Two of my favorite employment law bloggers, Jon Hyman at the Ohio Employer's Law Blog, and Daniel Schwartz at the Connecticut Employment Law Blog, have weighed in on the following question, first posed by Walter Olson at Overlawyered:
If I could press a button and instantly vaporize one sector of employment law....
Olson says age discrimination. According to Olson, "Its beneficiaries are among those needing least assistance. The main cash-and-carry effect of age-bias law is to confer legal leverage on older male holders of desirable jobs, such as managers, pilots, and college professors, who by threatening to raise the issue can extract ampler severance packets than might otherwise be offered them."
Schwartz would rebuild (as opposed to vaporize) leave laws. Apparently in Connecticut employers have to deal with no fewer than six leave laws (yikes!). Schwartz says, "Imagine, for example, an employee who injures his back while on the job, perhaps suffering a permanent partial disability. Six laws may cover what type of leave and time off the employee is entitled to. That seems inefficient and ineffective."
Jon Hyman would vaporize the Fair Labor Standards Act. "The FLSA needs to go because compliance is impossible...I would bet any employer in this country a free wage and hour audit that I can find an FLSA violation in your pay practices...Instead, what employers and employees need is a more streamlined system to ensure that workers are paid a fair wage."
I am with Jon 100%. While I would obviously never advocate for employers paying unfair wages, as a management side employment lawyer I despise the FLSA for my clients. It must be the most plaintiff (and plaintiff lawyer) friendly law on the planet. There are so many complicated requirements, classifications, exemptions, etc employment lawyers can barely get them straight. How do you think that struggling small business owner down the street who is truly doing his best to do the right thing, but made a simple, honest mistake on record-keeping or classification or calculating overtime feels? That honest mistake could literally put that small company out of business once the process server comes knocking with a wage and hour lawsuit. Unfortunately, I've seen it happen.
Even when employers do everything right (which, because the law is so complicated and detailed, is admittedly rare), it's too expensive to fight the case. It's also too risky to fight it, since one tiny slip up could result in a large attorneys' fee award for the plaintiff.
As I've mentioned in previous posts, here in the Middle District of Florida employers are all too familiar with these cases, as we have one of the highest FLSA filing rates in the country. We get calls from recently-served clients, both new and old, all the time. Though we are obviously grateful for the work, I can't help but wince everytime I receive those calls. One of the first things I tell the client during the initial conference is that I feel like the grim reaper -- there really isn't a bright side for the employer in these cases. More often than not the goal is to get out as quickly and cheaply as possible, even when the employer believes it has done everything right. And that, to me, means something needs to change.
What about you -- which sector of employment law would you vaporize?