I’m not going to give any specifics, so this post will likely be next to useless; but, I have to confess a certain sympathy with employers when it comes to labor laws. Regular readers of this blog doubtless have me pegged as a lefty, and I do favor laws that have the effect of keeping wages up and promoting a vibrant middle class.
That said, the labor laws I’ve had to wrestle with as an attorney seem to be very technical in their application. By which I mean, it feels as if an employer can get tagged even if the employee was a screw up and the employer was doing their best to abide by the law. In fact, I get the feeling that good employers, on a dollar-to-damage-caused basis, make out a lot worse than bad employers who actively try to screw their employees.
Additionally, the statutory language tends toward the archaic. The relevant laws seem to have been passed in the 30s and not much has changed since then. The end result is that good workers don’t have a lot of protection and bad workers can tie employers in knots if they’re determined to litigate in bad faith.
I guess that’s about all I have to say at the moment without going into a dissertation or talking about any specific cases.
Doug, I think you will find a lot of employment lawyers in Indiana who represent employees who will take issue with what you are saying. If you have a case that’s clearly covered by Title VII, FMLA, ADEA or ADA, you may have a point, but the vast majority of the cases you encounter are protected under the at-will employment doctrine. The vast majority of the cases filed with the EEOC office in Indianapolis are dismissed without a finding of discrimination. If you work for a small employer who is covered by state law, most people don’t want to pursue the case before the Indiana Civil Rights Commission because you don’t have the right to recover attorney’s fees as you do under the applicable federal laws if you prevail. Indiana, on balance, probably has the least pro-employee laws on the books of any state. But we do have that quirky state law that prohibits an employer from discriminating against persons who smoke. Kevin Betz wrote a good article for Nuvo a few years ago that talked about how bad our state laws are from the perspective of an employee.
Oh, I’m sure you’re right. My experience is anecdotal, and I’m biased toward my clients. Overall, I’m sure the law is stacked in favor of employers; but it seems like, in the employment context, I’m having to explain to employers that the resolution of he-said, she-said factual disputes over ticky-tacky violations could lead to big legal bills.
When you get down to it, I think what I really hate are fee shifting statutes.
Isn’t the real problem here that a totally “at will” employment situtation, coupled with inequality of bargaining power, creates a situation where an employer can act in such an arbitrary manner that would be tolerated in most any other contractual situation? As a former federal government lawyer dealing with public sector labor matters, I fully appreciate the problem of the “bad apple” employee that can’t be dealt with effectively, but the flip side is certainly a problem too.
Hear hear Don. We NEED collective bargaining in this state, especially for the growing health care done by huge corporate hospitals.
I wish I could go into it more, but it involves my wife and i can’t, but both the employees and the patients at these huge hospital chains would be a lot better off if things were different. And it’s ridiculous to me that if you choose a profession desperately needed by the population you are at the complete mercy of the employer with ZERO power to change your situation, besides getting out entirely. (and forfeiting a very expensive education while doing so.)
Here is the reality of collective bargaining: A USW represented employee can come to work in a refinery or steel mill drunk or high and, at worst, get company paid rehab.
Having darn near 30 years of employment experience as an “at will employee” now, I honestly don’t know what the problem with it is. If you don’t like your situation, you find another employer. I’ve done it 3 times in the last 10 years.
You know, I was kind of hoping that the NFL would come back as an “at-will” organization. How cool would it be if nobody had contracts, everyone was a free agent, and guys could switch teams at any time? The makeup of a team could completely change game to game.
It’s interesting that you bring up the issue of collective bargaining. I don’t know how many times I’ve had an aggrieved worker in a union shop call me and complain that the union won’t do anything for them to address their grievances. That’s pretty bad given that the union employee is paying money out of his paycheck for the services of his union. The UAW locals in Indiana are particularly bad. Their union management is often only looking out for themselves and could care less about the union workers they are suppose to represent.
As for the fee-shifting statutes, I can tell you that many worthy cases would never be pursued but for the fee-shifting statutes. In many cases, the potential recovery for the unlawful actions of the employer may not even be adequate to cover the attorney’s fees incurred for pursuing the action. The problem I find is that employers are often represented by attorneys who are only interested in running up their legal bill and will drag a case out that should have been settled very early on. Local governments are renowned for paying out much larger amounts to pay attorneys to fight cases than they ultimately wind up paying to settle them. In many of those cases, it would have cost less for the local government to have paid a settlement early on rather than spend so much money litigating the case. The problem is that the decision-maker isn’t paying the legal bills out of his or her own pocket so they have little incentive to hold down the legal bills. Businesses, by comparison, are much more likely to seek an early settlement to hold down costs.
On the cost to litigate versus settle, I know one consideration that often comes into play is a sense that if you settle, you’re going to encourage other litigants to come sniffing around. And, it has been my experience that, when I’ve settled a case, almost like clockwork, I see the plaintiff’s attorney file another suit not too long afterward against the same client — but if I’m able to win a case against them outright, I don’t see that attorney again for awhile.
My data set is pretty limited, so it might just be a coincidence.
Dave: I’m a bit confused. I realize that you may not be able to divulge all the facts, but hospitals are a different situation than a lot of employers, as the different categories of employees need to be in different unions (if the hospital is unionized.)
Those who are up-to-date on this please correct me, but my understanding is that doctors typically cannot be part of a union. Neither can anyone in management or administration. Staff nurses can be unionized as well as allied health professionals, people in clerical positions, security guards, and other non-exempt staff. The Chief Nurse Executive, Nursing Director, and other nurses who work as part of the hospital administration would be exempt employees who would not be eligible to belong to a union. I vaguely remember reading something a few years ago about a National Labor Relations Board decision that indicated a possible change about staff nurses, but it is too late for me to look it up right now.
Anyway, this comment is starting to read like an NLRB ruling. I guess my point is that the situation regarding collective bargaining and hospitals is complex.