Health care and employee benefitsexperts are weighing in on how the results of the midterm elections— with the Democrats taking control of the House and theRepublicans retaining the Senate — will impact workplacelegislation and regulations.

Emily M. Dickens – Corporate secretary andchief of staff at the Society for Human Resource Management

It's time for HR to get to work educating legislators. Withdivided power at the federal level, the states will become moreactive on issues that impact work, the worker and the workplace.And the influx of female perspectives will bring to the forefrontlegislative agendas that address equity issues, sick and familyleave, the minimum wage, pay equity and workplace culture.

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When it comes to workflex and paid leave, momentum for paidleave continues to grow, signaling there may be room for middleground.

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SHRM will continue to advocate for the Workflex in the21st Century Act, which would offer both paid leave andworkflex options and benefit both employees and employers.

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On workplace immigration, immigration reform requiresbipartisanship. With a split Congress, HR must highlight the needfor having access to skilled workers, protecting U.S. workers,closing the skills gap and providing employers with the necessarytools to hire a legal workforce.

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SHRM will advocate for access to global talent, an efficient andpredictable immigration system, and a fully electronic andintegrated I-9 and E-Verify system.

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With workforce development, look for Democrats to put emphasison pro-union proposals, which will be met with opposition fromSenate Republicans and President Trump.

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This provides an opportunity for HR to educate decision-makerson policies that strengthen employer-provided educationalassistance (Section 127 of the tax code), apprenticeship programsand other initiatives that help employers invest in workforcedevelopment and training.

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Regarding workplace equity, legislation in the House will likelyfocus on gender equity, including pay equity and prohibiting theuse of salary history in hiring. With momentum of the #MeToomovement, there likely be democratic proposals to limit the use ofarbitration and non-disclosure agreements.

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James A. Paretti, Jr. & Michael J.Lotito – Attorneys at Littler Mendelson P.C.

Representative Bobby Scott (D-VA), who is widely anticipated tobe the Chair of the House Education and Labor Committee, isexpected to pursue an aggressive oversight and legislative agendaon the labor front.

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In addition to greater levels of oversight, we believe it islikely that House Democrats will make labor and employment issues akey focus of their domestic agenda, and initiate legislativeproposals on a number of hot-button labor and employmentissues.

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House Democrats are likely to pursue an aggressive legislativeagenda through hearings and committee consideration, with a numberof bills potentially making it to the House floor forconsideration.

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Ban compulsory arbitration: Long a focus of employee advocates —and given new weight by way of the #MeToo movement — we expect tosee efforts to limit if not ban completely compulsory arbitrationof sexual harassment cases and workplace disputes moregenerally.

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Increase entitlement to overtime: Another likely initiative fromHouse Democrats will be to codify Obama-era white collar overtimerules (struck down by a federal court), which would have raised theminimum salary threshold for overtime eligibility to $47,476 (morethan double current law), and provided indexed updates of theminimum wage every three years.

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Promote workplace unionization: Foremost, the so-called'Workplace Democracy Act' would make it easier for workers to formunions by way of "card check" procedures, contrasting with thecurrent secret-ballot process and potentially subjecting workers tounion pressure and intimidation. The bill would also expand thedefinition of joint employment for collective bargaining purposes,require mandatory arbitration to obtain a first contract, andgenerally tilt NLRB union election rules in workers' favor.

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Expand liability of joint employers: If card check proves toofar a reach for some moderate congressional Democrats, we can bereasonably certain that legislation will be reintroduced to codifythe Obama-era NLRB definition of 'joint employer,' which wouldimpose liability and bargaining obligations on a broad range ofemployers that have little or no control over the workingconditions of independent contractors or franchisee employees.

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Raise the minimum wage: In the midst of a national campaign byorganized labor to raise the federal minimum wage to $15/hour,House Democrats are likely to make legislation increasing theminimum wage and indexing it in the future a front-and-center pieceof their legislative agenda.

