How the North Carolina Labor Commissioner impacts the business climate

January 14th, 2023

Thank you for spending some of your Saturday morning with us.
 
For many years, North Carolina has benefited from a Commissioner of Labor that appreciates the challenges business owners face. That doesn’t mean the Commissioner has ignored labor concerns like workplace safety – it just means the Commissioner has taken a balanced, real-world view that there are usually many considerations to weigh when making regulatory decisions.
 
But the surprise announcement that current Labor Commissioner Josh Dobson will not seek reelection at the end of his term means that long run of a fair and even-keeled regulatory environment may soon come to an end.
 
It may be true that business-minded North Carolinians have become so used to a reasonable Labor Commissioner that they haven’t really considered the consequences of a change.
 
Today’s piece is about those consequences.
 
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The Labor Commissioner is one of the ten elected members of the North Carolina Council of State. Voters will determine the next commissioner in 2024. Contested North Carolina statewide races are often decided by less than one percentage point. It’s instructive to imagine how different the business climate would be in North Carolina if, say, the 2020 Democratic nominee Jessica Holmes had been Commissioner of Labor during the pandemic.
 
Former Wake County Commissioner Jessica Holmes is a labor lawyer with connections to the North Carolina Association of Educators and Southern Coalition for Social Justice. The AFL-CIO proudly endorsed her.
 
During the pandemic, the Labor Commissioner made critical decisions on workplace regulations. For example, the commissioner came under intense pressure to institute regulations that would have likely resulted in meatpacking plants closing for extended periods of time.
 
Here’s what the National Employment Law Project (NELP) wrote in a 2020 press release supporting Holmes: “Last week North Carolina’s Labor Commissioner helped kill a proposed executive order to protect meatpacking and farmworkers…The action comes as a coalition of worker and racial justice groups launches a public education campaign highlighting the Labor Commissioner’s failures – and calling for the election of Jessica Homes.”
 
It’s not hard to fathom a Commissioner Holmes heeding the demands of her activist allies by imposing draconian workplace “protection” rules that would all but cripple a critical industry. Indeed, it’d be foolish to think she would have done anything but that.
 
And the meatpacking issue is but one example. Imagine the liability risk if COVID were considered a workplace hazard even though employers, especially small ones, have very few tools available to mitigate it.
 
Or imagine the disruption and chaos had a Commissioner Holmes immediately enforced President Joe Biden’s workplace vaccine mandate. By contrast, Commissioner Dobson wisely stalled on enforcing the mandate, and the U.S. Supreme Court eventually struck it down.
 
The high-profile decision-making surrounding the COVID-19 pandemic highlights the vital role the Labor Commissioner plays in protecting our thriving business climate.
 
But in 2024 and beyond, executive branch administrators will almost certainly not have the benefit of an emergency declaration through which to advance their more aggressive policy desires. That means the legislature can serve as a check to block activist anti-business regulatory pushes, right?
 
Not so fast.
 
As recent history has proved, activists, when stymied by the legislature, need only a sympathetic agency head to help them achieve their goals through the judiciary. The scheme is called “sue and settle”: well-funded “nonprofit” litigants file a lawsuit against an agency head alleging some constitutional violation. The sympathetic agency head “negotiates” with the litigants to reach a “settlement” that involves new regulations regardless of what state law says. A judge, seeing that both sides have “settled,” signs off on the agreement and, voila, there’s a new law of the land.
 
This exact scheme played out in 2020 between Democratic Party super-lawyer Marc Elias and Executive Director of the State Board of Elections Karen Brinson Bell. In a bipartisan supermajority vote, the legislature established the rules of the 2020 election in the context of the pandemic. Elias sued Brinson Bell, alleging the laws as written were improper. The two “sides” settled the suit by writing new laws, and a judge signed the settlement.
 
The limits of this scheme are bound only by the limits of one’s imagination. Does NELP believe there should be a law against farm laborers working when it’s more than 90 degrees outside? File suit against the Labor Commissioner alleging all workers have a constitutional right to comfortable working conditions. The terms of the settlement could stipulate a new regulation requiring 15-minute breaks every half hour when it’s 90 degrees outside – and that becomes the de facto law. It would take years to unwind that settlement in court.
 
The Labor Commissioner race rarely attracts the same level of attention as a senate or gubernatorial race. However, the Labor Commissioner impacts every North Carolina business. Every business beyond a sole proprietor must be concerned about the enforcement of employment laws. Every business must manage workplace hazards to ensure employees are safe at work.
 
North Carolinians need a Labor Commissioner who will prioritize worker safety through methods that work like employer education, fairly mediate wage disputes so both sides have a fair say, and resist attempts at sue-and-settle lawmaking. We can only hope whoever wins in November 2024 is up to the task to protect North Carolina’s business climate that helps everyone thrive.