John Alan Doran

Dear Santa,

We all got together and put together our wish-list for your visit.  We realize it’s been a fascinating year on the Labor & Employment front.  And we don’t want to seem greedy (and end up on the naughty list) in light of all the recent developments in Labor & Employment law that have started to level the playing field for employers.  But much still needs to be accomplished for employers in order to encourage job creation and reinvestment in our workforce.  Stemming the tide of frivolous litigation and abuse of agency authority would go a long, long way toward that end.  And so, dear Santa, here are just a few things we would like to see in or around our tree next week:

1. A cooperative Congress that can actually get things done.  Employers and employees, alike, suffer from the uncertainty of our current, volatile political climate.
2. We need more judges.  Lots more judges.  Federal judicial vacancies are  delaying justice for employers and employees at a mind-boggling pace, and the highly politicized process of appointing new judges is a mess.
3. A national, unified approach to paid leave.  For multi-state employers, navigating the hopelessly contradictory state laws governing paid leave is daunting, if not impossible.
4. An end to certain states “under-turning” the Supreme Court’s arbitration jurisprudence at every opportunity.  While some states refuse to believe this, there is a controlling federal policy favoring arbitration agreements even in employment, it’s the law of the land.
5. Marijuana-induced clarity.  As more and more states roll out pro-marijuana laws, employers are increasingly caught between a rock and a hard place given the conflicting state and federal laws governing marijuana use.
6. An end to EEOC overreach and litigation abuse.  Courts have repeatedly called out the EEOC for its over-the-top bullying and litigation abuse.  It’s time for something to be done legislatively to curb the agency’s abusive conduct.
7. Simplified, unified, and practical rules determining the existence or non-existence of independent contractor relationships.  The current hodge-podge of separate and distinct contractor tests throughout the states and conflicting tests within the federal government make it nearly impossible to enter into contractor agreements with any assurance that there will not be expensive litigation to follow.
8. Conclusive guidance on LGBT and related protected categories.  Legislative clarity in this arena is long overdue.
9. A simplified, and realistic approach to FLSA white-collar exemptions, and a less pedantic enforcement strategy from the DOL.
10. A Senate vote on the countless agency vacancies that remain open but ready to be filled.  Positions such as the Assistant Secretary of Labor—OSHA, and many more, could be filled in an instant, but won’t be due to gridlock.

And, for a stocking stuffer, how about amending labor and employment laws to make patently clear that the party who prevails in a lawsuit or agency proceeding shall recover costs and attorneys’ fees.  File a bogus unfair labor practice charge, and you pay the price.  Initiate a baseless FLSA collective action, and you pay the price.  The playing field has been turned on its side in this respect, as employers are forced to settle frivolous or specious claims simply to avoid the costs of litigation.  When both sides face the specter of litigation expenses, there will be less abuse and more efficient processing of legitimate claims.