With both Jon Ossoff and Raphael Warnock the likely winners of the U.S. Senate races in Georgia, a result that seemed unlikely just two months ago, Congress is suddenly back to being a major player in the next year or two.
Over the last several years, the amount of legislation coming out of Congress had slowed to a trickle; Majority Leader McConnell used his powers to block bills that might have otherwise passed.
It wasn’t that long ago that pieces of legislation like the ADA Amendments Act passed with overwhelming bi-partisan support. But that just hasn’t happened for many years now.
Instead, we’ve seen the Executive Branch issue new regulations and executive orders (including in the Obama administration) that have seemingly circumvented the legislative process (albeit within some judicially prescribed limits).
That all changes for the next two years with the U.S. Senate now in a 50/50 split (with Vice President-Elect Harris the tie-breaking vote).
I’ll leave it to the national media to break down the details, but for employers in Connecticut and New York, here are a few things to keep an eye out:
- The Congressional Review Act gives Congress the power to overturn regulations. Expect Congress to turn back several last-minute regulations issued by various agencies, including the Department of Labor and Department of Justice. Indeed, just last night, the New York Times reported that there was a push to eliminate some “disparate impact” discrimination cases. A rollback seems likely. Also likely to be rolled back? A new multi-factor test on indepedent contractors.
- A federal judgeship position in Connecticut has been vacant for over a year while a nomination has been pending; expect President-elect Biden to fill that roll and to have the Senate approve of that vacancy. Will Judge Jongbloed be renominated?
- It’s been curious that President-Elect Biden had not yet announced the appointments for the Departments of Labor and Justice; with the nominations now likely to pass the U.S. Senate, who gets appointed to those roles? It’s quite possible we’ll see a more aggressive policy role for these agencies as well.
- What items of legislation we will now see? Minimum wage increases? Changes to the independent contractor rules? It’s ALL on the table now.
- And it should be noted that Senators Murphy and Blumenthal are likely to be in key leadership positions in the U.S. Senate as well.
In short, it’s been many years since Congress has passed legislation of consequence for employers to be on top of (pandemic-related legislation notwithstanding). That all has the potential to change now that the U.S. Senate is flipping.