Yesterday on Twitter, a Connecticut legislator posted this:
“There oughta be a law…!” Hey Connecticut, legislators have 5 days to submit ideas for bills. What new laws should the #CTLeg consider?
— Matt Lesser (@MattLesser) January 12, 2015
State Representative Matt Lesser, be careful what you ask for. But since you asked, here’s a modest proposal that I saw recently that ought to be discussed. It’s not perfect, but it brings up an important topic that Connecticut should talk about.
(We won’t, of course. The General Assembly hasn’t shown any interest in this. But humor me just for a minute.)
A former colleague of mine, Michael Kun, of Epstein Becker & Green, recently advanced a proposal to amend federal wage & hour laws to bring them more in line with the way we treat other employment laws. Namely through compromise and settlement. Regardless of your political leanings, it’s an insightful and thoughtful post and definitely worth a read.
Michael’s advances an argument based a theory that I’ve talked about before in so-called “wage-theft” cases: That employers are typically trying to comply with a whole host of laws.
The desire of employers and their counsel to comply with the law plays out thousands of times every day, to the great benefit not just of employers, but of employees. All management-side employment lawyers worth their salt have stories about how they worked with their clients to prevent a manager from terminating an employee’s employment, or cutting an employee’s pay, by explaining the law and the potential repercussions.
But there’s a problem, according to Michael. Federal wage & hour laws “dissuade employers from correcting wage issues.” Why?
Because, unlike other employment laws, the FLSA generally doesn’t permit employers and employees to resolve wage disputes, short of the very litigation or agency complaint that neither employers nor employees really want.
The FLSA forbids the very amicable resolutions that would benefit both employers and employees.
And it’s time to change that.
He proposes a system to resolve complaints with safeguards that are similar to those used in age discrimination cases. I will readily acknowledge that the proposal is far from perfect, but it tackles a subject that for too long has created litigation without creating a fair escape hatch to avoid expensive litigation for employees and employers alike.
Here’s the thing, Representative Lesser, that same system exists under state law too. Employers who discover that they may not have been following wage & hour laws have an incentivenot to disclose it because if they do, even voluntarily, the Connecticut Department of Labor can (and, in some instances, will) require penalties and interest to be paid along with it — even if reasonable people could disagree about whether such violations did, in fact occur or were intentional.
Wage & hour case also are challenging to settle in Connecticut because some lawyers representing employees can use any such voluntarily acknowledgments to prove liability and then litigate these cases for high fee awards all the while assuring their clients they should hold out for nothing less than full capitulation by the employer.
A few years back, I floated the idea of an amnesty program for employers to disclose voluntarily wage & hour violations with a Connecticut Department of Labor official. The official appreciated the sentiment but said it would never fly because the existing legislation would need to be amended. Maybe such a proposal could be done in conjunction with making the penalties for intentional violations stricter.
Regardless, I agree with Michael’s post that ultimately the only ones who benefit from keeping the status quo are the lawyers. We’ll do just fine.
Yes, it’s a bit unconventional. But Representative Lesser — you didn’t want easy proposals right?