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.