National Clothesline

In my perfect world, the U.S. Congress and the state legislatures get together each year to determine what laws to repeal. They sit down, talk to business people all over the country, and decide which employment laws are being abused by employees or just plain not working.

Unfortunately, Congress and the state legislatures can’t resist the impulse to enact more and more legislation in the paternalistic view that they have to look out for employees. Of course, when it comes to their own employees, they feel entirely different. After all, it is much easier to tell someone how to act than to show him. Congress, by the way, is exempt from most of the laws applicable to your business.

Perhaps all government officials should be required to run a business for a couple of years before being eligible to run for office. Many people, including this writer, have found that being “in charge” carries far more responsibility than they ever imagined. Again, it is easier to tell someone how to be a good manager than to actually be a good manager.

With that said, let me tell you what I believe the legislatures and Congress have in store in the coming year. First, we can expect more health care legislation for employees. The legislation will not come in the form of reduced cost for employers, but increased costs for employers for increased coverage. My own state, Maryland, enacted a piece of legislation this year over the Governor’s veto requiring the largest employer in the state – WalMart – to devote a percentage of its expenses to finance health care insurance for employees.

I also expect some activity in the area of employee privacy. Currently, with few exceptions, an employee sacrifices most of his personal privacy when he walks into the workplace. For example, employers can search the desks and lockers of employees, break into their computers, and engage in surveillance of the workplace. Employers also have the right to give references about employees without liability for defamation, provided the employer believes what he is saying about the employee is true.

Some state courts have already limited the employer’s ability to pry into employee activities, but we can expect the question to be examined by the legislatures as more and more employees are terminated for surfing the Internet at work, or engaging in unsavory activities outside the workplace.

Although this is not a legislative trend, I expect the number of wage and hour suits to increase dramatically in the next couple of years. Plaintiff’s employment attorneys have found wage and hour cases to be lucrative matters for them to pursue. As I have said in this column many times, it is virtually impossible for an employer not to have at least a few wage and hour practices that technically violate the law. Lawsuits will increase, and employee recoveries will increase.

I expect more employers in the coming years to agree to arbitration of employee claims in return for the employee giving up the right to sue in court. This is a trend that I think should be carefully examined. My experience is that arbitration results in more kooky outcomes than court cases. Further, the ability to overturn an arbitration ruling is far less than a poorly decided court case.

The tendency to allow employees to take more time off will also continue. The three laws that cause the most problem in this area are the Family and Medical Leave Act, the Americans with Disabilities Act, and State Workers Compensation laws. This is affectionately called the Bermuda Triangle by management-labor attorneys. More employees will demand time off, and more employees will be entitled to receive it.

Smoking, while on the decline, will continue to be an issue for employers. While smoking in the workplace is banned in many states, this ban has resulted in “smoke breaks” for employees during the workday. Referring back to our wage and hour discussion, remember that the ten-minute smoke break must be compensated under federal wage and hour laws. It makes no difference whether the employee clocks out.

I sincerely doubt we will see any relief for employers in 2006. If we see any relief, it will be in the form of more conservative judicial decisions by Bush appointees on the federal bench. Check this column for future developments.