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Require mandatory sick and paid leave: Supporters of increasedleave mandates can be expected to highlight legislative proposalsrequiring employers to provide paid sick leave, and paid family andmedical leave, through a government-run (and potentiallyemployer-financed) system.

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Given that Republicans will continue to control the Senate, thechance of any of these bills making it to the president's desk(where they would almost surely face a veto) seems slight.

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That said, we fully expect that House Democrats will use these"message" bills to frame issues for the 2020 elections, andhighlight key policy priorities."

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What about the Senate? In the face of two more years ofgridlock, there is a chance that Senate Republicans, HouseDemocrats and the White House may compromise and come together onmeasures enjoying broad bipartisan support, such as infrastructureimprovement, although the two sides differ widely on how best topay for these investments.

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Lacking such cooperation, Senate Majority Leader Mitch McConnell(R-KY) will likely focus the Senate on doing what it has done bestin the last two years: confirming presidentialnominations, most notably, federal judges.

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At the same time, two years into the Trump administration,hundreds of key political appointee slots remain unfilled orpending Senate confirmation, slowing the progress of theadministration's regulatory agenda.

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If no 'grand bargain' is struck in the lame duck session ofCongress (by which a number of Republican and Democratic nomineeswould be agreed upon to be "packaged" and confirmed in shortorder), the next Senate session will be pressed to turn to fillinga number of still-vacant positions, including the AssistantSecretary for Occupational Safety and Health, the Department ofLabor's Wage and Hour Administrator, and open seats on the EqualEmployment Opportunity Commission, National Labor Relations Board,and other agencies.

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Scott Behrens – Director, government relationsat Lockton Benefit Group

Sam Henson – Director, legislative andregulatory affairs at Lockton RetirementServices, on Lockton's blog

The American people have ushered in a new political dynamic byhanding Democrats control of the House and reinforcing Republicancontrol of the Senate. The consequences of the 2018 midtermelections will be wide ranging and will certainly impact the futureof health care and retirement plan policy.

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Health care policy remains contentious: Health care policy hasconsistently been reported one of the most important, if not themost important, issues in the midterm elections. There are somesharp partisan divides that we expect to continue to be fleshed outover the next two years and beyond. A divided Congress likely makessignificant policy changes unlikely, though not impossible, overthe next two years.

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Nevertheless, Republicans are expected to continue efforts tochip away at the Affordable Care Act. A divided Congress will makethat challenging and will put a microscope on executiveactions.

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To date, President Donald Trump has bet on policies that provideinsureds, states and payers of healthcare flexibility to helpstabilize and reduce health care costs (e.g., expansion ofassociation health plans, short-term limited duration insurance,and health reimbursement arrangements).

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Notably, this flexibility has given states more power, and we'llsoon know how that transfer of authority is worked out once moststate legislative sessions begin in early 2019.

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For their part, Democrats will likely continue to push tostrengthen the ACA. Policies to fund certain ACA subsidies andreinsure risks taken by insurers in the individual market remainpriorities.

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The big question is how strongly Democrats will push some formof single-payer system. Multiple iterations of expanded governmentinvolvement in healthcare have already been proposed, ranging froma true single-payer system to a Medicare-buy-in option for olderAmericans not yet eligible for the program under current law.

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The divided government will make actual policy difficult, butthe debate bears watching, because it will likely shape Democraticaction next time they gain power in both chambers.

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Where we may see some bipartisan support is in pricetransparency and cost containment policies. This may includeexpanded restrictions on balance billing, increased access totelehealth and limited expansion of health savings accounts.

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Retirement policy is more bipartisan, but does it have enoughmomentum? While Congress is divided on healthcare policy,surprisingly both Republicans and Democrats generally agree when itcomes to retirement policy.

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There is strong bipartisan support for retirement legislation inboth the House and Senate with a good chance to pass in the lastmonths of the current Congress. If there is a hurdle, it will bethe GOP itself, which has seen leadership in the Senate clash withleadership in the House on who should drive legislation.

