Legal Ease What Should Employers Expect? By Richard D. Alaniz, Alaniz Law & Associates


s of this writing, the presidential election is less than a month away and polls indicate that the two candidates are in a virtual tie. Whatever the final outcome, it bears repeating the often-heard claim that elections have consequences.


A


case where workplace regulations and enforcement are concerned.


That is certainly the It might


therefore be beneficial to review what employers could be facing depending upon which administration is in power. For the almost four years of


Democratic control, we have seen decidedly pro-employee, pro-union, and mostly anti-employer actions by the executive agencies that regulate the workplace. President


Biden the most


Early in his administration promised


pro-union administration in history and a program of aggressive workplace enforcement. There was in fact a slight increase in workplace enforcement activity, but it never quite reached the levels promised. As for union matters, the union-dominated National Labor Relations Board (NLRB) did its best to favor unions, but the much-desired Protecting the Right to Organize Act (PRO Act) failed in Congress.


What


could four more years of Democratic control mean for employers? There should be no doubt that a


Democratic victory would virtually guarantee that the aggressive approach to workplace


enforcement Federal that was


promised would become a reality. The necessary federal manpower to do so is certainly available.


employment has grown by 20% to 2.5 million employees during the past four years, including for example a doubling of Occupational and Safety Health Administration


(OSHA) workplace


inspectors. In addition, we would likely see increased efforts to adopt favored legislative measures such as the PRO


32 ❘ November 2024 ®


Act, which gives unions even greater leverage over employers who oppose unionization of their workers. Another Democratic priority would Be passage of paid family leave by Congress.


As currently proposed, it


would be much like the current Family and Medical Leave Act (FMLA) that provides up to 12 weeks of unpaid leave for an employee’s serious illness or that of an immediate family member.


The


law applies to employers with 50 or more employees, but there is pressure to reduce that to 25 employees or more. Several states have already adopted some form of paid family leave and it is being proposed in others. Given the Republicans’ support for some form of paid family leave, including that of former President Trump, passage of such legislation is quite possible. Currently the major obstacles are how the leave would be funded, as well as the length of the leave. It


is also widely agreed that the


current federal minimum wage of $7.25 per hour is grossly out of date. Almost all employers pay substantially higher wages either because of state law or the realities of hiring and keeping employees.


Democrats have favored


an increase in the minimum wage to as much as $15.00 per hour, while several Republicans have argued for an increase to $10.00 to $12.00 per hour. an increase be approved, it


This is the practical impact of


wage compression. Another Democratic administration


would also ensure continued union domination of the NLRB.


The current


General Counsel, the person who actually dictates enforcement activity, is a former union attorney and staunch pro-union advocate. She has


Should will put


pressure on employers to raise the rates of the employees already being paid more.


successfully pushed for a broad reading of the concept of “concerted protected activity” to include such social justice issues as “Black Lives Matter”, which is unrelated to any traditional labor matters.


It provides an expanded


basis for NLRB enforcement activity in workplaces where no union issues exist. A Republican administration for the next four years does not guarantee that employers will not be subjected to any significant enforcement activity. While leadership of the primary federal agency that regulates the workplace, the Department of Labor (DOL), will be pro- employer, today enforcement actions are controlled by career bureaucrats in field offices. Broad agency policy may be dictated by political appointees in Washington, but day-to-day enforcement is the domain of regional and district personnel. Unfortunately, in recent years the field staff has become increasingly anti-employer. Some even refer to them as part of the “deep state”. They, more often than not, rule against employers. Appealing the decisions they make is time-consuming, expensive and rarely successful.


As a consequence, most


employers settle claims made against them and try to minimize the impact on their workplaces. The types of issues that the DOL and its related sub-divisions address includes such things as wage and hour matters under the Fair Labor Standard Act (FLSA), workplace safety compliance through the Occupational Safety and Health


Administration


(OSHA), as well as compliance with federal contract employer obligations through the Office of Federal Contract Compliance Programs (OFCCP).The OSHA workplace safety compliance audits that were a focus for the current administration will likely continue even in a Republican administration. One federal agency that was quite


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