Kollman

The NLRB, which regulates the nation’s labor laws, has been 3 members short for quite some time. The Democrats blocked Bush’s appointments to the Board, so Republicans have been repaying the favor. The Board should have 5 members. Currently, the Supreme Court is considering whether decisions issued by a 2-member NLRB are legal.

The fight over the Employee Free Choice Act – the card check bill – is not over, at least according to Administration officials and organized labor. They argue that an overhaul of the National Labor Relations Act, and consequently the NLRB, is long overdue. Why? Because unions are not doing well under the current laws. In fact, many unions have stopped going to the NLRB because many of the decisions have not been to their liking.

Before there is an overhaul of those laws, there needs to be a closer examination of what the alleged problems are and why those problems need to be fixed. Have the laws, which have worked for 75 years, not kept pace with cultural changes in America? Or have unions failed to keep pace with cultural changes in America? To use a baseball analogy, if we want more home runs, do we work on getting better players or do we shorten the fences? Unions are asking Congress to shorten the fences, widen the strike zone, reduce the number of umpires, and appoint an outsider to decide who won if the game lasts more than 9 innings. If that doesn’t work, the next thing they will ask for is the imposition of unions of workers, which is basically what we have in the government sector.

Unfortunately, intelligent debate is impossible. Both extremes are irreconcilable, and extremism tends to pervade the issue. Can’t wait to see how it all turns out.

I write numerous columns, as well as pieces for the firm’s website. It is difficult to come up with original material, so I sometimes neglect this blog. Also, it is disappointing when I get more hits on the mediocre blogs than I get on the really good ones.

Nevertheless, I enjoy blogging when the spirit moves me. I know I have promised to do better in the past, but this time I am serious, maybe.

I see Jim Bunning is blocking a piece of legislation in the Senate because he can. I remember Bunning pitching a perfect game against the Mets when I was 12 years old. Now, he’s a crotchety old Senator from Kentucky. Apparently, this is the most initiative he has showed since being elected to the Senate. I’m beginning to think that we need to get rid of all the Republicans and Democrats in Congress. No, that’s a lie. I have been thinking that for quite some time.

The Vice President, as I reported in a quick clip today, is kissing the derrieres of union leaders in Florida. He is promising to ruin business by putting anti-employer people on the NLRB and passing the Employee Free Choice Act, which has nothing to do with free choice. I am embarrassed that Biden and I went to the same law school.

I talked to my daughter’s 5th grade class today about lawyers. I may not be smarter than a 5th grader, but I loved talking to them.

Jay Leno is hosting the tonight show again, and Howard Stern is hosting the Tiger Woods Mistress Beauty Pageant. I can’t help but think that both items are evidence of bad taste.

I hope to have more blogs this month, in good taste and bad. Stay tuned.

I am sitting at home, looking out on two and a half feet of snow, wondering when a power outage will hit Glen Arm, where I live. My power goes out when the wind blows the wrong direction, so I am not being a pessimist by expecting to be in the dark, literally, later today. For now, however, I have power, Internet, and wireless connectivity.

I went to law school in Syracuse, where 2.5 feet of snow is just a big snow storm, not a life altering event. If you haven’t noticed, I left Syracuse right after law school, and I have been back only once. Snow is beautiful, but only if it is located on a ski slope or a mountain you can see from miles away. I think the snow is beautiful on Mt. Rainier, when viewed from sunny, downtown Seattle. OK. Why mince words? I hate this white stuff.

Because this is a labor and employment blog, I should somehow connect the snow with labor and employment. OK. Here goes.

Monday, the snow will still be a factor in whether employees can get to work. The last time I checked, snow was not caused by employers. Yet, for some reason, workplaces will be tortured next week with questions about what to do with employees who could not get to work. Pay them? Make them take vacation? Give them the option to use leave or take the day off without pay? Discipline them?

The law really has nothing to say about snow absences, except that an employer cannot discriminate based on race, sex, age, or other prohibited factors in deciding who gets paid, disciplined, or yelled at for missing work. This is one of those instances where an employer must figure out what is the right thing to do for morale, efficiency, and the best interests of the business. Good luck.

I am a big fan of the Skeptics Guide to the Universe podcast and the science based medicine blog. Both deal with alternative medicine, like homeopathy, acupuncture, and chiropractic, and the conclusion is that alternative medicine is “woo.” Woo is basically belief in phenomena that has no scientific basis, such as fortune telling.

Yet, people ardently believe in woo. Heck, the State of Maryland licenses acupuncturists and chiropractors. I believe you can even get insurance reimbursement for treatment. Moreover, while it is not currently possible to get reimbursement for faith healing, I understand that there was a move afoot to add such reimbursement to the current health care bill. Incredible.

In labor relations, we have our own woo. Safety regulation and enforcement is based on the belief, incorrectly, that employers do not care about the health and safety of their employees. Nevertheless, there is a large group of people who fervently believe that this is true. The government believes that employers fire hardworking, productive employees because of their race, sex, age, or some other characteristics unrelated to job performance. This is also woo. The only time I have seen a hardworking, productive employee fired is when there was another, harder working and more productive employee available, and the company could not afford to employ them both.

While I understand that the workplace cannot be analyzed by scientific means, we should not abandon all logic and reason in deciding how to enforce the nation’s labor and employment laws. We cannot continue to penalize employers trying to remain open by keeping the best employees by imposing legal requirements that reward unproductive employees, or worse, protect incompetent employees from termination.

Unfortunately, I see government embracing the woo in the foreseeable future. Employers are not likely to fare well under a government that believes they are inherently evil and in need of exorcism. Perhaps exorcisms will be reimbursable under Obamacare.

The concept of at will employment is for law school exams and employee handbooks. In the real world, the concept of at will employment has little, if any, usefulness for the average employer. At will employees are merely employees who are not covered by an employment agreement of some duration. Even at will employees, however, are covered by anti-discrimination statutes, wrongful discharge cases, and other labor and employment laws.

No employee should be discharged without an explanation, whether he or she is at will or not. Never rely on the assumption that an employee is “at will,” and therefore someone who can be terminated without a single explanation. The absence of an explanation can give rise to allegations that the reasons violate those labor and employment laws that do cover all at will employees.

Always give a reason, preferably a reason that will resonate with a judge or jury. At will employment? Get over it.