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Keep an eye on the Senate's Retirement Enhancement and SavingsAct and the House's Family Savings Act. Both bills share severalcommon proposals, including open multiple-employer plans,simplified disclosures, annuity safe harbors and tax incentives forplans that encourage savings.

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But there also are provisions unique to both bills, the mostsignificant being that the FSA calls for the creation of UniversalSavings Accounts, which would have a $2,500 contribution limit andwould have tax treatment similar to Roths.

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With time ticking, the GOP will need to come together andsupport one of the two bills to get some retirement legislationthrough before the next Congress.

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Even if that doesn't happen, not all is lost. With the Democratsnow in control of the House, Rep. Richard Neal, Democrat fromMassachusetts, is likely to be chairman of House Ways and MeansCommittee, and he considers retirement to be one of his biggestpriorities.

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Thus, it appears that retirement policy is a real opportunityfor the parties to produce some meaningful legislation early in thenext Congress.

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Fisher &Phillips LLP attorneysBenjamin Ebbink and RichardMeneghello in JD Supra  — The top 10 thingsto expect in labor and employment law 

Worker-friendly bills expected to pass the House…then stall inthe Senate: Eager to repay the support they received that vaultedthem into power, employers can expect to see a slew ofworker-friendly measures introduced and passed in the House.

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It would not be surprising to see newly installed members ofCongress swiftly pass a series of bills aimed directly atemployers.

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Among them, you might see a repeal of the EpicSystems case that cleared the use of class waivers, afull-scale prohibition on mandatory arbitration agreements,measures to limit right-to-work laws, a passage of card-checkprovisions to streamline union organizing, a return of theexpansive persuader rule, the expansion ofthe worker-friendly ABC test for determining independentcontractor status, and a boosting of the federal minimum wagetowards $15 per hour.

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However, most of these actions would be largely symbolic andwould amount to nothing in the end. The Republican Party continuesto control the Senate, and in fact expanded their slim margin ofpower in yesterday's election.

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There is almost no scenario imaginable where any of thesemeasures would clear the Senate hurdle, although a more moderateincrease to the federal minimum wage might not be out of thequestion.

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House members could throw their weight around: Manycongressional candidates ran on a platform to provide a check onthe Republican leadership in the White House and Congress, and theywill look to fulfill their campaign pledges once in office.

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By using their power to seek additional information, holdhearings, and levy more control over executive activity, the newHouse could provide sufficient oversight over several federalagencies — namely the U.S. Department of Labor and the NationalLabor Relations Board — to slow down their agenda.

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Expect to see the USDOL's effort to provide a morebalanced overtime rule and the NLRB's move toreturn the joint employment rule to a moremeasured level both caught up in the political turmoil that willdescend on the nation's capital.

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New House leadership could turn attention to labor andemployment matters: Chatter among those in the know would seem toindicate that Congressman Bobby Scott (D-Virginia) will be the newChair of the Committee on Education and the Workforce. He currentlyserves as the minority Ranking Member, and many believe his tenureon the committee will lead his fellow Democrats on the committee toinstall him into the top position once the new Congress is sworn inthis coming January.

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He is widely regarded as a progressive member of the House andwould probably bring his philosophy to matters of federal labor andemployment law.

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Paid sick leave might be top House priority: Of all of themeasures expected to be pushed by the new House, it seems fairlylikely that paid sick leave will be on the top of the agenda whenit comes to realistic goals.

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After all, many Republican members of Congress have indicatedsupport for such a law, and even President Trump has provided wordsof support for some form of paid sick leave. The devil is in thedetails, however, and it remains to be seen what form of paid sickleave would be agreed upon by the Senate and the president.

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Some Republicans have floated the concept of a voluntary paidsick leave program, or one that is borne by employees themselvesthrough a reduction in Social Security or other benefits, which hasnot been well received by Democratic leadership.

