Jottings By An Employer's Lawyer

Saturday, November 06, 2004

The Change That Didn't Happen - What A Kerry Administration Would Have Meant

Although not much talked about, the management side of the docket may have dodged a substantial bullet with Tuesday's election. While John Kerry's interests and expertise have been focused on foreign policy issues, his endorsement from the AFL-CIO noted his "91% AFL-CIO lifetime voting record on important working family issues." A change from Bush to Kerry would have probably been the most dramatic switch in labor/employment views in the White House since the Carter to Reagan transition almost 25 years ago.

Some of the specifics that will now not come to pass are the Kerry promise to appoint a Secretary of Labor "from the house of labor." Current Secretary of Labor Elaine Chao, wife of Republican Senator Mitch McConnell has expressed interest in moving to the Secretary of Transportation position. No word on who her successor might be if that were to happen.

The Democratic platform's promise -- "we will of course reverse this Administration's cuts in wages for working people by restoring overtime protections for hard-working Americans" -- were code words for repeal of the new Part 541 White Collar Exemption Regulations. Given that the changes have resulted in very few individuals losing their overtime protection, that probably would not have come to pass in any event and certainly is not likely now. While there could still be legislative action, given the outcome of the election and the reality of the issue, I don't see it as a likely change.

Labor reform type issues, many of which have been dreamed about since a serious effort was (ironically) defeated by a Senate filibuster in the Carter administration, will go back to the dream stage - a ban on permanent striker replacement, greater flexibility for the use of card checks, greatly increased penalties for violations of the NLRA, and of course the Bush Board will continue in place, although some nominations will have to make their way through the Senate.

To the extent John Edwards had been able to exert any influence on the domestic agenda, one could have expected his view to have been very much supportive of pro-employee litigation issues, even though his trial lawyer background was in the personal injury as opposed as to employment law arena. As major contributors, trial lawyers would certainly have been looking for some reward.

And of course 4 more years of court appointments, including, but by no means limited to the Supreme Court, will continue to influence the development of federal labor and employment law.

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