2022 Midterm Elections: Implications for Large Employers Beginning to Emerge

Although midterm election voting has ended, tallying up the final vote counts across the country will continue this week and possibly into next week. In addition, Democratic Georgia Sen. Raphael Warnock and Republican Herschel Walker will head to a runoff on December 6. In the meantime, the balance of power in Congress is in limbo, which could delay party leadership elections and committee chair decisions. 

As of publication, control of both chambers of Congress remains up for grabs, with several House and Senate races too close to call.

• House makeup (211 R; 192 D; 32 not yet called): Republicans could claim the majority with between two to 12 votes.
  
  
• Senate makeup (49 R; 48 D; 3 not yet called): Alaska has yet to be called but will remain in GOP hands. Democrats picked up a seat with John Fetterman's win in Pennsylvania, but this does not secure Democratic control of the Senate. Georgia and Nevada remain too close to call, while Democrat Sen. Mark Kelly is leading Republican Blake Masters in the Arizona race.
  
  
• GOP leadership elections: House Republicans are currently scheduled to  vote on November 15 for party leadership posts, which is just the first step in the process. Depending on the continued election vote counts in the coming days and pushback from conservative House Republicans the leadership election date could be delayed. Current GOP Leader Kevin McCarthy (R-CA) would need to win a majority of his conference’s support to be nominated for speaker before a January vote when he would need 218 votes of the full House to win the gavel. The House Democrats will vote on November 30 for party leadership posts, which could generate a shakeup as it is expected that Speaker Nancy Pelosi (D-CA) will announce her future political plans. Senate Republicans are slated to meet November 16 to pick their leadership team for the 118th Congress that meets in January, though most of the leadership will likely stay the same, including Sen. Minority Leader Mitch McConnell (R-KY) who is poised to easily win another term as the highest-ranking Republican. 

Expected impact: If Republicans clinch the majority in the House and Democrats maintain the majority in the Senate, anticipate limited legislative activity in the 118^th Congress and increased regulatory action by the Biden administration. House Republicans will use their majority to host oversight hearings, summoning agency heads to the Capitol to justify regulatory activities. 

• Republicans on the House Education and Labor and Senate HELP Committees have already indicated that the Employee Rights Act, a bill to protect independent contractors, franchisees, entrepreneurs, and anyone seeking flexible work options will be a priority in the 118^th Congress. In addition, while Republicans are traditionally aligned with the business community on labor and employment issues, anticipate some dissent as well. Republicans are already on record scrutinizing company ESG efforts with lawmakers claiming that the “ESG movement attempts to weaponize corporations to reshape society in ways that Americans would never endorse at the ballot box.”
  
  
• For Democrats, expect traditional proposals like the PRO Act and efforts to discourage/prohibit arbitration to be reintroduced in the 118^th Congress, though with a divided Congress those bills will not get any traction. If they can maintain control of the Senate, Democrats will also have the chance to move on filling key posts in the Biden administration. One such post would give the U.S. Equal Employment Opportunity Commission a Democratic majority, freeing the agency to pursue initiatives such as pay data collection. If Democrats can maintain majority in both chambers, a priority will be to codify the right to abortion enshrined in the 1973 Roe v. Wade decision. 

Lame duck session: Congress will reconvene next Monday, November 14 for a lame-duck session of Congress. Depending on the final vote counts, Democrats will likely use the legislative days left in the year to pass an omnibus government funding bill and wrap up legislative business, including the National Defense Authorization Act, which includes provisions to debar federal contractors for FLSA and NLRA violations in the House-passed version. The House-passed NDAA bill will need to be reconciled with the Senate version, which currently does not contain these labor provisions.

Biden administration: With a divided Congress the administration will use its agency power to pursue priority issues impacting the workplace. The White House Taskforce on Labor Organizing could release a second report later this year/early next year, the NLRB will begin to issue significant decisions with increasing regularity, and agencies like the Department of Labor, Equal Employment Opportunity Commission, Securities and Exchange Commission, and the Federal Trade Commission could pursue a flurry of regulations to achieve the administration’s goals ahead of the 2024 presidential election season. 

HR Policy Association will delve deeper into a post-election analysis in next week’s November 16 FWPC webinar featuring Congresswoman Virginia Foxx (R-NC), Senator Mike Braun (R-IN), and Democratic staff from the House Education and Labor Committee and Senate Health, Education, Labor and Pensions Committee.   

In addition, be sure to tune into the November 30 FWPC program where HR Policy Association staff will discuss the key issues in play during the lame duck session of Congress and what’s ahead in the 118^th Congress and implications for HR. Registration for these discussions are FREE for HR Policy members. Please feel free to forward to anyone within your organization who may benefit.