The Midterms Are Over. What’s Next for Labor and Employment Policy?

With the midterm elections behind us, employers and policymakers are looking ahead. Democrats now control both houses of Congress and many new statehouses across the country. In Washington DC, they will use their new power to scrutinize federal agencies and set their future legislative agenda. In the states, they will likely enact a bevy of new labor and employment laws. And in both places, employers should prepare for change. The next two years will be a busy period for labor and employment law.

What to Expect from Congress

As expected, the electorate swung toward the Democrats. What was perhaps unexpected was the margin. As of November 6, Democrats had captured 253 House seats, with votes still being tallied in about 30 districts. In the Senate, Democrats won seven new seats, giving them at least 54 seats total. Two elections, Alaska and Mississippi, remain too close to call. But regardless of what happens in those states, Democrats will enjoy substantial majorities in both chambers of Congress.

Democrats are expected to use those majorities vigorously, starting with oversight. Congressional committees can subpoena records, call witnesses, and scrutinize agency activities. Leading congressional Democrats, including Bobby Scott (D-Va.), have already told labor and employment agencies to expect scrutiny. In a letter sent shortly after the election, Scott reminded agency leaders that they have a legal duty to preserve records. The letter went to the heads of the Equal Employment Opportunity Commission (EEOC), U.S. Department of Labor (DOL), and the National Labor Relations Board (NLRB), among others. The letter shows that these agencies can expect early and heavy attention from Scott and other congressional Democrats.

Democrats will also be active legislatively. They are expected to introduce or reintroduce bills on longstanding priorities, including minimum wages, noncompete agreements, and pro-union reforms. Many of these bills still stand little chance of becoming law: Democrats still don’t have the 60 votes needed to overcome the filibuster in the Senate, much less the 67 needed to overcome a presidential veto. So these bills will serve mostly as a message to the electorate. They will tell voters what Democrats will try to do if they recapture the White House in 2028.

A few bills, however, could get serious consideration before then. One much-discussed candidate is the Faster Labor Contracts Act (FLCA), which would amend the National Labor Relations Act (NLRA) to require interest arbitration for first contracts. Though the bill has faced stiff opposition from the business community, it passed the House this year with 20 Republican votes. And though it never got a hearing in the Senate, much less a full vote, it could stand a better chance in the new Congress. The Senate Health, Education, Labor, and Pensions (HELP) Committee will get a new chair—likely Senator Bernie Sanders (I-Vt.). Sen. Sanders has been a vocal supporter of pro-union legislation, and he is likely to view the FLCA more favorably than outgoing leadership. So the bill could at least get a hearing in committee.

Another focus will be agency budgets. Many agencies are operating with reduced staffing. By one count, the DOL has as many as 14.4% fewer employees than when President Trump took office. The new Congress will likely look to restore or even expand agency headcount. Doing so will require compromise with the president, and it could lead to a new round of budget fights. But Democrats may find unlikely allies within the agencies themselves, some of which have publicly pleaded for more resources.

What to Expect from the Agencies

As for the agencies, they will likely continue on the same path. The DOL has multiple major rules pending, including rules on independent-contractor status and joint employment. Those rules could be finalized any day. The agency is also expected to take up overtime salary thresholds at some point this year. None of that is likely to be affected by the midterms.

The EEOC will likewise stay the course. Since taking office, EEOC Chair Andrea Lucas has focused policy and enforcement on a number of priorities, among them religious discrimination, anti-American discrimination, and diversity, equity, and inclusion (DEI) initiatives that the administration considers “unlawful.” Those will likely remain her priorities for the next two years. She may face increased scrutiny on Capitol Hill, as some of the agency’s enforcement actions have proven controversial. But nothing in Lucas’s track record suggests that she will be dissuaded by the attention. And until Democrats retake the White House, there is little they can do to change the agency’s priorities directly.

Much the same is true for the NLRB. Though it lacked a quorum for much of 2025, the NLRB now has four of its five seats filled. That complement gives it not only a quorum, but enough Republican members to overturn decisions issued during the Biden administration. (By tradition, the NLRB needs affirmative votes from three members to overturn a decision.) The agency has a long list of potential targets, including decisions on card-check certification and so-called captive audience meetings. And it has a short runway to do it: in December 2027, Chair James Murphy’s term will expire, leaving the NLRB with only two Republicans and one Democrat. But until then, the members are expected to be busy. 

What to Expect from the States

Even busier will be state and local Democrats. The midterms saw a similar Democratic wave in the states, as Democrats captured at least five new gubernatorial seats, ten new legislative chambers, and six new “trifectas”—i.e., states where they control both chambers of the legislature and the governor’s mansion. More than three-quarters of Americans now live in a state with a Democratic governor, and more than half live under a Democratic trifecta.

If history is any guide, Democrats will use their new majorities to pass a lot of laws, including labor and employment laws. In 2023, Minnesota Democrats used a new trifecta to pass a wave of labor and employment bills, including paid sick leave, noncompete reforms, and pay-transparency rules. A similar surge of bills followed the Democrats’ capture of Virginia in 2025. This year, states like Pennsylvania and Arizona could follow suit. Bills to watch for include higher minimum wages, bans on training-repayment agreements, and pro-union legislation such as captive-audience bans and “tripartite” regulatory boards. 

Looking Forward to 2028

All of this activity will lay groundwork for the presidential race in 2028. Following last Tuesday’s results, Democrats will likely go into 2028 with the wind in their sails. They will use their positions over the next two years to make their case for full control of the federal government. Bills in Congress will set the federal agenda, and activity in the states will show what full control means in practice.

The federal landscape will depend on two major variables: the candidates and the filibuster. Despite the midterm wave, the country remains closely divided. The presidential election will likely be decided by only a few percentage points nationwide. Completing the Democrats’ legislative agenda, including their labor and employment agenda, depends on recapturing the White House. So the name on the ballot could dictate whether these policies reach the statute books. 

Similarly, the agenda could rise and fall on the filibuster. Today, most legislation can get a full vote only if 60 senators vote for “cloture”—i.e., to end debate. Lawmakers have periodically considered eliminating that requirement and allowing legislation to move forward with a simple majority. If Democrats were to eliminate the filibuster, compromise would be less necessary, and more controversial bills could become more likely to pass. A prime example is the Protect the Right to Organize (PRO) Act, an omnibus pro-union bill that Democrats have introduced multiple times. The PRO Act has never garnered enough support to clear the filibuster. But if the filibuster were to go away, it could have a real chance. 

For employers, the takeaway is to prepare for change. The public voted for change, and Democrats will give it to them. The next two years will see both shifts in state policy and a roadmap for change in Washington. Employers should stay watchful, flexible and engaged.