No matter your political inclination, one thing in certain, Tuesday’s midterm election results signal a potential change in the focus of legislative initiatives that will impact the labor and employment community. In the few days following the election, I have received countless invites for webinars and programs intended to dissect and predict the impact the elections will have on several pending legislative items. Since we all like prognosticators, here is my take (as in, not the opinion of Fox Rothschild) on the impact the election will have on three legislative items.


The Employee Misclassification Prevention Act would amend the Fair Labor Standards Act (pdf) to require covered entities to keep records of non-employees who are paid to perform services and also provides special penalties for persons who misclassify employees as non-employees or the more familiar “independent contractor.” My take, more penalties to employers is not going to be a focal point for the new regime, this bill dies.


In an attempt to preempt the Employee Free Choice Act, advocates of secret ballot voting successfully passed what is being heralded as “employer-friendly” measures in South Carolina, South Dakota Arizona, and Utah. In general, these measures guaranteed the right of individuals to vote by secret ballot when deciding whether to be represented by a union. My guess, this bill does not see the light of day.


The Paycheck Fairness Act would fortify the Equal Pay Act by among other things, clarifying and limiting the application of the employer’s affirmative defense to disparities in pay between men and women doing the same job. The Paycheck Fairness Act would also prohibit retaliation against an employee who inquires as to the employer’s salary practices or discloses their salary. The Act also strengthens penalties against violators and permits women to challenge an employer’s practices as an opt-out class action under the Equal Pay Act. The jury is out on the support this bill will garner in the coming months, but in the end I believe a revised version of this bill will pass.


Rest assured, we will monitor the legislative developments and update our fantastic and devoted readers. Have a great weekend.