Election Results and Supreme Court Vacancy Raise Questions for the Workplace


Justice Antonin Scalia's passing earlier this year and the recent presidential election are two events that have had a wide impact on the wage and hour arena in recent months, according to Christopher Parlo, an attorney with Morgan Lewis in New York City.

Employers are contending with attacks on unpaid internships, independent contractor status and franchisee arrangements, Parlo noted at a National Employment Law Institute conference on Nov. 17.

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They are now also dealing with the Nov. 22 block of the new federal overtime rule.

Scalia's death and the presidential election results have raised many questions about whether rulings, regulations and other developments that have been put into place over the last few years will survive, he noted. "Either way the election came out, it was going to have a huge impact on wage and hour law."

Supreme Court

"Justice Scalia was the author of a ton of decisions that affect the wage and hour space," Parlo said.

Scalia authored several opinions favoring the use of mandatory arbitration agreements between businesses and consumers, which have affected workplace agreements.

He also authored a number of decisions that cut back on workers' ability to bring class actions, but the high court may address diverging circuit court opinions this term about whether class action waivers violated employees' right to concerted activity under the National Labor Relations Act.

[SHRM members-only HR Q&A: What are the California rules regarding mandatory arbitration agreements, and how do they differ from federal law?]

Cases that deal with these issues continue to be petitioned to the Supreme Court and it is uncertain how the court will rule in Scalia's absence.

The vacancy on the court could be filled by a conservative justice, but there could be a real shift in the ability to kill class and collective actions through arbitration devices, Parlo noted.

Election Results

Surpassing the impact of Scalia's death is the election, Parlo said.

"What's going to happen to the executive orders, administrative interpretations, rules, regulations and laws that were put in place to help lift up the middle class and low-income workers?" he asked. It remains to be seen what President-elect Donald Trump will do with regard to these developments.

It's also uncertain what will happen to the federal minimum wage, Parlo added. "While the federal government has been paralyzed for a decade to do anything about the minimum wage, states—including in the last election—have been passing higher and higher minimum wages."

The minimum wage issue could remain stagnant at the federal level and become more of a state law issue, or both sides of the aisle could get together and try to do something for the middle class and raise minimum wages, he said.

It's a time of enormous change for labor and employment professionals, he added.


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