National Clothesline
National Clothesline
Can you pass the smell test?
There was an amusing a article in this morning’s paper about how to tell a coworker that he or she has body odor or bad breath.
I did not quarrel with the advice, which was designed to let the employee know in the gentlest way. It was not like George Carlin’s line: “Jim,
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your breath is so bad, it could knock a buzzard off a manure wagon.”
This got me thinking about all the legal problems that can arise out of employees “smelling funny.”
First, what if the smell is caused by certain ethnic foods that the employee eats. Is there potential national origin discrimination?
Second, what if the smell is caused by a medical condition? Is there potential disability discrimination? Is the employee entitled to FMLA leave?
Third, what if the employee cannot wear deodorant because she has a severe allergic reaction to all currently deodorants available? Do we need to accommodate this potential disability?
Fourth, to avoid any type of discrimination charges from an employee being told to shower more often, must the company adopt uniform showering requirements for all employees and enforce the policy companywide?
Fifth, what if the employee has religious reasons for not bathing?
Do clowns smell funny?
Why do we put up with these laws? Several weeks ago, it was disclosed that the federal government is collecting phone records, email, Internet activity, and other personal information concerning law-abiding citizens.
Around the same time, The Wall Street Journal reported that the same government has caused the United States to become one of the worst countries in the world in which to do business.
Even the smallest business must contend with the EPA, I-9s, OSHA, wage and hour laws, tax laws, funny smelling employees, and other requirements that interfere with the ability to make money.
In both cases — spying on Americans and passing more and more anti-business legislation — the government argues that these actions and laws are “necessary.”
If you want to be safe, the government says it is necessary to monitor what you say on Facebook or emails to your daughter at college.
If you want to be “fair” to minorities, women, persons with disabilities, gay men and women, foreign-born workers, employees with bad breath, etc., the government says it is necessary to pass more and more laws.
I am reminded of the quote by William Pitt, a British nobleman who lived around the time of the American Revolution:
Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves.
We seem willing to accept that laws will continue to grow, and the argument that they are necessary is not subject to question. That attitude is wrong.
I am amazed by the insensitivity of our government to the plight of business people to get and keep good employees, and get rid of the bad ones. Once a law is passed, like the Family and Medical Leave Act, there is no effort to make it friendlier to businesses; instead, every sob story about an employee legally being denied leave results in amendments to make sure no one is ever denied leave.
It does not matter to the government that the FMLA creates hardships, or that if an employee out on leave causes the business to lose customers, that jeopardizes the jobs of other workers.
No help from the top
Last week, the Supreme Court let stand a lower court ruling under the Americans with Disabilities Act that could turn employment law on its head.
An employee had become disabled, but his disability did not prevent him from doing another job for the company that was vacant. The company, however, had another candidate more qualified to do the job.
The court said that the disabled employee could sue the company on the ground that accommodating him was more important than having the best people in the job.
Criminal record? No problem!
As I wrote months ago, the EEOC is now taking the position that refusing to hire people with criminal records may be evidence of race discrimination.
In fact, the EEOC appears to be giving minorities with criminal records preference over applicants without criminal records.
The theory is that consideration of criminal records disqualifies more minority candidates than non-minority ones, so the use of the requirement has to be justified by “business necessity.”
It is absolutely ridiculous, yet we put up with it.
Time to push back
I believe that these laws will continue to proliferate until businesses start pushing back. Our government will continue to spy on us until we object, rejecting the argument that spying on us makes us safer.
While you may only be a small business, you have a voice, and you should use it. Write your congressman, senator, state legislators, your government, and tell them how hard it is to run a business with the “necessary” laws they are passing. Tell them that it is “necessary” for them to dial it back a bit.
In my experience, it is rare to find an employer who fires competent workers for bad reasons. Yet, the government views most employers as the “bad guys” in every circumstance, or at least guilty until proven innocent. It’s probably time for employers to correct the notion that employees are saints, and they are devils.
In closing, I am very happy to write articles month after month highlighting how to keep your business out of trouble. I would not mind, however, having fewer topics to discuss because our lawmakers are employing commonsense, not false arguments of necessity. It will never happen if you remain silent.

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Frank Kollman is a partner in the law firm of Kollman & Saucier
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