National Clothesline
National Clothesline
Do you believe in magic?
For you oldsters, you will recognize the title above as a song by the Lovin’ Spoonful. It is also the name of the book written and recently published by Paul Offit.
Dr. Offit spends a great deal of time convincingly dispelling the notion that alternative medical treatments, such as vitamin C therapy and homeopathy, have any scientific validity.
In fact, they appear to be no more effective than tent-show faith healing. In some cases, these treatments have just the opposite of the intended effect, and cause harm.
The book got me thinking about how we approach many of our legal problems, especially in the area of employment and labor law, with concepts that sound reasonable but have no scientific validity.
For example, in the area of occupational safety and health, compliance standards are adopted all the time without any scientific proof that they will make the project, the employee, or the workplace safer.
In fact, as in the case of vitamins, some safety rules cause more problems than they solve.
Moreover, people — and the government — ignore science. Those people include anti-evolutionists, anti-vaccine people, and climate change deniers. Because the scientific evidence runs contrary to what “they know to be true” or what they want to be true, these individuals ignore the science in favor of their firmly held, unsupported beliefs. No one likes to feel uncomfortable, especially people who strongly believe in something, by finding out that all the evidence shows that his belief is wrong.
In the labor and employment arena, legislators and judges never ask the question: Is there any evidence that this law is working or that it is having its intended effect?
Here are some other questions, for example, that could be asked but just are not:
What effect do minimum wage and overtime laws have on the economy? Do they have a positive or negative effect on anybody? Do we have any idea what the market would pay if there were no minimum wage? What is the evidence to support that conclusion?
When will anti-discrimination laws become obsolete? Never? If never, does that mean that the current laws are not working, or does it mean that discrimination is so ingrained in our culture that we will never be able to solve the problem, just enforce restrictions against it.
Are unions good or bad things? Should we make it easier for employees to be unionized and more difficult for employers to give the other side of the story? If so, why? Do the prohibitions against certain employer conduct during NLRB representation elections really prevent employees from being improperly influenced?
So many of our laws are based on beliefs that are not supported by the evidence. Many laws are based on anecdotes. Someone once said that the plural of anecdote is not facts. Yet, we keep bad and/or ineffective laws on the books, tinkering with them occasionally to accommodate the next anecdote presented to Congress.
We seem to have lost the ability to fix bad laws. It is clear that many of our laws, like the tax code, are hopelessly complicated and outdated. Yet no one seems to be able to come up with a solution. Those who do have no chance of making the solution a substitute for the law because bad laws profit lawyers and other parties. Instead of things getting less complicated, they seem to be getting more so.
Let me give you an anecdote of my own. In my experience, the best employees are frequently the least safety conscious. They are disdainful of anything that slows down their productivity, and safety laws frequently do just that.
Good employees are also very confident in their abilities, and that confidence sometimes translates into carelessness.
Perhaps the Occupational Safety and Health Administration should do a study on the type of employees who violate work rules designed to foster safety. They might find a better answer to the problem of workplace accidents than a policy that merely punishes employers with fines and penalties. Just a thought.
Finally, in unrelated news, many states and municipalities are jumping on the bandwagon to restrict questions to job applicants about criminal records on the theory that they disproportionately punish minority applicants.
Some jurisdictions are barring the use of questions about criminal convictions on employment applications. You may want to check if you are in one of those jurisdictions.

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