcomes are independent from the history.

Nonetheless, history tells us something about odds, and historic experience is illuminating as we look to predict potential 2020 Senate outcomes, because presidential victories, driven by state-specific Electoral College results, tend to align with Senate results too. For example, if a presidential candidate carries Nebraska, chances are high that the Senate candidate of the same party also will win in Nebraska. Going back through election history, four specific trends are valuable for considering the Senate outcome in this election cycle. This is not to say these trends predict the outcome in any specific race, but rather each example speaks to how each outcome would fit, or not, within trends over the last two decades or longer.

  1. If Biden wins the presidential election, the White House would change party ownership. The last time the White House changed party ownership and the new owners didn’t also control the Senate was the election of Richard Nixon in 1968. If Biden wins and the Senate is not also under Democratic control, it would be the first time in more than 50 years that an election produces a split White House and Senate.
  2. A president that wins reelection does not lose the Senate. This is not to say that a president winning reelection must flip the Senate. Richard Nixon and Bill Clinton won reelection while the Senate remained under control of the opposition party. Since the Civil War, how many times has a president running for reelection lost control of the Senate in the same election? Never. Trump winning reelection and Republicans losing control of the Senate would be a first.
  3. In 2016, Republican Senate candidates won every state that President Trump won. Where Trump lost, the Republican candidate lost. The last Republican to win a Senate race when the Democratic candidate for president won that same state was Susan Collins in Maine in 2008. The last Republican to defeat a Democratic incumbent in a presidential election year was John Thune over Tom Daschle in 2004. No Republican Senate candidate has defeated a Democratic incumbent while the Democratic presidential candidate won the same state in the last 20 years. If Biden wins a state, history favors the Democrats holding or flipping the Senate seat.
  4. In 2012, four Democratic Senate candidates won states that Mitt Romney won, although none of them defeated an incumbent Republican senator. The last time a Democratic defeated an incumbent Republican senator while the Republican presidential candidate won the state was Mark Begich over Ted Stevens in 2008, and prior to that Mel Carnahan over John Ashcroft in 2000. For Democrats to take decisive control of the Senate (a margin of two or more seats), they will need to win seats that run counter to outcomes over the last 20 years.

With this historical context in mind, below we provide additional context for the Senate seats that could decide how the politics in the Senate will function in 2021.

LIKELY REPUBLICAN

Democrat Doug Jones won election to the Senate from Alabama with a surprising special election victory over the highly controversial Republican candidate Roy Moore. In a presidential election year, with Republicans fielding a significantly less controversial candidate, Tommy Tuberville, Alabama is the Senate seat most likely to change parties in the 2020 election. Count this as a likely Republican pick-up.

LEANING DEMOCRATIC

The three most endangered Republicans in the Senate are Susan Collins (Maine), Cory Gardner (Colorado) and Martha McSally (Arizona). Biden is highly likely to win Colorado and Maine. Thus, for Gardner and Collins to survive will require significant ticket splitting. While McSally has the advantage of Trump being the favorite in Arizona, she is running for election as an appointed incumbent who has consistently polled behind throughout the race. If Republicans win any of these three Senate seats and pick up Alabama, Democrats gaining control of the Senate is unlikely.

THE ONES THAT DECIDE THE MARGIN

If Biden wins the White House and Democrats win the three toss-up races while simultaneously losing Jones in Alabama, one of the following seats must go to the Democrats for them to take functional control of the Senate : Iowa, Montana or North Carolina. These three states are all considered highly competitive. Accordingly, for Democrats to take control of the Senate and expand their working margin for 2021, they will have to defeat Republican incumbents in three states that President Trump won in 2016. At the presidential level, Iowa and North Carolina are toss-ups. The better Biden does in those two states, the more plausible it is for the Democrats to upset the Republican incumbent. For the Democrats to defeat Republican incumbent Steve Daines in Montana in a presidential year would be something atypical in the last generation, as Montana has consistently voted Republican in presidential elections.

THE LANDSLIDE

What does the bottom falling out look like for Republicans in the Senate? If Biden clearly wins the White House, taking as many electoral votes as Obama did in 2008 (somewhere around 365), and is competitive in close races in typically red states, other Republican incumbents could be in danger. John Cornyn (Texas), David Perdue (Georgia) and Lindsey Graham (South Carolina) are all in potential jeopardy in this scenario. But it is worth remembering that, as discussed previously, in the last 20 years only two Republican senators have lost reelection in a presidential election year in which the Republican presidential candidate wins their state, and both of those instances occurred under unusual circumstances.

NOT COMPLETELY OFF THE TABLE

There are two races on each side that at least warrant a passing comment because the outcome is not the certainty that we see in other Senate races that are considered safe seats. On the Republican side, the open seat in Kansas and, of course, Mitch McConnell’s seat in Kentucky are seats Democrats dream of carrying on November 3. While not impossible, those Senate seats changing hands seems improbable. Alternatively, in a world where Republicans have a better day than conventional wisdom might expect, Democrats would be concerned about Gary Peters (Michigan) and Tina Smith (Minnesota). Of the four mentioned here, Peters is the most plausible upset because of the potential that Trump could win Michigan.

A RUNOFF TO WATCH

It is highly unlikely that the winner of the Georgia special Senate election will be decided on November 3. Absent the unlikely occurrence that one of the six candidates wins a majority, it will necessitate a runoff election. The outcome of that runoff will determine the final Senate margin and will occur in the aftermath of the general election, which will make the politics of that vote an event unto itself.

© 2020 McDermott Will & Emery
For more articles on the election, visit the National Law Review Election Law / Legislative News section.