After health care, the floodgates open
When I first started practicing law in 1977, unions were very active in trying
to organize non-union companies. Under the Civil Rights Act in 1977, there were
no jury trials or punitive damages, and the discrimination laws were much
narrower. There was no Americans with Disabilities Act, and no Family and
Medical Leave Act. Immigration and health care were not the serious political
issues they are today.
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Funding to enforce the nation’s discrimination, labor, and safety laws is being increased, as if to say that
despite 30-plus years of legislation to improve the workplace, employers are
worse than ever. Many of my fellow management labor lawyers are eager to take
on the new business that these changes in the labor and discrimination laws
(including increased funding) will generate.
The problem, however, is that the government is not paying attention to the
American people, much less employers.
Take the case of the Employee Free Choice Act. In September, the Gallup Poll
announced that a majority of Americans disapproves of unions and believes they
harm the U.S. economy. Yet, Congress is poised to amend the National Labor
Relations Act to eliminate secret ballot elections during union organizing
drives.
The federal Department of Labor is hiring more OSHA inspectors and field
investigators, purportedly to improve workplace safety and uncover violations
of wage and hour laws.
There is not, however, a movement to revise the country’s safety and health laws to make workplaces safer, or to make the nation’s wage and hour laws easier to understand (and consequently easier to follow).
Fines do not make workplaces safer; instead, they take money away from employers
that might be used for training, safety equipment, or higher pay.
Currently, the federal government is caught in a Catch-22 over discrimination
laws. If laws are being effective, they should reduce cases of discrimination
being filed.
Yet, politicians accuse the EEOC and the Justice Department of not doing their
jobs if the number of discrimination cases goes down.
Is that not the goal of these laws, namely, the reduction of discrimination? If
the number of cases is going up, shouldn’t that mean that the discrimination laws are not working?
There is an ugly attitude in Congress and the state legislatures toward
business. The President has to assure business that it is not his intent to
punish employers, yet in the same breath he refers to unscrupulous business
people, insurance companies, and health care providers. Which is it?
Further, elected officials think the answer to every problem is to pass another
law. Every law, however, creates its own problems.
Look at the Family and Medical Leave Act, which was the first law signed by
President Bill Clinton in 1993. Congress wants to expand it to allow employees
to demand time off to attend school events for their children. I can think of
hundreds of other good reasons for employees to ask for time off, but once the
government makes time off mandatory, it creates an atmosphere for abuse and
manipulation.
In the coming months, all small, medium, and large businesses must prepare for
the following possibilities:
• Mandated health insurance coverage.
• Amendments to the National Labor Relations Act that result in rampant, and
successful, union organizing.
• More OSHA inspections.
• More wage and hour audits.
• Requirements that employers use the Internet to verify the legal status of their
new hires.
• Expansion of discrimination laws to provide for greater coverage and easier
proof by employees charging discrimination.
Right now, Congress is tied up looking at health care. Once that is resolved,
the floodgates of labor legislation will be opened. Readers should not be
misled by the lack of legislation thus far.
I will report on these developments, but in the meantime, I would appreciate
hearing what you would like to see in this column. Send a letter or e-mail to
National Clothesline, or to me, letting us know what legal topics you find
interesting.
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