Dear Mr. President:
Congratulations on your inauguration today! I hope you enjoy the day because when you wake up tomorrow, I suspect that you’ll realize there are a lot of items on your "to-do" list (though taking out the garbage probably isn’t on there anymore.)
With two wars and a recession to deal with, I wanted to bring to your attention an area of law that you might dismiss or overlook as trivial – employment laws. The truth is that federal employment laws should be a cornerstone of your administration because it is these laws that regulate the employers that you need to hire people and get this country out of the economic funk it seems to be in.
You might have missed it with your transition plans, but already employment laws in the United States have changed fairly significantly in 2009. Employers are having to now address amendments to the Americans with Disabilities Act, which broaden the scope of who is disabled. You can read about those changes here.
And just last week, new regulations went into effect changing the way some issues are handled under FMLA. (Don’t get me started on the differences in FMLA and CTFMLA). New rules regarding E-Verify are also effective on February 20, 2009.
Now there is speculation about a whole host of other employment law bills that Congress is considering. Your campaign website certainly listed a wide assortment of changes you’d like to see.
Some bills are now a foregone conclusion, such as the Lilly Ledbetter Fair Pay Act, which survived a cloture vote in the Senate last week and is primed for passage. But others remain under consideration, such as the Employee Free Choice Act. Your recent comments suggest that you are looking for a compromise on EFCA, perhaps.
This blog has remained a decidedly a-political one, so you won’t hear grandstanding from me about how these laws will "hurt" employers or don’t go far enough to protect unions or employees. Rather, let me suggest that you review these proposed bills through a prism that you seem to favor: Is there a problem with our current laws and what is it? Does this particular bill fix the problem? If it does, does it create new problems that didn’t exist before?
Whatever you decide, you should understand the impact that even a bill as innocent as the Ledbetter Fair Pay Act has on employers. Passage of the Fair Pay Act will, in essence, require employers to better document their compensation decisions and then retain documentation of such decisions for years, if not decades. So, while the bill allows workers who may have been discriminated against to sue, it creates more work for human resources professionals. Is this a good use of resources? Perhaps. But it is a classic example of how a bill that is designed to "fix" one area of the law, will create other issues that may be unintended consequences.
My only advice (and as lawyers, we get paid to give advice, so when it is free, take it with a grain of salt) is to seek the counsel of those moderates who understand the impact that every new law has on how businesses are able to function. And be wary of those on both sides who suggest that without passage of certain laws, businesses or unions will not survive. The truth is always somewhere in between.
One of Hartford’s most famous residents, Mark Twain, once said "Independence …. is loyalty to one’s best self and principles, and this is often disloyalty to the general idols and fetishes." The crowds in DC today are a testament to the belief in your character and principles. I look forward to seeing how this all plays out in the months and years ahead.
I wish you and your family well over the next four years. And should you ever need some counsel on employment laws, of course, I’ll be more than willing to assist.
Warmest regards, Daniel A. Schwartz
P.S. My kids say hi to Malia and Sasha.