Authors: Michael J. Lotito, Jim Paretti, Maury Baskin, David Goldstein, Brad Hammock, S. Libby Henninger, Jorge Lopez, Kevin Burke, Brenda Canale, Tessa Gelbman, Shireen Karcutskie, and Elizabeth Whiting
Published: November 2020
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Although the 2020 presidential election is technically behind us, razor-thin and contested elections for the presidency and Congress remain, potentially drawing out the uncertainty through the new year. As of the date of publication, Joe Biden appears to have narrowly won the presidency, but President Trump has challenged the results in several swing states, and is prepared to take the matter to the Supreme Court. The composition of the Senate—and which party controls the upper chamber—may not be known for some time. At least two contests remain in play, as both races in Georgia might be headed for run-off elections in early January. The only outcome that is clear is that Democrats have maintained control of the House of Representatives after losing some seats.
There are two key points to consider as we assess how the election results will affect the workplace. First, although all current indices point to a Joe Biden win, should President Trump ultimately prevail, we will issue a separate report explaining what to expect during his second term. It will come as no surprise that the candidates’ labor and employment priorities differ appreciably.
Second, assuming Joe Biden garners sufficient electoral votes to claim the presidency, whether Democrats gain control of the Senate will be the determinative factor in predicting what next year will bring for labor and employment.
If Democrats achieve a political trifecta—i.e., control both chambers and the White House—President-elect Biden would have more tools at his disposal to pursue his ambitious workplace agenda. If Democrats do not gain at least 50 Senate seats, a Republican-majority Senate would serve as a check on his ability to enact laws and make judicial and Cabinet appointments. This may mean President-elect Biden would have to choose more moderate candidates to fill leadership roles in his administration. In addition, without full congressional backing, the Biden administration might have to resort to non-legislative means to pursue its agenda. In that event, employers could expect the new administration to turn to executive actions and federal agency regulations to achieve its goals.
Regardless of the Senate outcome, the challenge for the new administration will be how to accomplish a potentially broad workplace regulatory agenda while seeking to stimulate business efforts to recover from the pandemic-induced recession. While it is impossible to predict with any degree of certainty what any administration might do—particularly during these unsettled times—this Report aims to provide policy makers, employers, employees, trade associations, academics, and other interested stakeholders with some insight on what a new president and Congress will mean for the world of work.
For questions regarding this report etc., kindly contact Philip Berkowitz (PBerkowitz@littler.com).