Frank Kollman

I started to write a post about labor and employment law trends for 2012, and I was stumped.  I have been practicing law over 30 years, and I have not seen one labor or employment law scaled back.  In fact, every time a judicial interpretation of such a law favors the employer, Congress or the state legislature amends the law to kill the interpretation.

Worse yet, it does not matter which party controls Congress, the White House, or the statehouse.  When Republicans are in control, they either do nothing or bow to pressure from labor interest groups that never vote for them anyway.  When Democrats are in control, they have a wealth of liberal and union supporters to pack agencies with people who are pro-union, if not anti-business as well.

No politician wants to be seen as racist by opposing stronger anti-discrimination statutes, heartless by opposing expansion of safety and health regulations, or otherwise "flawed" because they do not support the cause of the moment.  As a result, intelligent and thoughtful labor and employment laws are trumped by emotional ones with both intended and unintended consequences.  Emotional issues generate votes; thoughtful discussion of real problems happens on C-Span, if it happens at all.

As I've said in this blog before, we should not measure success in eradicating workplace discrimination by increasing the reach of laws or increasing the number of lawsuits filed.  Rather, this suggests failure.  I refuse to believe that the proper goal should be stronger laws.  I believe the proper goal should be the substitution of discrimination based on skill and ability for discrimination based on race, sex, age, disability, and so forth.  Rewarding employees because of their race, sex, age, disability and so forth, as opposed to their ability, should never be the goal.

What trends do I expect for 2012?  More of the same, I'm afraid.  It is, after all, an election year.

The loss of productivity starting Thanksgiving week until the new year is staggering.  Even more staggering is trying to figure out holiday closings and determining if staff should be paid.  While my firm has always been generous in this department, a business cannot continue to expand its policy for paying people for not working indefinitely.  Already, our governments are in trouble for paying former government workers for early retirement (namely, not working).  That is a recipe for financial ruin.

Yesterday, my firm announced the holiday closing plan/policy for this year.  I cannot take credit for it.  Pete Saucier, my best friend for over 30 years and my business partner for 18, came up with the following:

"As usual, the firm will be closed this Thursday and Friday.

We will be closing early on December 23 (half-day) and will be closed on December 26 (as Christmas) and  December 30 (as New Year’s Day).  Work will resume regular schedule on January 2, 2012.  New Year’s Eve is not a paid half-holiday, although the Firm reserves the right to close early with pay on that day in years when it is a regular workday so that folks can prepare for celebration.  That is not the case this year.

Anyone who needs staff support during closed periods should make arrangements soon."

I thought I would do a public service and share it with the four people who read my blog.

Happy Thanksgiving.

I just read a case where 4 employees over 50 were fired for using the company's email system to transmit pornographic photographs "on almost a daily basis."  They sued, claiming age discrimination, and their case was just dismissed by a federal appeals court.  Apparently, there was some evidence that a supervisor had made comments suggesting he might have a bias based on age.  It seems someone, probably the lawyer for the old guys, failed to notice that they were SENDING PORNO OVER THE COMPANY'S EMAIL SYSTEM.

When will our lawmakers finally understand that minorities, older workers, women, and other protected groups have members who deserve to be fired.  Equal rights goes both ways, you would hope.  Unfortunately, these anti-discrimination laws give extra rights to the people they are supposed to protect.  This employer, who would have surely been sued if a group of women claimed sexual harassment because they intercepted these pornographic emails, probably spent hundreds of thousands of dollars defending this case.

I will continue to argue that our anti-discrimination laws are a failure.  They do not give equal rights; they create avenues for cranks and opportunists to (1) keep their jobs, (2) get nuisance settlements, and (3) terrorize their employers.  If the civil rights laws were working, anti-discrimination lawsuits would be on the decline.  They are not.

I will be 60 soon.  If I were an employee, that would not give me the right to goof off, send porn from my desk, or act like I was entitled to my job.  Unfortunately, not everyone thinks that way.  I shouldn't complain because these laws give me a living.  It's just getting harder and harder to feel good about the state of the workplace.

The Stock Market today seemed surprised that the Supercommittee had failed to come up with a long-term deficit reduction plan.  I knew that when the committee was formed.  Even the most honorable of members were "born and raised" in the current atmosphere of corruption and partisanship.  No one is allowed to be reasonable or consider good arguments made by the other guys.  Moreover, unless there are campaign contributions to be made or political supporters to fool, nothing tangible can get done.  It's as disgusting as it is troubling.

So, the Stock Market was down by over 2% today, as if no one has been paying attention for the last few weeks.  I trust that Nancy Pelosi and the rest of the Congress, Republicans and Democrats alike, managed their stock portfolios accordingly.  Don't be surprised if historians determine in the future that this Congress made money in the stock market this year.  Mark Twain was right.  Congress is America's only native criminal class.

Today, it was reported that the International Labor Organization, an agency of the United Nations, found that New York State's law prohibiting public employees from striking was a violation of human rights.  I read parts of the report, and I was astounded.  Government employees, who are overpaid, underworked, and generally set for life if they hang in their jobs long enough, do not need another weapon to use to make their jobs cushier or more lucrative.  Already, elected officials who get elected using money contributed by public employee unions are more than willing to give government employees what they want, in return for more political contributions from their unions.  That public employees cannot strike is the only check on the corruption that plagues government employment.

Public employees are essentially overhead.  They do not produce a single product, and they do not make money for their employers.  I realize that it is necessary to have government employees, but it should never be forgotten that the money to fund government must come from private employers and employees who make profits, and consequently pay taxes.  If those private employers and employees fail to make money, they go out of business (unless they are too big to fail, have friends in government who will bail them out, etc.).  People lose their jobs.  The same thing, however, does not happen to government employees.

In the private sector, if employees strike, the employer can hire permanent replacements.  I cannot imagine that this would happen during a government employee strike.  I can only see the faces of those government workers in Wisconsin, occupying the capitol building, looking like they would kill anyone who tried to get in their way.  Imagine what they would do if they were on strike, and the State hired people to do their jobs.  We would need police and ambulances galore, unless of course, they were on strike too.

This is not an issue of human rights.  It is a matter of whether you are prounion or not.  I am not, especially when it comes to government.