Kollman

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.

For those of you who know me personally, you know that my son went to Ohio State. Therefore, you also know that I am watching the Rose Bowl today, hoping that the Buckeyes beat Oregon. The game, however, is starting 45 minutes later than I thought it would, so I have time to blog.

Last year, the first year of the Obama Administration, nothing really happened in the area of labor and employment law directly related to the installation of a pro-union, liberal president. Heck, he hasn’t even been able to appoint a member to the NLRB, which still has only 2 members out of a total of 5. Unfortunately, the president has been able to fill vacancies on the federal bench, and let me tell you, the people he is appointing are far less attuned to management than the Bush appointees.

The health care bill is the big news of 2009. It will probably pass in 2010, and it will probably be a boon to lawyers for many years to come. The more I understand it, the more I hate it. I suspect that at some point, I will be denied health service because my health insurance is too good.

I will certainly have to fly in 2010. I am not looking forward to dealing with new regulations designed to make it appear the government is doing something to make flying safer. I fully expect the government to require everyone to fly naked, shackled to their seats, with privy pots to keep them from leaving their seats. Of course, we will have to pay extra to have the airlines empty the privy pots. Southwest, perhaps, will be the exception.

The government screws up everything it tries to do. That will continue into 2010. I just hope my firm can make some money off the insanity.

Despite all this, I am optimistic about 2010. Why? I have no idea.

On 60 Minutes last night, President Obama referred to Wall Street “Fat Cats.” I thought the President was cooler than that. “Fat cat” is a term coined in the 1920’s, in Baltimore as a matter of fact, to describe rich political donors.

I doubt the President was referring to the rich political donors who helped him get elected president. He was referring, I suspect, to anyone on Wall Street who is wealthy, whether he came by the money honestly or made it with Ponzi schemes like Bernie Madoff. Being wealthy should be a goal, not something that earns you criticism from the President of the United States.

The country would do well to get rid of the fat cats who pour money into political campaigns, whether Democratic or Republican. On the other hand, if the fat cats the President was referring to are merely successful people, I hope this country continues to create fat cats through hard work, intelligence, and initiative.

Fat cats indeed.