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Employers should monitor this development to see if House andSenate members can work out a bipartisan solution that would beamenable to all and to President Trump.

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Immigration will also be a priority for new House: Perhaps themost hot-button issue of the day, immigration will continue to be amatter of significant attention and interest when the new Congressis sworn in this January.

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Now that Democrats are about to control the House, they willalmost certainly seek to curb some of the more controversialpositions taken by the White House. You can expect to see greateroversight attempted over the administration's aggressiveimmigration agenda, but it is an open question as to whether theywill be able to have a significant impact.

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House could get bogged down by anti-Trump activity: Anotherpossibility that could emerge in the coming months is that ofcomplete gridlock and contentious wrangling between the House, theSenate, and the White House as new House members get swept up inanti-Trump sentiment.

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Some candidates campaigned on a platform that led them topromise impeachment proceedings, subpoena requests, oversighthearings, and any other mechanism available to them to throw amonkey wrench into the Trump administration's activity.

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Such actions could eat up valuable time and resources anddistract the new House leadership from accomplishing theirlegislative and policy goals, including labor and employmentinitiatives.

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Senate could streamline consent and approval activity: While theHouse has been flipped, the Senate remains red, and this could freeup senators to move forward to approve appointments that have beenheld up in political limbo while the fate of the midterm electionsremained uncertain.

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Expect to see action at the USDOL and the Equal EmploymentOpportunity Commission in short order to add key leadershippersonnel.

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Expect stability at the Labor Department: Although news reportsin the last several months have hinted at major shakeups at severalfederal agencies soon after the midterms were concluded — includingat the Departments of Justice, Homeland Security, Defense andInterior, to name a few — there has been nary a word about the fateof USDOL Secretary Alexander Acosta.

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By all accounts, President Trump has been pleased with Acosta'sno-drama personality and the relatively smooth operations at theLabor Department, so most expect Acosta to survive what could be amass exodus.

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Another attack on the ACA awaits its final fate: While theRepublican-controlled Congress could not kill the Affordable CareAct in 2017 or 2018, its fate could still hang in the balance inthe coming months and years.

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A legal challenge filed by current House members seeking tostrike down the entire law has been pending in a Texas federalcourt for several months. Many expect that the judge on the casehas been waiting until the midterm elections were concluded beforeissuing his ruling so as to not introduce a political element intothe proceedings. But now that the elections are behind us, adecision may soon be forthcoming.

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If the law is struck down, you can expect an immediate appeal tothe 5th Circuit Court of Appeals — and a probable stay in theproceedings delaying any sort of immediate revocation of the law —and then yet another round at the U.S. Supreme Court.

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Future elections may never look the same: Finally, employers andothers may see an entirely new kind of election season in 2019 andbeyond given a recent monumental ruling from the SupremeCourt. The recent decision in Janus v.AFSCME struck down the ability of public sectorentities to automatically collect fees from non-union members.

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Now that non-union employees are no longer obligated to financeunion efforts to support anti-employer legislation and progressivecandidates, you can expect to see a potentially devastating impacton the finances of public sector unions—and the worker-friendlycauses they generally support at all levels of government acrossthe nation.

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This could lead to a new kind of election season where unionsplay a less pivotal role in the outcomes of local and federalelections.

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Stay tuned to next year's elections and the blockbuster 2020elections that are just a short 24 months away to see what kind ofimpact Janus has on the nationallandscape.

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A divided Congress that is unable to pass significant employmentlegislation — whether it be pro-employer or pro-worker — means thatwe are likely to continue to see the drive for legislative changespursued at the state, or even local, government level.

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You will likely continue to see a hodgepodge of local laborpolicies that vary from jurisdiction to jurisdiction, which canpose compliance challenges if you operate across large areas ormultiple regions.

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Katie Kuehner-Hebert

Katie Kuehner-Hebert is a freelance writer based in Running Springs, Calif. She has more than three decades of journalism experience, with particular expertise in employee benefits and other human resource topics.