Freeman

ARTICLE

Employers Swamped by Good Intentions

Employment Law Is Not a System for Preventing Disputes

OCTOBER 01, 1998 by JAMES L. PAYNE

Filed Under : Regulation

One of the hidden costs of regulation is the intellectual burden of keeping up with it. In many cases, finding out what the rules are can be more than a full-time job. Consider the area of employer-employee relations.

A few months ago, an odd travel brochure arrived in my mail. It wasn’t printed in four colors, and it didn’t invite me to Hawaii or Cancún. No, this brochure offered me Dullsville. Printed on gray paper in blue ink, it urged me to come to the Doubletree Riverside Hotel in Boise, Idaho, to attend an all-day seminar on wage-and-hour legislation. My first reaction was, who would ever go on such an unappealing excursion?

Then I realized that probably I should. I run a small business, and I’m thinking of taking on an employee. Reading this brochure about what’s involved in hiring somebody gave me lots of second thoughts.

It turns out that there isn’t just one law governing wages and hours, but three comprehensive federal acts, plus state laws, as well as all the judicial case law that has grown up over the past half-century. So the eight-hour seminar in Boise barely scratches the surface of this legal specialty. No employer can simply hire a worker on the assumption that if he is fair and reasonable the law will have no quarrel with his behavior. Decades of regulation have put common sense out of the picture, so that only the experts know what’s right and wrong.

The seminar, with its 35 sections on different aspects of employment law, helps employers become experts. It tells them how to define “hours worked,” how to define “regular rate of pay,” and how to define and apply the different types of exemptions from the law. It explains how the law treats time spent on volunteer activities, travel, preparatory activities, on-call duty, sleeping, and going to workshops and conferences. The seminar also covers what the law requires about minimum wages, vacation pay, holiday pay, overtime, jury duty, lunch hours, and work breaks.

Even if you attend this $169 seminar, it doesn’t mean you will avoid problems. Employment law is not a system for preventing disputes. It’s a framework for provoking them, and all employers, even the most saintly, need to know how to navigate the sea of litigation. Hence, the seminar devotes an entire section to these hazards, including a “Step-by-step guide through the civil complaint process,” a segment on “Defenses available to the employer,” and another on “Practical strategies for handling wage/hour claims.”

Regulating Snakes in the Workplace

And even if you become a master of all the wage-and-hour regulation, that would only be a beginning. Congress and the courts have stepped in to regulate many other aspects of employer-employee relations, including discrimination, medical and maternity leave, and accommodation for disabilities. To help employers grapple with these regulations, the Society for Human Resource Management in Alexandria, Virginia, has established a hot line for employers with personnel questions. According to the Washington Post, the hot line receives an average of 300 calls a day and takes nine counselors to handle them.

“Can we fire an employee who just ran over a customer with a forklift?” asked one caller. “Do we have to allow an employee to bring in snakes because his psychiatrist feels it will help him with his phobia?” queried another. One executive called in to ask what they should do about someone who had just died at his desk. The counselor was floored. “Why are you calling me?” she responded. “Call 911.” She ruefully noted that in the rule-bound modern context, many employers seem to have lost their ability to deal with problems on their own. “The first thing they think of is not what should I do, but will I be sued,” she said.

When legislators first came upon the idea of regulating workplace relationships, did they have any idea where this process would lead? Regulations are like potato chips: no one ever stops at just one. Lawmakers can always see more possible wrongs to right, and the courts will keep interpreting and extending the law, until an entire area of human activity is prescribed in vast detail. Instead of being directed against the few bad apples, the law bears down on everyone. Everyone has to keep records, everyone has to submit to audits and inspections, and everyone has to try to master arcane legal concepts that are but tenuously related to what is right, fair, and sensible.

Surely the day will come when even the regulators, sinking ever deeper into the mire of this vexing, irrational system, will be struck by a shining vision: Why not just let people use their own judgment? The results won’t be perfect by any means, but could a system based on freedom be so much worse than what we now have? At least we wouldn’t have to drag ourselves to stupendously boring seminars in Boise when there are mountains to climb, poems to read, and children to be hugged.

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October 1998

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