What Obama's Win Means for Labor and Employment Law

Author: David B. Weisenfeld, XpertHR Legal Editor

President Obama's historic re-election brings with it a host of HR implications. Chief among them is that the Affordable Care Act (ACA) will remain intact for the foreseeable future.

The Supreme Court upheld the bulk of the ACA in June, including the health care law's individual mandate provision. But a legislative challenge seemed certain had Governor Romney prevailed. The president's win, coupled with the Democrats' gains in the Senate, means that such a challenge is highly unlikely.

Government Agencies

Another result is that the National Labor Relations Board (NLRB) figures to remain active in a number of ways. Most notably, the NLRB will:

• Continue to regulate nonunion employers to protect employee rights;
• Make it easier for employees to unionize; and
• Take a broad view of protected, concerted activity on social media.

Along with the NLRB, the Equal Employment Opportunity Commission (EEOC) and the Occupational Safety and Health Administration (OSHA) also are likely to maintain active roles when it comes to employment law compliance and a willingness to push for enforcement.

Meanwhile, the president's victory should lead the Department of Labor to maintain its position that domestic caregivers are entitled to receive minimum wage and overtime pay under the Fair Labor Standards Act.

On the Congressional Front

The first law President Obama signed in 2009 was the Lilly Ledbetter Fair Pay Act, and his administration's interest in employment law continues. There could be a renewed push for the Paycheck Fairness Act in the next session of Congress in an effort to update and strengthen Equal Pay Act protections for women.

However, any sweeping new employment law is unlikely. The Democrats better-than-expected showing in the Senate on Election Night upped their majority to a 55-45 margin assuming the two Independents caucus with them, but the Republicans held the House. While the Paycheck Fairness Act in particular may be reintroduced, passage remains an uphill battle for the president barring a compromise measure.

Change is more likely in the immigration arena with a possible proposed overhaul that would provide a path to legal status for the estimated 11-million people living in the US illegally.

Supreme Court Status Quo

President Obama's victory means he will be the one to fill any vacancies that may occur on the Supreme Court during the next four years with Senate confirmation. What this means in all likelihood, however, is a preservation of the status quo for HR.

Justice Ruth Bader Ginsburg, a champion of employee rights, is viewed as the justice most likely to step aside. Obama would figure to seek a like-minded successor. Had the election gone the other way, a possible departure by Justice Ginsburg would have led to a significant shift in the Court's makeup that would have favored business interests.

The current Court tends to lean towards employers on hot-button issues, such as limiting class action employment suits in Wal-Mart v. Dukes, 131 S.Ct. 2541 (2011), but this has not always proved true as evidenced by the health care ruling. Neither of the two senior conservatives on the Court, Justices Antonin Scalia and Anthony Kennedy, have expressed any serious indications about retirement.

Additional Resources

Supreme Court Upholds Affordable Care Act - Business as Usual for Employer Group Health Plans