The Presidential election is the most important for employers from the perspective of labor and employment law. The party controlling the White House also will determine the agendas of the EEOC, the NLRB, and the Department of Labor. The significance of the recent actions of the EEOC and the NLRB is not lost on employers with respect to what the future will be bring in a second Obama administration. Employers in Michigan are, or at least should be, watching the races for the election of three justices to the Michigan Supreme Court. In Michigan, the "non partisan" Supreme Court races have three seats which are contested. Two positions are for full eight year terms, and the third is for the completion of a term ending in 2015. Currently, the court has four Republican justices and three Democratic justices. Two incumbent Republican justices are running for reelection. A swing of two seats for the Democrats will give them a majority. The last time the Democrats had a majority on the court was in the late summer and early fall of 2010, where then Governor Granholm appointed a Democratic judge to replace a "nominal" Republican justice. What followed was a series of reversals of prior Supreme Court cases based on the Democratic majority's analysis which found a basis to avoid stare decisis,and some of the most contentious language ever seen in the court's opinions. Awaiting the court after the election will be the high profile employment case involving the constitutionality of the law that required a 3% wage deduction from school employees for retirement health care. In addition, a Democratic controlled court would likely review prior decisions concerning when a cause of action accrues in employment/discrimination cases and whether the continuing violation theory in these cases is viable. Currently, the Court's decisions in those areas favor employers.For Michigan employers, the prospect of increased litigation with current and former employees over employment issues is not a welcomed development. The time and expense that would be required would be a distraction from the slow economic recovery in Michigan. Employers who think the Michigan Supreme Court races are not important should think again.
For additional Labor and Employment law insights from John Holmquist, visit the Michigan Employment Law Connection.
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